Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. NA075842, Charles Sheldon, Judge. Affirmed with modifications.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant, Victoria Ferrell.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant, Sandra Whitmus.
Lisa M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant, Shannon Plummer.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendants, Sandra Whitmus, Victoria Ferrell, and Shannon Plummer, appeal from various felony convictions arising out of their July 18, 2007 entry into an apartment rented by Brandy Hill. All defendants were convicted of: first degree burglary when an occupant of the residence is present (Pen. Code, §§ 459, 667.5, subd. (c)(21)); battery with serious bodily injury (§ 243, subd. (d); and deadly weapon assault. (§ 245, subd. (a)(1).) Ms. Plummer was convicted of robbery. (§ 211.) Both Ms. Whitmus and Ms. Ferrell were convicted of witness intimidation. (§ 136.1, subd. (c)(1).) On appeal, defendants argue there was instructional and sentencing error. We affirm.
All future statutory references are to the Penal Code unless otherwise denoted.
II. THE FACTS
A. Overview
For sufficiency of the evidence purposes, we review the testimony and exhibits, which we have examined, in a light most favorable to the judgments. (Jackson v. Virginia (1979) 443 U.S. 307, 319; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909; People v. Elliot (2005) 37 Cal.4th 453, 466.) In assessing harmless error, we review all of the evidence. (Arizona v. Fulminante (1991) 499 U.S. 279, 307 [federal constitutional error]; People v. Breverman (1998) 19 Cal.4th 142, 178 [Cal. Const., art. VI, § 13 review].) Because many of the issues raised by the parties warrant harmless error analysis, we will set forth the evidence in some detail.
B. Prosecution Case
The prosecution case consisted of the testimony of four witnesses. The principal witness concerning the bulk of the counts was Ms. Hill. Ms. Hill lived in an apartment at 310 Lime Street in Long Beach. Defendants were all convicted of the first degree burglary of Ms. Hill’s residence. Her boyfriend was Francisco Uribe. Prior to the July 18 incident, Ms. Hill had only met Ms. Ferrell probably two or three times. The meetings occurred at Ms. Hill’s apartment. Likewise, Ms. Hill had met Ms. Plummer two or three times. Ms. Hill characterized Ms. Plummer as an acquaintance. Ms. Plummer introduced the codefendant, Steven Noel, as her boyfriend.
Ms. Hill had known Ms. Whitmus for 10 months prior to the July 18 incident. They met in a drug rehabilitation program. Ms. Hill gave a key to the 310 Lime Street apartment to Ms. Whitmus. According to Ms. Hill, this was because she was about to undergo surgery in Bakersfield and would stay with her parents while she recovered. Ms. Hill testified: “Prior to me going, I had asked [Ms. Whitmus] and her boyfriend if they would come and check on my apartment while I was gone. I was going to be gone for a week, I knew for sure, but maybe another week after, I did not know.” Ms. Hill testified, “I asked her to check my apartment from time to time because I was never home.” Once, Ms. Whitmus gave the rent check to the apartment manager. According to Ms. Hill, Ms. Whitmus could spend the night in the Lime Street apartment and they became good friends. But Ms. Hill denied they lived together.
Later, Ms. Hill became involved with her boyfriend, Francisco Uribe, and she was never home. Later Ms. Hill qualified her testimony about never being home and stated: she would be gone five days at a time; she would return to the Lime Street apartment for “like a day, eight hours...”; and then she would return to Mr. Uribe’s Pico Rivera home. But Ms. Hill spent most of her time with Mr. Uribe at his Pico Rivera residence.
On July 16, 2007, Ms. Hill was in her apartment working on a transfer of funds. In making the transfer, Ms. Hill used her automatic teller machine “Check VISA” card. One hour after the transfer was made, Ms. Hill’s check card was missing from her wallet. Present when Ms. Hill discovered the check card was missing were Ms. Ferrell, Ms. Plummer, and Mr. Noel. Ms. Hill then called the bank and cancelled the card.
While communicating with the bank, Ms. Hill received a telephone call from Ms. Whitmus. Ms. Whitmus’s telephone call was placed while Ms. Hill was speaking with a bank representative. Thus, Ms. Hill did not immediately know of the telephone call but learned of it when she retrieved a voicemail. The voicemail recorded Ms. Whitmus stating, ‘“I don’t know who you thing you’re f-ing with, little girl, but I don’t know what you’re doing or what you think you’re doing, but who the hell do you think you are putting a block on the phone.’” Ms. Whitmus ended the message by hanging up in mid-sentence. Ms. Hill did not know what Ms. Whitmus was talking about.
At 11:30 a.m. on July 18, Ms. Hill left a voicemail message for Ms. Whitmus. Ms. Hill described the voicemail message: “I told her that I had changed the locks on the door, that I put what belongings she had in my house outside. I told her she needed to come get her belongings. She knows why I am doing what I am doing. ‘My bank card is gone. I’m very upset with you. I don’t want to argue about it right know. And when things are cooled down I will call you, and will talk to you. Please come get your things.’” Ms. Hill placed Ms. Whitmus’s clothes and computer in a box in front of the Lime Street apartment. Ms. Hill testified only a “few clothes” were placed in a box or bag.
Two hours later, Ms. Hill was sleeping in her apartment with Mr. Uribe, her boyfriend. Ms. Hill was awakened by Ms. Whitmus, Ms. Ferrell, and Ms. Plummer who were all yelling. Ms. Hill then saw Ms. Whitmus forcing entry through a double paned window into the apartment. Ms. Hill testified: “I saw [Ms. Whitmus] kicking the window in. First, taking off the screen, like ripping it off basically and kicking in the window... with her foot.” Ms. Hill testified they were also banging on her security screen on her front door. Both Ms. Whitmus and Ms. Plummer crawled through the window. Ms. Ferrell, who was pregnant at the time, was crouched down by the window yelling: ‘“Bitch, you need to come open this fucking door. Pregnant or not, I’m going to kick your ass, and I’ll go to jail. I don’t care.” Ms. Plummer opened the front door in order to admit Ms. Ferrell who then entered the apartment.
Ms. Hill ordered Ms. Whitmus to leave. According to Ms. Hill, Ms. Whitmus was armed with a steak knife. Ms. Hill testified the steak knife was brandished within six inches of her throat. Ms. Whitmus was swearing at Ms. Hill as they struggled over a telephone. Eventually, the telephone was broken in half and thrown to the ground by Ms. Whitmus. During the incident, Ms. Hill saw a second knife on the floor next to Ms. Whitmus.
Ms. Hill ordered the three women to leave the apartment. Ms. Plummer then punched Ms. Hill in the mouth. This caused Ms. Hill to careen back into her bathroom where she testified the following occurred, “[Ms. Plummer] then grabs me by the head and hitting it into the towel bar in my bathroom.” Then Ms. Ferrell joined with Ms. Plummer in hitting Ms. Hill who was bent over at the waist. A neighbor yelled: ‘“You guys need to get off her now and get out of here. The police are coming.”‘ Yelling at Ms. Hill, the three assailants then left the apartment. Ms. Whitmus picked up a plastic bat and swung it at Ms. Hill’s bookshelf, knocking it over. Ms. Plummer took Ms. Hill’s purse. Ms. Hill then took the purse back and pushed Ms. Plummer out the front door. Ms. Hill’s home telephone did not work and she ran to a nearby convenience store to summon the police. As she was running out of her apartment on July 18, Ms. Hill did not see Mr. Noel.
Ms. Hill placed a telephone call from 401 Atlantic Boulevard to the police and paramedics which we have heard. Ms. Hill identified Ms. Whitmus, Ms. Plummer, and Ms. Ferrell. Ms. Hill described Ms. Whitmus as an unwanted house guest. Ms. Hill said the three women had broken into her apartment through the front window and assaulted her. Ms. Hill also said she was bleeding and her teeth were “busted.”
Ms. Hill ascertained that several items were missing. She discovered her watch, which had been on her wrist prior to the incident, was missing. Ms. Hill’s wrist, where she wore the watch prior to the incident with the three women, was sore. Ms. Hill could not testify which of her three assailants took her watch. Also, one of Ms. Hill’s cellular telephones was missing. A pocket knife belonging to Ms. Hill was likewise missing. The missing watch and knife were later returned by the police to Ms. Hill.
Ms. Hill sustained several injuries in the attack. Ms. Hills’ mouth was swollen and her teeth had been “pushed back” in her words. Treated by a dentist, Ms. Hill was told her teeth were being pushed back in to her gums. In order to save her teeth, the dentist had to perform two root canal procedures. Another year’s work remained to be done on Ms. Hill’s teeth. Ms. Hill testified: “[The dentist] is going to have to crown them. Because as I age, they will turn more gray. Or he will do veneers. And after that, because my bite is off a bit and my teeth before were perfectly straight, I will have to have some orthodontist work done, braces or retainer.” There was blood on the towel rack and floor in her bathroom. Photographs depicting the damage to the apartment and the window broken by Ms. Whitmus, which we have seen, were shown to the jury. Ms. Hill denied using drugs with any of defendants. Two weeks after the July 18 assault, Ms. Hill discovered three methamphetamine pipes in the apartment. At the time Ms. Hill testified on February 14, 2008, she had not used drugs in nearly three years.
Mr. Uribe, Ms. Hill’s boyfriend, also testified. Mr. Uribe had seen Ms. Whitmus at Ms. Hill’s Lime Street apartment “15, 20 times” over a 2 month period. Mr. Uribe described Ms. Whitmus’s presence in Ms. Hill’s apartment thusly, “Sometimes she would, sometimes she wouldn’t.” When testifying at trial, Mr. Uribe said he did not know whether Ms. Whitmus lived at Ms. Hill’s apartment. At the preliminary hearing, Mr. Uribe testified Ms. Whitmus lived in Ms. Hill’s apartment. Mr. Uribe did not know whether Ms. Whitmus paid or assisted in the payment of the rent. The only person he knew who paid the rent was Ms. Hill. Prior to July 18, Mr. Uribe has seen Ms. Ferrell only once in the apartment and that was one or two days before the incident. On that occasion prior to the July 18 incident, Ms. Ferrell was present with Ms. Plummer and Mr. Noel.
On July 18, Mr. Uribe, who did not speak much English, was taking a nap and was awaken by the sound of breaking glass. Ms. Whitmus was attempting to enter the residence through the front window of the apartment. Ms. Whitmus gained entry and approached Ms. Hill with an eight or nine inch knife. Ms. Whitmus was insulting Ms. Hill in an angry loud voice. Ms. Whitmus repeatedly thrust the knife at Ms. Hill. A struggle ensued and Ms. Plummer punched Ms. Hill in the mouth. Ms. Hill then fell towards the bathroom. Meanwhile, Ms. Ferrell told Mr. Uribe not to get involved or contact the police because there was person outside the apartment who was watching.
Mr. Uribe, who was an undocumented alien, then fled. After walking down the stairs, Mr. Uribe saw Mr. Noel. Mr. Uribe described what Mr. Noel said as follows, “He told me that if I didn’t want to have problems, for me not to call the police not to try to come back because he could follow me.” Mr. Uribe was frightened for his life and he ran to a nearby convenience store to look for the police.
Long Beach Police Officer Daniel Arcese arrived at Ms. Hills’ apartment and saw the broken window. Officer Arcese also saw “several items and boxes” outside the apartment. Officer Arcese testified they looked like personal items. Ms. Hill was “semi[-]hysterical” and crying. Ms. Hill can be heard crying on a radio transmission made by an officer who arrived at the apartment. In a radio transmission, an unidentified officer described the incident as a: “415” between roommates; a possible robbery; and a battery. Ms. Hill was holding a bloody towel and was bleeding from the mouth. No defendant was present.
On September 29, 2007, Officer Arcese arrested Ms. Plummer. Ms. Hill’s watch and knife were recovered during the booking process from Ms. Plummer as well as other jewelry and two cellular telephones. Ms. Hill’s watch and knife were returned to her by Detective Gregory Krabbe. One of the telephones recovered from Ms. Plummer had the telephone number for Ms. Ferrell in it.
Detective Krabbe showed a photographic lineup containing Mr. Noel’s picture to Mr. Uribe. Mr. Uribe circled Mr. Noel’s photograph. Mr. Uribe then signed the photographic lineup beneath the Mr. Noel’s picture.
C. Defense
Officer Arcese testified Ms. Hill described Ms. Whitmus as a roommate during an interview after the July 18 incident. Detective Krabbe identified a photograph of the two cellular telephones recovered from Ms. Plummer. Ms. Hill did not identify either of the two telephones as the one taken during the July 18 incident.
Ms. Whitmus testified she was a drug trafficker who had been a methamphetamine user for five or six years and her boyfriend, Timothy Hebrock, was in state prison. Ms. Whitmus and Mr. Hebrock became very close. Ms. Whitmus met Ms. Hill at a motel in December 2006. When cross-examined, Ms. Whitmus changed her testimony and testified they first met in September. Ms. Hill purchased methamphetamine from Mr. Hebrock. In the last week of March, Ms. Whitmus moved “some personal belongings” into Ms. Hill’s Lime Street apartment. Ms. Whitmus described the decision to move into Ms. Hill’s apartment as follows: “ [Ms. Hill] had become unemployed. She was going to have surgery, and prior to surgery, she wouldn’t be able to work anymore, because she had to get ready for it. So she asked me if I would watch her apartment. So she handed me a key. I moved in.” Ms. Whitmus was told she could spend the night in the apartment if she wished. According to Ms. Whitmus, she was a resident in the Lime Street apartment. Ms. Whitmus described their relationship as one similar to that between a godmother and a goddaughter.
Mr. Uribe would also be present and he was a drug dealer according to Ms. Whitmus. Mr. Uribe supplied drugs to Mr. Hebrock. Ms. Hill and all defendants used “dope” according to Ms. Whitmus. Ms. Whitmus described two arguments involving Ms. Whitmus directed at two persons, identified only as Lupe and Romeo, prior to the July 18 incident. The dispute with the person identified only as Lupe involved money and a drug transaction. Similarly, the dispute with the person identified only as Romeo involved an unpaid debt. But when cross-examined, Ms. Whitmus admitted never seeing Ms. Hill ever strike anybody.
Ms. Whitmus testified Ms. Hill was moody or temperamental. Ms. Whitmus became moody when she did not have any narcotics to smoke. Despite their godmother-goddaughter relationship, Ms. Whitmus, who was familiar with different levels of addiction, regularly provided Ms. Hill with methamphetamine. Several weeks prior to July 18, their relationship began to change after Ms. Whitmus refused to provide any more drugs to Ms. Hill. Ms. Whitmus testified about a dispute with Ms. Hill: “She got upset with me at one point because I did not give her any dope. I wouldn’t supply to her.” At another point, Ms. Whitmus testified: “[S[he would get moody.... She will throw a temper tantrum. She will get upset.... She would storm out of the house.” Yet when cross-examined, Ms. Whitmus changed her testimony: “Q [P]rior to that voicemail, did you have any argument with [Ms. Hill] at all? [¶] A No, we never argued.” When pressed on cross-examination about the absence of any arguments with Ms. Hill, Ms. Whitmus testified: “We never argued. Everything was okay.”
Ms. Whitmus attempted to counsel Ms. Hill about the “overuse” of drugs. When Ms. Whitmus was cross-examined, the following occurred: “Q You use drugs with her, correct? [¶] A Yes. [¶] Q You counseled her regarding her overuse of drugs in your opinion? [¶] A Yes by cutting her off.”
Among the symptoms of methamphetamine addiction were: self-destructive behavior; a lowering of standards; self centered thinking; losing respect for others because the addict has no respect for himself or herself; stealing; hurting others if the addict wants to; an inability to function; jaw twitching; continuous weight loss; and acne. According to Ms. Whitmus, a photograph of Ms. Hill revealed symptoms of “deep” methamphetamine addiction. However, despite five or six years of drug use, Ms. Whitmus denied she was a chronic methamphetamine user because she worked as a housekeeper and a caregiver for Vincent Magdelano, who died of Acquired Immune Systems Syndrome the day after the preliminary examination.
On July 18, Ms. Whitmus, while working at Mr. Magdelano’s residence, received a telephone call from Ms. Hill. Ms. Whitmus described the call thusly: “[T]elling me to come pick up my stuff, that it was outside. That she didn’t want to talk about what was going on.” Bewildered by the message, Ms. Whitmus telephoned Ms. Ferrell, who was eight months pregnant, and Ms. Plummer. Ms. Whitmus needed a ride to Ms. Hill’s Lime Street apartment. Ms. Ferrell drove with Ms. Plummer and Ms. Whitmus to Ms. Hill’s apartment. Ms. Whitmus had known Ms. Plummer for “quite a few” years and they used methamphetamine together at Ms. Hill’s apartment.
As they left for the Lime Street apartment, Ms. Whitmus expected Ms. Hill would be present. Upon arriving, Ms. Whitmus tried her key which did not open the lock and knocked on the door about four times. After knocking on the door, Ms. Whitmus did not whether Ms. Hill was present. Ms. Whitmus admitted she then broke and forced open the window. When cross-examined, Ms. Whitmus testified she tried to force open the window before she broke it. Ms. Whitmus’s clothing, which were in plastic trash bags, and her computer were on the porch. Ms. Whitmus testified her purpose in entering the apartment was to make certain all of her “stuff’ had been removed and attempt to resolve the dispute. But when cross-examined, Ms. Whitmus gave slightly different testimony as to whether she thought anybody was home: “Q So when you climbed in the window, you didn’t think anyone was home? A Exactly.”
Upon climbing though the window into the apartment, Ms. Whitmus was confronted by Ms. Hill and Mr. Uribe. Mr. Uribe said he did not want any problems with the police and fled. Ms. Hill, who was yelling, ordered Ms. Whitmus to leave the apartment. Ms. Whitmus described her reaction as follows, “I was telling her to stop screaming at me, to calm down.” Ms. Hill opened the front door and Ms. Ferrell and Ms. Plummer walked into the apartment. A fight then broke out between Ms. Hill and Ms. Plummer. Ms. Whitmus testified: “[Ms. Hill] approached, advanced towards [Ms. Ferrell], waving her arms, telling [Ms. Ferrell] to get out of her fucking house. That’s when [Ms. Plummer] defended herself.” Ms. Hill then pushed Ms. Ferrell. Ms. Whitmus, who was dumbfounded, confused, shocked, insulted, surprised, overwhelmed, bewildered, hurt and concerned about what was happening, denied ever striking Ms. Hill. Ms. Whitmus believed the fight was unnecessary as both Mr. Ferrell and Ms. Hill were hitting each other and bleeding. Ms. Whitmus admitted she did not notify the police of the fight in Ms. Hill’s apartment despite the fact that Ms. Ferrell was injured during the fracas. Ms. Whitmus denied seeing Mr. Noel at the Lime Street residence on July 18, 2007.
Ms. Whitmus admitted she was not an “expert” on the subject of acne. And she admitted people who have acne are not methamphetamine users. Ms. Whitmus admitted she was a methamphetamine user. And she agreed that methamphetamine users tend to be violent and commit theft. Ms. Whitmus further admitted she participated as late as September 12, 2007, in the sales and distribution of methamphetamine when she was arrested. Ms. Whitmus could not recall the specifics of her arrest because she was under the influence of methamphetamine when she was arrested in Long Beach. Ms. Whitmus denied she told the police she was delivering the methamphetamines to a specific address.
D. Rebuttal
Detective Krabbe interviewed Mr. Noel. At first, Mr. Noel denied he was present at Ms. Hill’s apartment. Only later in the discussion did Mr. Noel admit he was present at Ms. Hill’s Lime Street apartment when Ms. Whitmus, Ms. Ferrell, and Ms. Plummer arrived. Mr. Noel indicated he was on the street when the three women arrived at the Lime Street apartment. Mr. Noel said to Detective Krabbe, ‘“I saw a Mexican dude leave.”‘
Long Beach Police Department Detective Don Mauk testified Ms. Whitmus was arrested for possession of nine grams of methamphetamine on September 12, 2007. Ms. Whitmus had just alighted from a car and was standing at the corner of Fourth and Zonaport Streets in Long Beach. Ms. Whitmus: admitted she “just got done with a date”; lied, claiming she was not in possession of drugs; and agreed to let Detective Mauk search her purse. Inside Ms. Whitmus’s purse, Detective Mauk found: methamphetamine; “approximately $379” in cash; and a “pay/owe” sheet which kept track of who purchased drugs from Ms. Whitmus and the amounts paid or owed as a result of the transactions. Ms. Whitmus claimed she was merely delivering the methamphetamine and she would receive some of the drug as her payment for making the delivery. The methamphetamine found in Ms. Whitmus’s possession had a “street” value of close to $500. Ms. Whitmus told Detective Mauk she was unemployed.
Ms. Hill testified that she had placed a block on her home telephone. On July 16, 2007, at approximately 12:30 a.m., Ms. Whitmus called Ms. Hill complaining about the telephone block. Around the same time, there was an “unauthorized check” deposited in Ms. Hill’s bank account.
E. Surrebuttal
Ms. Whitmus testified that while she stayed at the 310 Lime Street apartment, she received collect calls. The calls were from Mr. Hebrock and Ms. Hill’s ex-boyfriend, Michael Williams. Ms. Whitmus paid $300 per month as rent since she began living in the Lime Street apartment in April 2007.
III. DISCUSSION
A. Possessory Interest Argument
1. Defendants’ contention
Defendants argue the trial court should have given the following requested pinpoint instruction, ‘“A person cannot be guilty of burglarizing a residence where one has an unconditional possessory interest in that residence.”’ In People v. Gauze (1975) 15 Cal.3d 709, 714, our Supreme Court held: “[W]e conclude that defendant cannot be guilty of burglarizing his own home. His entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation; only the entry of an intruder could have done so. More importantly, defendant had an absolute right to enter the apartment. This right, unlike that of the store thief in Barry, did not derive from an implied invitation to the public to enter for legal purposes. It was a personal right that could not be conditioned on the consent of defendant’s roommates. Defendant could not be ‘refused admission at the threshold’ of his apartment, or be ‘ejected from the premises after the entry was accomplished.’ [Citation.] He could not, accordingly, commit a burglary in his own home.” (Accord People v. Pendleton (1979) 25 Cal.3d 371, 382; People v. Gill (2008) 159 Cal.App.4th 149, 159-161; People v. Smith (2006) 142 Cal.App.4th 923, 930.) A pinpoint instruction must be given if supported by substantial evidence. (People v. Ward (2005) 36 Cal.4th 186, 214; People v. Marshall (1997) 15 Cal.4th 1, 39.)
2. Ms. Ferrell and Ms. Plummer had no possessory right to the Lime Street apartment.
In Gauze, the defendant was one of three persons residing in an apartment. The assault occurred when the defendant and the victim, a roommate became involved in an argument. The victim returned to their mutual apartment. The defendant returned to the apartment and shot the victim. The defendant was convicted of burglary based upon the intent to commit the aggravated assault on the roommate. (People v. Gauze, supra, 15 Cal.3d at p. 711; see People v. Smith, supra, 142 Cal.App.4th p. 930.) In Gauze, our Supreme Court explained: common law burglary was essentially an offense against habitation and occupancy; the common law clearly sought to protect the right to peacefully enjoy one’s own home free of invasion; in “the law of burglary, in short, a person’s home was truly his castle. (2 Blackstone, Commentaries (Jones ed. 1916) § 258, p. 2430.)”; under the common law, one could not be convicted of burglary for entering his or her own home with felonious intent; and this rule applied not only to sole owners of homes, but also to joint occupants. (People v. Gauze, supra, 15 Cal.3d at p. 712.)
Neither Ms. Ferrell nor Ms. Plummer may secure the benefit of the rule first articulated in this state’s courts in Gauze. Under any scenario of the facts, they never had any possessory interest in the Lime Street apartment. The testimony presented by the prosecution indicated, Ms. Hill and Ms. Ferrell had met two or three times. Ms. Hill and Ms. Plummer likewise had met only two or three times. Ms. Hill characterized Ms. Plummer as an acquaintance. Ms. Whitmus provided somewhat different testimony concerning Ms. Farrell’s and Ms. Plummer’s connection to the Lime Street apartment. Ms. Whitmus had known Ms. Plummer for several years and they used methamphetamine in Ms. Hill’s apartment. But nothing in Ms. Whitmus’s testimony indicated Ms. Ferrell or Ms. Plummer had any occupancy rights to the Lime Street apartment. Thus, there was no substantial evidence Ms. Ferrell or Ms. Plummer had any possessory right to the Lime Street apartment.
The Attorney General relies on People v. Clayton (1998) 65 Cal.App.4th 418, 421-424. In Clayton, the victim’s spouse gave a key to the family residence to the defendant. The defendant then used the key to enter the residence and attack the victim. (People v. Clayton, supra, 65 Cal.App.4th at p. 420.) Our colleagues in Division One of this appellate district held that the husband’s unconditional right of access did not permit the defendant to enter the family residence with an intent to commit a felony. (Id. at pp. 423-424.) The same is true here. There was no substantial evidence Ms. Ferrell and Ms. Plummer had an unconditional possessory interest in the Lime Street apartment. Thus, in the absence of substantial evidence to support the unconditional possessory interest theory as to Ms. Ferrell and Ms. Plummer, the trial court correctly refused to give the requested pinpoint instruction. (People v. Ward, supra, 36 Cal.4th at p. 214; People v. Marshall, supra, 15 Cal.4th at p. 39.)
3. Under any potentially applicable standard of reversible error, the failure to give the requested pinpoint instruction was not sufficiently prejudicial to permit reversal as to Ms. Whitmus.
The issue as to Ms. Whitmus is different. There was testimony: Ms. Whitmus was Ms. Hill’s roommate; Ms. Whitmus lived in the apartment; Ms. Whitmus had a key to the apartment and stored clothes and her computer there; Ms. Whitmus paid $300 per month as rent since she began living in the Lime Street apartment in April 2007; Ms. Hill gave Ms. Whitmus permission to spend the night in the Lime Street apartment; and according to Ms. Whitmus, she could spend the night in the apartment if she wished. There was also evidence which indicated Ms. Hill and Ms. Whitmus were not roommates; merely friends. However, given the aiding and abetting instructions, the jury findings, and the state of the evidence, any error in failing to give the requested pinpoint instruction was harmless beyond a reasonable doubt.
In conducting harmless error analysis, we review all of the evidence and jury findings to determine whether the failure to instruct was prejudicial. (People v Guiton (1993) 4 Cal.4th 1116, 1130; People v. Hayes (1990) 52 Cal.3d 577, 642.) In People v. Wright (2006) 40 Cal.4th 81, 98-99, our Supreme Court set forth the harmless error analysis applicable to this case: “In People v. Sedeno (1974) 10 Cal.3d 703, disapproved on other grounds in People v. Breverman[, supra, 19 Cal.4th [at p.] 165, we held that the failure of the trial court to instruct the jury sua sponte on a lesser included offense was harmless beyond a reasonable doubt under circumstances in which ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury.” (Sedeno, supra, at p. 721.) We have applied this principle in evaluating the prejudicial effect of other instructional errors. (See, e.g., People v. Garrison (1989) 47 Cal.3d 746, 778-779 [where, by finding true a robbery-murder special-circumstance allegation, the jury found the victim was killed in the course of a robbery and any error in burglary-murder special-circumstance instruction was rendered harmless]; cf. People v. Mayberry (1975) 15 Cal.3d 143, 157-158 [finding by jury that victim did not consent to sexual encounter with defendant did not mean that jury necessarily rejected factual predicate to defendant’s affirmative defense of good faith belief in consent].)”
A corollary of this harmless error analysis arises when the jury’s findings necessarily reject the accused’s testimony or theory asserted on appeal. (People v. Maury (2003) 30 Cal.4th 342, 422 [guilty verdict necessarily rejected defendant’s duress defense]; People v. Lewis (2001) 25 Cal.4th 610, 646 [“To render these verdicts, the jury had to find that defendant had already formed the intent to steal when he entered the Rumseys’ apartment and assaulted them, thus necessarily rejecting defendant’s version of the events.”]; People v. Millwee (1998) 18 Cal.4th 96, 158 [“Under these circumstances, there is no possibility the jury would have convicted defendant of any degree or form of murder or unlawful homicide, other than first degree felony murder, which could be committed without intent to kill. The factual issue which defendant now claims was erroneously omitted from the instructions was resolved in a manner adverse to him at trial.”]; People v. Lasko (2000) 23 Cal.4th 101, 114 [jury verdict of second degree murder rather than voluntary manslaughter indicated the jury necessarily found the defendant did not act in self-defense].) For example, in People v. Pulido (1997) 15 Cal.4th 713, 719, the defendant argued he was entitled, sua sponte, to an instruction that he was not liable on a robbery homicide theory for the murder because there was evidence he formed the intent to rob only after an accomplice committed the killing (the “late joiner” defense). Our Supreme Court concluded the defendant was entitled sua sponte to such an instruction. (Id. at pp. 719-726.) But since the jury returned a special circumstance finding which impliedly found the defendant was engaged in a robbery at the time of the killing, and not merely after the fatal shooting, the late joiner issue was necessarily resolved under other instructions. (Id. at pp. 726-727.)
Here, the jury was instructed on aiding and abetting. The jurors impliedly found that all Ms. Whitmus, Ms. Ferrell, and Ms. Plummer all shared the intent upon entering the premises to commit a felony. Further, the jurors impliedly found that all three defendants committed battery with serious bodily injury and assault with a deadly weapon—a knife. Aider and abettor liability is vicarious to the extent that an accused is liable for the conduct of another. (People v. McCoy (2001 25 Cal.4th 1111, 1117 [“aider and abettor’s guilt “is based on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state.”]; see People v. Perez (2005) 35 Cal.4th 1219, 1226 [‘“[a]ccomplice liability [including aider and abettor liability] is “derivative,” that is, it results from an act by the perpetrator to which the accomplice contributed.”’]; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.)
The jury was orally instructed on aiding and abetting as follows: ‘“Persons who are involved in committing or attempting to commit a crime are called principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. [¶] ‘What is a principal? It includes those who actively and directly commit or attempt to commit the act constituting the crime, or those who aid and abet the commission or attempted commission of the act. [¶] A person who aids and abets the commission or attempted commission of a crime - - they do aid and abet if these elements are proved: ‘With knowledge of the unlawful purpose of the perpetrator. [¶] ‘and, two with the intent or purpose of committing or encouraging or facilitating the commission of the crime. [¶] ‘And three, by act or advice, aids or promotes or encourages or instigates the commission of the crime. [¶] ‘A person who aids and abets the commission of a crime need not be present at the scene of the crime. However, mere presence at the scene which doesn’t itself assist does not amount to aiding and abetting. Knowledge that a crime is being committed and failure to stop it does not amount to aiding and abetting. [¶].... Before the commission of the crimes charged an aider and abettor, an aider can withdraw from participation and thus avoid responsibility by doing two things: First, the aider and abettor must notify the other principals known to them the intention to withdraw from the commission; and second, they must do everything to prevent its commission.” The written instructions are consistent in all material respects with the oral instructions.
Ms. Whitmus’s vicarious aider and abettor liability for burglary extended to all of the conduct of Ms. Ferrell and Ms. Plummer prior to the time they fled the Lime Street residence. In People v. Montoya (1994) 7 Cal.4th 1027, 1043, our Supreme Court held: “It is manifest that the increased danger to the personal safety of the occupant, and the increased risk of loss or damage to his or her property contemplated by the statutory proscription, do not terminate at the moment entry is accomplished, but rather continue while the perpetrator remains inside the structure. Certainly, an absent occupant could return at any moment and be faced with the danger created by the prior entry. Thus, one who learns that the perpetrator unlawfully has entered with intent to commit a felony or theft, who forms the requisite intent to assist, and who does assist-by independently contributing to the commission of the crime or by otherwise making it more likely that the crime will be successfully completed than would be the case absent such participation [citation]—logically should be liable as an aider and abettor....” The duration of aider and abettor liability for burglary was discussed in Montoya as follows: “[A] person who, with the requisite knowledge and intent, aids the perpetrator, may be found liable on a theory of aiding and abetting if he or she formed the intent to commit, encourage, or facilitate the commission of a burglary prior to the time the perpetrator finally departed from the structure.” (Id. at pp. 1051-1052.) Ms. Whitmus was liable, apart from her own rights to be on the premises, for the conduct of Ms. Ferrell and Ms. Plummer, both of whom were also convicted of burglary and the aggravated battery and deadly weapon assault charges, who had no unconditional possessory right to enter the Lime Street apartment.
Moreover, it is clear the jury rejected Ms. Whitmus’s testimony. Under Ms. Whitmus’s testimony, she was bewildered by the voicemail which indicated the locks had been changed and innocently secured a ride to the Lime Street apartment. After breaking into the apartment she was the subject of a verbal attack. Ms. Ferrell and Ms. Plummer innocently walked through the front door which had been opened by an angry Ms. Hill. Within seconds, Ms. Hill attacked Ms. Plummer. As the Attorney General correctly notes, had the jury believed Ms. Whitmus, no defendant would have been convicted of burglary or aggravated assault. (See People v. Crowe (2001) 87 Cal.App.4th 86, 96 [the instructional error was harmless because had the jury believed the accused, then no murder or voluntary manslaughter convictions could have been returned]; People v. Mitchell (1986) 183 Cal.App.3d 325, 334 [the instructional error as harmless because if the jury believed the defendant then he would have been acquitted.)
And Ms. Whitmus’s testimony was unbelievable. Ms. Whitmus gave contradictory testimony on Ms. Hill’s alleged argumentativeness prior to the burglary and when they first met. Further, Ms. Whitmus broke the window to enter the apartment and was an admitted five year user of methamphetamine whose boyfriend was in the state penitentiary. Also, when arrested by Detective Mauk for methamphetamine possession and trafficking on September 12, 2007, Ms, Whitmus lied when she denied possessing any drugs. Moreover, Ms. Whitmus’s claim she was acting as drug counselor was ludicrous. Likewise, Ms. Whitmus’s testimony that “cutting off” Ms. Hill was part of the “counseling” process was likewise not credible. Additionally, all defendants fled after the incident. It was uncontradicted Ms. Hill was robbed. It is further uncontradicted Ms. Hill’s watch and knife were found in Ms. Plummer’s possession on September 29, 2007 when she was arrested by Officer Arcese. And the jurors convicted Ms. Whitmus of the aggravated battery and deadly weapon assault on Ms. Hill. Thus, the jury did not believe Ms. Whitmus’s claim that only Ms. Ferrell struck Ms. Hill. The jurors disbelieved Ms. Whitmus’s testimony that she was completely uninvolved in the aggravated battery and deadly weapon assault. Moreover, Ms. Whitmus testified her intent when she broke and forced open the window was merely to insure she had all of her belongings and resolve the misunderstanding. The jury found Ms. Whitmus entered with the apartment with the intent to commit a felony and immediately proceeded to do so. Thus, the failure to give the pinpoint instruction was not sufficiently prejudicial so as to permit reversal under any potentially applicable standard of reversible error given: Ms. Whitmus’s implausible and contradictory testimony which the jury rejected; the jury verdicts as to Ms. Ferrell and Ms. Plummer; and Ms. Whitmus’s derivative liability as an aider and abettor to the burglaries committed by Ms. Ferrell and Ms. Plummer. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Watson (1956) 46 Cal.2d 818, 836.)
In light of our harmless error analysis, we necessarily have not addressed other issues. We need to resolve whether the rule articulated in Gauze applies when the joint occupant, who has been excluded, breaks a window to enter thereby increasing the risk of a violent encounter as distinguished from a “mere entry” through the front door. (People v. Gauze, supra, 15 Cal.3d at p. 715; People v. Gill, supra, 159 Cal.App.4th at p. 161; People v. Smith, supra, 142 Cal.App.4th at p. 932.) Nor do we resolve the question of whether the proposed pinpoint instruction was properly rejected because it was vague in that the legal jargon within it was not sufficiently defined as expressly found by the trial court. Nor do we resolve the issue of whether the proposed pinpoint instruction is overbroad because it included Ms. Ferrell and Ms. Plummer within its sweep when, as a matter of law, they could not claim the benefit of a co-occupant.
B. Failure To Identify Target Offenses
Defendants argue the trial court failed to identify the target offenses for the burglary charges and natural and probable consequence theory. We agree the trial court should have so instructed the jury but any error was harmless beyond a reasonable doubt for the reasons previously discussed. (People v. Prettyman (1996) 14 Cal.4th 248, 268; People v. Failla (1966) 64 Cal.2d 560, 564.)
C. Battery Instructions
Defendants argue the trial court failed to instruct on the lesser included offense of battery. However, the jury was instructed that battery was a lesser included offense of that charged in count 3. And the jurors were instructed as to count 3 that they must determine whether defendants were guilty of the charged offense or a lesser crime—battery. There is no likelihood the jurors misunderstood the trial court’s battery instructions and thus defendants are not entitled to reversal. (People v. Monterroso (2004) 34 Cal.4th 743, 765-766; People v. Mc Peters (1992) 2 Cal.4th 1148, 1191.)
D. Unanimity Instructions
Ms. Ferrell argues that a unanimity instruction should have been given as to count 7. Count 7 alleged Ms. Ferrell and Mr. Noel attempted to dissuade Mr. Uribe from testifying within the meaning of section 136.1, subdivisions (c)(1). As noted, there was testimony Ms. Ferrell told Mr. Uribe not to get involved or contact the police because there was person outside the apartment who was watching. Further, there was evidence Mr. Noel spoke to Mr. Uribe outside the apartment as Ms. Hill was being assaulted. Mr. Uribe was told that if he did not want any problems he should not notify the police and he could not return to the apartment. Mr. Noel threatened to follow Mr. Uribe. Mr. Uribe described what Mr. Noel said as follows, “He told me that if I didn’t want to have problems, for me not to call the police not to try to come back because he could follow me.” The verdict form states that the count 7 victim is Mr. Uribe. Thus, there was evidence of two threats directed at Mr. Uribe—one by Ms. Ferrell and the other by Mr. Noel.
Section 136.1 states in part: “(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [¶] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [¶] (3) For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice. [¶] (b) Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. [¶] (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof. [¶] (3) Arresting or causing or seeking the arrest of any person in connection with that victimization. [¶] (c) Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: [¶] (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person.”
A unanimity instruction is required when the evidence shows more than one act which could constitute the charged offense. (People v. Davis (2005) 36 Cal.4th 510, 561; People v. Diedrich (1982) 31 Cal.3d 263, 280-282.) However, no unanimity instruction is required when the prosecutor elects to rely on specific acts as constituting the charged conduct. (People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Castro (1901) 133 Cal. 11, 13, overruled in part by People v. Jones (1990) 51 Cal.3d 34.) Although the issue is close, we conclude there was no danger the jurors confused what charges and conduct applied to count 7. The following was the prosecutor’s argument concerning count 7: “We got this particular count is the most narrow in terms of the defendant. It’s not under the charge of a criminal threat. It’s Victoria Ferrell. It’s Steven Noel. And the victim in this criminal threat is Mr. Uribe. [¶] So this is basically that instance where Victoria Ferrell tells Mr. Uribe that there is somebody waiting outside. He’s not to contact the police, and if he doesn’t want trouble, and so forth. The same threat is made Mr. Noel out on the stairs.” After describing the elements of dissuading a witness, the prosecutor argued that Mr. Noel committed the count 8 crime while standing out on the stairs and Ms. Ferrell committed her offense, the one charged in count 7 inside Ms. Hill’s apartment: “[W]hat place did this take place?... [T]his is one of the cases where Mr. Noel out on the stairs is not necessarily just acting and aiding and abetting. He is directly involved in dissuading a witness. Telling Mr. Uribe he is not going to be, you know, he is going to be looking for trouble if he reports this to the police. [¶] It actually happens indoors also when Ms. Whitmus points the knife over a Francisco Uribe, says essentially the same thing when Victoria Ferrell also does the same thing.” By contrast, when discussing the burglary, aggravated battery, deadly weapon assault, and robbery charges, the prosecutor focused his argument on aiding and abetting principles. At no time did the prosecutor argue that aiding and abetting principles applied to counts 7.
There is much to be said for Ms. Farrell’s argument that a unanimity instruction should have been given. But the Attorney General has the better argument on the election issue. The prosecutor argued the separate culpability of Ms. Ferrell and Mr. Noel in the context of the distinct places where the threats were made—inside the apartment and outside on the stairway. Thus, although the issue is close, no unanimity instruction was required. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.)
E. Count 6 Instructions
Count 6 charged Ms. Whitmus, Ms. Ferrell, and Ms. Plummer with dissuading a witness in violation of section 136.1, subdivision (c)(1). Instructions were given on all the elements of dissuading a witness. But the instructions were preceded by the following: “In count 7, only, defendants Ferrell and Noel are charged, 136.1 Penal Code.” The trial court then proceeded to instruct the jury on the elements of a violation of section 136.1, subdivision (c)(1). Ms. Whitmus was convicted of dissuading a witness in count 6. Ms. Ferrell and Ms. Plummer were acquitted of the dissuading a witness charge in count 6. Ms. Ferrell argues that the failure to mention that she was charged in count 6 is tantamount to a failure to instruct on the elements of witness dissuasion.
A federal due process violation occurs when there is a reasonable likelihood the instructions misstate or fail to relate the law as the accused suggests. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Kelly (1992) 1 Cal.4th 495, 525-526.) Here, there is no reasonable likelihood the jurors rendered their guilty verdict only as to Ms. Whitmus on the assumption there were no applicable instructions. (People v. Monterroso, supra, 34 Cal.4th at pp. 765-766.) All of the elements of the charged offense of witness dissuasion were read to the jury—the core due process right at issue. (Neder v, United States (1999) 527 U.S. 1, 8-9; People v. Sakarias (2000) 22 Cal.4th 596, 624-625.) In any event, in light of the arguments and other instructions and the state of the evidence, any error was harmless under any potentially applicable standard of reversible error. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
F. Serious Felony Allegations
The information alleges that count 3, “NOTICE: The above offense is a serious felony within the meaning of Penal Code section 1192.7(c).” Ms. Ferrell argues that the evidence does not show that she inflicted the serious bodily injury. Ms. Ferrell reasons that in a future criminal prosecution she may be improperly subject to the claim that her conviction on count 3 for battery with serious bodily injury is a serious felony. We agree with the Attorney General that since no defendant has yet been arrested of, charged with, or convicted of such hypothetical future crimes, the issue raised by Ms. Ferrell and joined in by the others is abstract to the degree we need not decide it. We agree. (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 428; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) § 146, pp. 392-393.)
G. Cumulative Error
Defendants argue the cumulative effect of errors committed by the trial court requires the reversal of their convictions. We disagree. There has been no showing of cumulative prejudicial error of a degree sufficient to permit reversal. (People v. Watson (2008) 43 Cal.4th 652, 705; People v. Boyette (2002) 29 Cal.4th 381, 467-468; People v. Seaton (2001) 26 Cal.4th 598, 675, 691-692.) Defendants received a fair trial. (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Miranda (1987) 44 Cal.3d 57, 123, disapproved on another point in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)
H. Upper Term Arguments
1. Ms. Whitmus
Ms. Whitmus argues the trial court erroneously imposed the upper term of six years for robbery based on her role as a leader in the incident. Ms. Whitmus argues the imposition of the upper term violated her due process rights to a jury trial based upon the holding in Cunningham v. California (2007) 549 U.S. 270, 274-275. However; in 2007, the Legislature amended the determinate sentencing law to vest discretion in trial court judges to impose the upper term without engaging in fact-finding subject to the Fourteenth Amendment due process clause jury trial right. (Stats. 2007, ch. 3; People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2.) Defendants were all sentenced on March 18, 2008. Thus, the selection of the upper term based on Ms. Whitmus’s role as a leader did not violate any of her Fourteenth Amendment due process rights. (People v. Sandoval, supra, 41 Cal.4th at pp. 845-846; see People v. Miller (2008) 164 Cal.App.4th 653, 669.)
2. Ms. Plummer
Ms. Plummer argues the trial court intended to impose the mid-term o four years on the residential robbery count. The trial court stated: “On Ms. Plummer’s case, I’m going to give her the mid-base on count 1, which is four – strike that. [¶] I’m going to give her the mid-base on count 2, which is a the higher term, if possible, which is the 211, and that’s six.” In fact, six years is the upper, not the mid-term. (§§ 211, 212.5, subd. (a).) We agree with the Attorney General the proper course is to allow the trial court to clarify whether it intended to impose a four or six year term.
I. Consecutive Sentences
Defendants argue the trial court erroneously failed to explain why it imposed consecutive sentences and abused its discretion. In terms of the failure to state reasons contention, no objection was interposed thereby forfeiting this argument. (People v. Scott (1994) 9 Cal.4th 331, 356; People v. Neal (1993) 19 Cal.App.4th 1114, 1117.) And, given the gravity and circumstances of the offenses and defendants’ prior records, no abuse of discretion occurred. (People v. Chacon (1995) 37 Cal.App.4th 52, 67; People v. Dunnahoo (1984) 152 Cal.App.3d 561, 579.)
J. Failure To Fix Terms
The parties agree the trial court failed to select the duration of the terms on the counts that were stayed pursuant to section 654, subdivision (a) was error. Upon remittitur issuance, the trial court is to orally select the terms imposed on all counts stayed pursuant section 654, subdivision (a).
K. The Sentencing Arguments Of The Attorney General
First, the Attorney General argues that additional section 1465.8, subdivision (a)(1) court security fees should have been imposed. We agree. Upon remittitur issuance, the judgment is to be modified to impose four court $20 section 1465.8, subdivision (a)(1) court security fees on each defendant. (People v. Walz (2008) 160 Cal.App.4th 1364, 1372-1373; People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.)
Second, the Attorney General argues the amount of presentence credits must be modified to comply with section 2933.1, subdivision (a). Defendants do not dispute the contention of the Attorney General in this regard. Thus, the presentence credits are to be as follows: Ms. Ferrell is to receive 170 days of credit which includes 25 days of conduct credits; Ms. Plummer is to receive 183 days of credit which includes 27 days of conduct credit; and Ms. Whitmus is to receive 189 days of credit which includes 28 days of conduct credit. (§ 2933.1, subd. (a); People v. Kimbell (2008) 168 Cal.App.4th 904, 908.)
Third, the Attorney General correctly notes that the restitution orders appearing in the abstracts of judgment were never orally pronounced. Thus, the restitution orders appearing on the abstract of judgment are reversed. (People v. Mesa (1998) 14 Cal.3d 466, 472; People v. Hartsell (1973) 34 Cal.App.3d 8, 14, disapproved on another point in People v. Karaman (1992) 4 Cal.4th 335, 345.) Upon remittitur issuance, the trial court is to calculate and orally impose restitution. (People v. Brown (2007) 147 Cal.App.4th 1213, 1225; People v. Zackery (2007) 147 Cal.App.4th 380, 386-387.) The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment which reflects the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
Upon remittitur issuance, the trial court is to: clarify whether it is imposing the middle or upper term as to count 2 on Ms. Plummer; select the duration of all stayed terms; impose section 1465.8, subdivision (a)(1) court security fees on all four counts as to all defendants; modify the presentence credit award as set forth in part III(J) of this opinion; and calculate and orally impose restitution. The judgment is affirmed in all other respects. The clerk, under the personal direction of the trial court, is to prepare amended abstracts of judgment and forward them to the Department of Corrections and Rehabilitation.
I concur: ARMSTRONG, J.
MOSK, J., Concurring and Dissenting
I concur with the majority’s conclusions in Sections III, C through K.
In order to affirm the burglary conviction, the majority has developed a novel theory that undermines Supreme Court authority. In short, the majority allows a defendant to be convicted of burglarizing her own dwelling as an accomplice. Accordingly, I dissent with respect to the convictions on the burglary count.
The challenge to the trial court’s refusal to give the pinpoint instruction on the burglary count presents the question of whether the evidence was sufficient to support that instruction. Under People v. Gauze (1975) 15 Cal.3d 709, defendants were entitled to an instruction that advised the jury that a defendant cannot be guilty of burglarizing a dwelling in which that defendant has an unconditional possessory interest, so long as the evidence supported that instruction. The evidence in support of the contention that defendant Sandra Whitmus (Whitmus) was the cotenant of victim Brandy Hill (Hill) warranted such an instruction, and the trial court’s refusal to give that instruction was prejudicial error as to each defendant.
The majority appears to agree that at least as to Whitmus, the evidence may have warranted the pinpoint instruction. Nevertheless, the majority concludes any such error was harmless because, although Whitmus could not burglarize her own apartment, the other defendants could be guilty of burglary as direct perpetrators, and Whitmus could therefore be guilty of burglary on an aiding and abetting theory. Such a unique theory of liability effectively would undermine the longstanding rule articulated in People v. Gauze, supra, 15 Cal.3d 709, based on an irrelevant distinction between direct perpetrators and aiders and abettors, each of whom is tried and punished as a principal under California law. (Pen. Code, §§ 31, 971.) If Whitmus cannot be tried and punished as a principal for the burglary of her apartment committed as a direct perpetrator, it follows that she cannot be tried and punished as a principal for the burglary of her apartment committed as an aider and abettor.
Moreover, although there was evidence that could support a finding that codefendants Victoria Ferrell (Ferrell) and Shannon Plummer (Plummer) burglarized Hill’s apartment while acting as direct perpetrators, those codefendants were nevertheless entitled to the requested pinpoint instruction. In addition to advocating that Plummer and Ferrell were guilty of burglary as direct perpetrators, the prosecution argued in the alternative that they were guilty as aiders and abettors of Whitmus’s burglary of the apartment. As to the latter theory, it was error to refuse to give the pinpoint instruction as to Ferrell and Plummer because if the jury had been properly instructed and found Whitmus had an unconditional possessory interest in the apartment, Whitmus could not have been liable for the burglary of that apartment. And, it follows that Plummer and Ferrell could not have been liable as aiders and abettors of conduct that was not criminal. Because it cannot be determined from the record on which theory the jury found Plummer and Ferrell guilty of burglary, their convictions on the burglary count should be reversed. (See People v. Harris (1994) 9 Cal.4th 407, 419.)
Evidence in Support of Instruction
There was sufficient evidence to support the giving of a pinpoint instruction that a person cannot burglarize a premises in which that person has a possessory interest. Officer Arcese testified that he interviewed Hill after the incident, but did not recall Hill describing Whitmus as her roommate. After refreshing his recollection with a copy of his incident report, however, Officer Arcese recalled that after the incident, Hill characterized her relationship with Whitmus as a “roommate relationship.”
On cross-examination, Hill’s boyfriend, Francisco Uribe (Uribe), admitted that he testified at the preliminary hearing that Whitmus “lived” at Hill’s apartment.
Whitmus testified on her own behalf. She met Hill in December 2006 at the Roadway Inn in Long Beach where Whitmus and her boyfriend, Timothy Hebrock, rented a room. Hill came to that location to “score some dope” from Hebrock. Whitmus “took [Hill] under[ her] wing like [Hill] was [Whitmus’s] daughter. [Whitmus] helped her out. When [Hill] was sick, [Whitmus] was there. When [Hill] needed [Whitmus], [Whitmus] was there.” Whitmus also testified about Hill’s violent behavior, especially in connection with drug use.
At the time of trial, Hebrock was in the Lancaster prison.
At the end of March 2007, Hill was unemployed and scheduled for surgery. Hill asked Whitmus to “watch her apartment” and gave Whitmus a key. Hill told Whitmus that she could move in to Hill’s apartment, and Whitmus moved in. Hill gave Whitmus permission to stay in her apartment any night Whitmus wanted to stay. Hill was not staying at her apartment because she was staying with her boyfriend, Uribe. From March of 2007, Whitmus was living at Hill’s apartment. She moved all of her personal belongings there, and, although she had another place to live, all her clothes were at Hill’s apartment. Significantly, Whitmus “helped” Hill with other bills, including the electric bill. And, according to Whitmus, she paid $300 in rent every month, i.e., she was “helping Hill with the rent.”
On July 18, 2007, Whitmus received a telephone message at work from Hill during which Hill told Whitmus “to come pick up [Whitmus’s] stuff, [which] was outside.” Hill went on to advise Whitmus that Hill did not want to talk about “what was going on....” The message left Whitmus “bewildered and unsure of... what had brought [Hill] to that point.” Hill’s message was “hostile [and] angry,” but Hill did not mention anything about the locks being changed.
Whitmus telephoned Ferrell and asked Ferrell to give her a ride; she also called Plummer. Ferrell arrived with Plummer at Whitmus’s work, and the three women went to Hill’s apartment. Whitmus went upstairs to the apartment, noticed some of her belongings outside, and attempted to unlock the door with her key. When the key would not open the door, Whitmus knocked, but no one answered. Whitmus then went to the window, broke the glass, and gained access to the apartment.
As she stepped into the apartment, she saw Hill and Uribe each in a separate corner of the apartment. Whitmus stopped because she was surprised, but then proceeded into the apartment. Hill approached Whitmus and told her to “get out of the house.” Whitmus asked “what was wrong,” but Hill was “hysterical,” “screaming and angry.” Hill then opened the door and Ferrell and Plummer entered. Whitmus tried to talk to Hill to determine why “this was happening,” but Hill would not calm down.
According to Hill, when she told Whitmus to leave the apartment, Whitmus said, “I don’t know who you think you are. This isn’t your... house. I pay the bills....”
At that point, Hill and Plummer began to argue. Whitmus did not have a knife, nor did Plummer, and Whitmus never hit Hill or stole from her. Whitmus’s only intent in entering the apartment was to “see if any more of [her belongings were] there and to try to talk to [Hill] and resolve this.” At some point, a fight broke out between Hill and Plummer, but Whitmus did not get involved or throw any punches at Hill.
Instructional Error on Burglary
During the prosecutor’s closing argument, the following colloquy took place: “[Prosecutor]: And then as far as red herrings, there is all of this talk about house guests and roommates. The defense has offered to you that you can’t burglarize your own house. That’s an interesting discussion. One wouldn’t think so. But then again, I think burglary, many of you may be surprised to find out all of the different angles burglary encompasses. Walking into a store when they’re open for business, for example. You don’t have an instruction that says you can’t burglarize your own place. [Defense Counsel]: Objection. [The Court]: You may continue your argument. [Prosecutor]: It’s not there. There is no law that says that you’re going to be instructed on it.” [Defense Counsel]: Objection. Misstates the law. [The Court]: Continue, sir, if you would like.” (Italics added.)
Following closing arguments, defendants submitted a joint written request for the following instruction: “A person cannot be guilty of burglarizing a residence where one has an unconditional possessory interest in that residence.” Defendants cited People v. Gauze, supra, 15 Cal.3d 709 in support of the requested instruction. In response to the request, the trial court stated, “I have no definition of what an unconditional possessory interest is per the instructions. [¶] And all four [defense] lawyers signed that they want [the requested instruction]. I’m not giving it.”
As they did in the trial court, defendants rely on the rule articulated in People v. Gauze, supra, 15 Cal.3d 709, and contend that the trial court’s refusal to give the proposed pinpoint instruction was contrary to the supporting evidence and well-established law. According to defendants, that error prejudiced them on the burglary charge because the jury did not have an accurate instruction concerning one of their primary defenses to that charge. The Attorney General disputes that the evidence justified the instruction and argues that any such error was harmless because Whitmus’s testimony about her status as Hill’s cotenant or subtenant was not credible.
In People v. Frye (1998) 18 Cal.4th 894, the court explained the concept of consent in the context of a burglary charge. “Any person who enters a house or building with the intent to commit a felony or theft is guilty of burglary. (§ 459.) The entry need not be a trespass to support a burglary conviction. (People v. Talbot (1966) 64 Cal.2d 691, 700 [51 Cal.Rptr. 417, 414 P.2d 633], overruled on other grounds in People v. Ireland (1969) 70 Cal.2d 522, 540 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323].) Thus, a person who enters for a felonious purpose may be found guilty of burglary even if he enters with the owner’s or occupant’s consent. (People v. Sears (1965) 62 Cal.2d 737, 746 [44 Cal.Rptr. 330, 401 P.2d 938]; People v. Deptula (1962) 58 Cal.2d 225, 228 [23 Cal.Rptr. 366, 373 P.2d 430]; In re Andrew I. (1991) 230 Cal.App.3d 572, 578-579 [281 Cal.Rptr. 570].)” (People v. Frye, supra, 18 Cal.4th at p. 954.)
The court in People v. Frye, supra, 18 Cal.4th 894, then delineated the rule articulated in People v. Gauze, supra, 15 Cal.3d 709, concerning an unconditional possessory interest. “In [People v.] Gauze, supra, 15 Cal.3d 709, the defendant was convicted of burglary after he entered his own apartment with the intent to assault his roommate. The court concluded the defendant could not be guilty of burglarizing his own home, even if he entered with a felonious intent, because burglary requires an entry that invades a possessory right in a building, and must be committed by someone who has no right to be in the building. (Id. at p. 714.) As People v. Pendleton (1979) 25 Cal.3d 371 [158 Cal.Rptr. 343, 599 P.2d 649] (Pendleton) explained, Gauze did not overrule earlier decisions finding burglary convictions proper when there was a consensual entry. (Pendleton, supra, 25 Cal.3d at p. 382.) ‘The law after Gauze is that one may be convicted of burglary even if he enters with consent, provided he does not have an unconditional possessory right to enter.’ (Ibid.; see also People v. Salemme (1992) 2 Cal.App.4th 775, 779-781 [3 Cal.Rptr.2d 398].)” (People v. Frye, supra, 18 Cal.4th at p. 954.)
The rule in People v. Gauze, supra, 15 Cal.3d 709 has sound and rational underpinnings. “[A]s our Supreme Court has observed, the reason why a person cannot be charged with burglarizing his own home is because he has an absolute right to enter his own home. (Gauze, supra, 15 Cal.3d at pp. 712–713.) ‘[N]o danger arises from the mere entry of a person into his own home, no matter what his intent is. He may cause a great deal of mischief once inside. But no emotional distress is suffered, no panic is engendered, and no violence necessarily erupts merely because he walks into his house.’ (Id. at pp. 715–716, italics added.)” (People v. Smith (2006) 142 Cal.App.4th 923, 932.)
Courts following People v. Gauze, supra, 15 Cal.3d 709 have defined the possessory right necessary to invoke the rule set forth in Gauze. “‘The possessory right protected by section 459 [the burglary statute] is the “right to exert control over property to the exclusion of others” or, stated differently, the “right to enter as the occupant of that structure.” [Citation.]’ (People v. Clayton (1998) 65 Cal.App.4th 418, 421, fn. 3 [76 Cal.Rptr.2d 536].)” (People v. Smith, supra, 142 Cal.App.4th at p. 932.)
In this case, the claimed possessory right was based upon Whitmus’s assertion that she was a cotenant with Hill in the apartment. It is well established that, even in the absence of a lease agreement, a tenancy may be created by occupancy with consent. “In Ellingson v. Walsh, O'Connor & Barneson (1940) 15 Cal.2d 673, 675 [104 P.2d 507][,]... [t]he court explained that ‘[t]enancies in property need not necessarily be created by valid leases. One may become a tenant at will or a periodic tenant under an invalid lease, or without any lease at all, by occupancy with consent. Such tenancies carry with them the incidental obligation of rent, and the liability therefore arises not from contract but from the relationship of landlord and tenant. The tenant is liable by operation of law.’ (Ibid.; see also Schmitt v. Felix (1958) 157 Cal.App.2d 642, 647 [321 P.2d 473] [‘liability for rent arises in one of two ways, either from a contractual agreement with the property owner or by actual occupancy of the premises with the owner’s consent....’].)” (ParkMerced Co. v. San Francisco Rent Stabilization & Arbitration Bd. (1989) 215 Cal.App.3d 490, 495, italics added.) And, once a tenancy is created, it cannot be terminated summarily. “A tenancy or other estate at will, however created, may be terminated by the landlord’s giving notice in writing to the tenant... to remove from the premises within a period of not less than 30 days, to be specified in the notice.” (Civ. Code, § 789.)
A tenancy at-will, however, should be distinguished from a mere gratuitous license to occupy a premises at the invitation and sufferance of the person in possession of the premises. (See Qualls v. Lake Berryessa Enterprises, Inc. (1999) 76 Cal.App.4th 1277, 1283-1284; Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 36; 7 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 19:5, pp. 23-24 (8/2004).) Generally, a license to occupy the property of another is revocable at the will of the licensor, without notice, excuse or consideration to the licensee. (6 Miller & Starr, supra, § 15:2, pp. 15-10 to 15-11 (8/2006); 7 Miller & Starr, supra, § 19:5, pp. 23-24 (8/2004); see also Bomberger v. McKelvey (1950) 35 Cal.2d 607, 618; Gladwin v. Stebbins (1852) 2 Cal. 103, 105; Belmont County Water Dist. v. State of California (1976) 65 Cal.App.3d 13, 17.) Thus, a gratuitous license to occupy would not create the unconditional possessory interest required to invoke the rule in People v. Gauze, supra, 15 Cal.3d 709.
At trial, the prosecution contended that Whitmus was, at best, a gratuitous licensee, with no possessory interest in Hill’s apartment, unconditional or otherwise. Defendants, on the other hand, contended that Whitmus had an unconditional possessory interest in Hill’s apartment as a tenant and, as noted, requested an instruction explaining that such an interest could constitute a defense to the burglary charge. “A criminal defendant is entitled, on request, to instructions that pinpoint the theory of the defense case.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) But, “[p]inpoint instructions must be given on request only if there is evidence to support them.” (People v. Stanley (2006) 39 Cal.4th 913, 946.) The evidence supporting a requested pinpoint instruction must be substantial, i.e., it must be such that a reasonable juror could conclude that the facts underlying the instruction exist. “‘“Substantial evidence” in this specific context is defined as evidence which is “sufficient to ‘deserve consideration by the jury, i.e., “evidence from which a jury composed of reasonable men could have concluded”’ that the particular facts underlying the instruction did exist.” (People v. Wickersham (1982) 32 Cal.3d 307, 324 [185 Cal.Rptr. 436, 650 P.2d 311] [citations] quoting from People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1] [citations].)’ (People v. Burnham (1986) 176 Cal.App.3d 1134, 1139-1140 [222 Cal.Rptr. 630].)... However, assessing the credibility of a witness is an exclusive function of the jury and is not to be usurped by the court. (People v. Flannel, supra, 25 Cal.3d at p. 684; People v. Wickersham, supra, 32 Cal.3d at p. 324.) Moreover, ‘[the] fact that evidence may be incredible, or is not of a character to inspire belief, does not authorize the refusal of an instruction based thereon, for that is a question within the exclusive province of the jury.’ (People v. Burnham, supra, 176 Cal.App.3d at p. 1143, quoting People v. Flannel, supra, 25 Cal.3d at p. 684.) [¶] In People v. Speaks (1981) 120 Cal.App.3d 36, 40 [174 Cal.Rptr. 65], this court held that ‘[t]he testimony of one witness, here, the defendant, may constitute substantial evidence [to warrant a requested jury instruction] (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 248, p. 4240; [9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 369(2), p. 426]), and doubts as to the sufficiency of the evidence must be resolved in favor of the accused (People v. Flannel, supra, 25 Cal.3d 668, 68).’ ‘It is clear nothing more than the testimony of a defendant may be sufficient to trigger the duty to instruct.... [Citations.]’ (People v. Burnham, supra, 176 Cal.App.3d at p. 1148.)” (People v. Lemus (1988) 203 Cal.App.3d 470, 477; see People v. Slack (1989) 210 Cal.App.3d 937.)
The evidence in this case, including Whitmus’s testimony about her possessory interest in Hill’s apartment, was such that a reasonable juror could have concluded that Whitmus had an unconditional possessory interest in Hill’s apartment, and, therefore, the trial court was required to give the requested instruction. The following facts constitute evidence sufficient to require the pinpoint instruction: (1) Whitmus testified that Hill gave her a key to the apartment and permission to stay there any time she wanted; (2) Whitmus stated that she was living at the apartment and that all her personal belongings were there; (3) Whitmus unequivocally stated that she paid $300 in monthly rent and also paid bills, such as the electric bill; (4) although Hill disputed that Whitmus paid any rent and asserted that Whitmus paid only one $25 utility bill, she agreed that she gave Whitmus a key and permission to stay at the apartment; (5) Hill also conceded that Whitmus kept personal belongings at the apartment, including a personal desktop computer and clothes; (6) Hill testified that when Whitmus broke into the apartment, she screamed at Hill, “This isn’t your... house. I pay the bills....”; (7) Detective Arcese testified that Hill told him on the day of the incident that Whitmus was her “roommate”; and (8) Uribe testified at the preliminary hearing that Whitmus “lived” with Hill. That evidence, which at a minimum, showed occupancy by consent and payment of rent, was sufficient to allow a reasonable juror to conclude that the facts in support of the requested pinpoint instruction did exist. It was therefore error for the trial court to refuse to give the requested instruction.
Prejudice
The Attorney General contends that, even assuming the trial court erred in refusing to give the pinpoint instruction, any such error was harmless under California’s harmless error standard, as articulated in People v. Watson (1956) 46 Cal.2d 818. According to the Attorney General, there is no reasonable probability that defendants would have received a more favorable result if the requested instruction had been given. The Attorney General argues that because the jury believed Hill’s version of the attack, it also must have believed her testimony that Whitmus was not her roommate and that, in any event, Whitmus’s testimony on the cotenancy issue was not credible.
Under People v. Watson, supra, 46 Cal.2d 818, 836, an error is harmless unless it appears “reasonably probable” the defendant would have achieved a more favorable result had the error not occurred.
Defendants contend that the prosecution had the burden under the circumstances of this case to prove beyond a reasonable doubt that Whitmus did not have an unconditional possessory interest in Hill’s apartment, relying on, inter alia, People v. Davenport (1990) 219 Cal.App.3d 885, 892. According to defendants, because the trial court failed to instruct on the issue of Whitmus’s claimed unconditional possessory interest—which interest, if found by the jury, would have negated an element of burglary—the more rigorous federal harmless error standard applicable to constitutional errors, as articulated in Chapman v. California (1967) 386 U.S. 18, applies.
Under Chapman v. California, supra, 386 U.S. 18, “An instruction that omits a required definition or misdescribes an element of an offense is harmless only if ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”’” (People v. Mayfield (1997) 14 Cal.4th 668, 774, quoting Chapman v. California, supra, 368 U.S. at p. 24.)
Under either standard, the failure to give the requested pinpoint instruction was prejudicial error. There was sufficient evidence on the cotenancy issue for it to be considered by the jury in light of the requested pinpoint instruction. Because the jury did not receive that instruction, however, there is no way to determine whether the jurors considered and resolved the possessory interest issue against defendants. In addition, based on the prosecutor’s argument that there was no instruction supporting defendants’ unconditional possessory interest defense (i.e., “You don’t have an instruction that says you can’t burglarize your own place”), the jury may well have concluded that Whitmus could be guilty of burglary of her own apartment, thereby rendering the unconditional possessory interest issue irrelevant to their determination of the burglary charge. Under these circumstances, there is a reasonable probability that Whitmus may have obtained a more favorable result on the burglary charge had the jury been properly instructed on defendants’ theory that her unconditional possessory interest in the apartment operated as a complete defense to the burglary charge.
As noted above, the jury acquitted defendants on certain counts and did not reach verdicts on some of the special allegations.
Aider and Abettor
If Whitmus could not burglarize her own apartment as a direct perpetrator, she should not be held liable, as an aider and abettor, for Ferrell and Plummer’s burglary of that apartment. Such a rule would undercut the well-established principle in People v. Gauze, supra, 15 Cal.3d 709 that a defendant who has an unconditional interest in a dwelling cannot be liable for burglarizing that dwelling, and would do so based on an inappropriate distinction between direct perpetrators and aiders and abettors.
Whether Whitmus was liable as a direct perpetrator or as an aider and abettor, she was treated for purposes of the trial and punishment on the burglary count as a principal. “Both aiders and abettors and direct perpetrators are principals in the commission of a crime. Penal Code section 31 defines ‘principals’ as ‘[a]ll persons concerned in the commission of a crime... whether they directly commit the act constituting the offense, or aid and abet in its commission....’ (See Pen. Code, § 971 [‘all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals....’].) We have observed, ‘the dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.’ (People v. McCoy (2001) 25 Cal.4th 1111, 1120 [108 Cal.Rptr.2d 188, 24 P.3d 1210].)” (People v. Calhoun (2007) 40 Cal.4th 398, 402.) As a result, if Whitmus cannot be tried and punished as a principal for burglarizing her own apartment as a direct perpetrator, it would be anomalous nevertheless to try and punish her as a principal under an aiding and abetting theory.
Moreover, even if Whitmus could be convicted as an aider and abettor of a burglary of her own apartment—a questionable proposition that was not even raised by the Attorney General—there is no indication as to whether the jury found Whitmus guilty of burglary as a direct perpetrator or as an aider and abettor. Although the evidence strongly suggested that Whitmus was acting, not as an aider and abettor, but as a direct perpetrator with the aid and support of Ferrell and Plummer, there were no express findings to that effect, and any implication of a finding on a direct perpetrator versus an aider and abettor theory would be speculation. I therefore cannot agree with the majority that the jury impliedly found Whitmus guilty of burglary as an aider and abettor. Accordingly, Whitmus’s burglary conviction should be reversed.
Other Defendants
It cannot be determined from the record whether Ferrell and Plummer were convicted of burglary as principals—i.e., they each entered Hill’s apartment with the intent to commit a felony—or whether their burglary convictions were based on an aiding and abetting theory—i.e., they were aware of Whitmus’s intent to enter the apartment to commit a felony, and they each took some action to assist in or further the accomplishment of that alleged burglary. If the jury believed that Whitmus was Hill’s cotenant or subtenant, Whitmus could not be guilty of burglarizing her own apartment. It therefore follows that Ferrell and Plummer could not have aided and abetted that which was not a crime. As a result, to the extent either Ferrell or Plummer was convicted of burglary on the theory that she aided and abetted Whitmus’s burglary of the apartment—as opposed to being convicted as a direct perpetrator—it is probable that she could have obtained a more favorable result on the burglary count if the jury had been properly instructed on the unconditional possessory interest theory. (See People v. Harris, supra, 9 Cal.4th at p. 419 [“‘[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand’”].) Because the instructional error was prejudicial to Ferrell and Plummer, their burglary convictions should also be reversed.
Other Issues
Defendants contend that the trial court committed further prejudicial error when it failed to identify the felonies that defendants intended to commit in connection with the burglary counts, and when, in connection with the aiding and abetting/natural and probable consequences instructions, it failed to identify the target offenses that defendants intended to commit, as well as the offenses that were the natural and probable consequences of those target offenses. Because I have concluded that the burglary convictions should be reversed based on the trial court’s failure to give the requested pinpoint instruction, I do not reach defendants’ other claims of instructional error as they relate to the burglary counts.
Conclusion
I would reverse the convictions of defendants on Count 1, first degree burglary, and would remand the matter to the trial court to exercise its discretion to reconsider its entire sentencing scheme in light of that reversal and the other sentencing issues addressed in the majority opinion. I would otherwise affirm the judgments of conviction.