Opinion
H044116
04-30-2018
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY BENJAMIN GLEASON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS151406A)
I. INTRODUCTION
Defendant Timothy Benjamin Gleason was convicted after jury trial of first degree burglary (Pen. Code, § 459) and attempted first degree burglary (§ 664). The jury found true the allegation that defendant used a deadly weapon, a knife, in the commission of the first degree burglary (§ 12022, subd. (b)(1)). The jury also found true the allegations that a person was present in the residence at the time of the commission of each offense (see § 667.5, subd. (c)(21)). The trial court placed defendant on probation with various terms and conditions, including that he have no contact with the victims.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) the attempted first degree burglary conviction must be reversed because there is insufficient evidence that he had the requisite intent; (2) his trial counsel rendered ineffective assistance by failing to object to the weapon use enhancement allegation (§ 12022, subd. (b)(1)) in the information; (3) the prosecutor committed misconduct during closing argument and, to the extent the claim has been forfeited, his trial counsel rendered ineffective assistance; and (4) the section 667.5, subdivision (c)(21) allegation must be stricken because it does not apply to attempted burglary.
For reasons that we will explain, we agree with defendant's second and fourth contentions. We will order the trial court to strike the weapon use enhancement (§ 12022, subd. (b)(1)) to count 1, and the true finding on the section 667.5, subdivision (c)(21) allegation regarding count 2. After correcting a clerical error concerning the trial court's no-contact order, we will affirm the judgment as modified.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Charges
Defendant was charged by complaint with first degree burglary while a person other than an accomplice was present in the residence (see §§ 459, 667.5, subd. (c)(21)). Following the preliminary examination, defendant was held to answer.
On November 24, 2015, an information was filed charging defendant with first degree burglary (§ 459; count 1) and attempted first degree burglary (§ 664; count 2). The information further alleged as to both counts that a person other than an accomplice was present in the residence during the commission of the offenses (see § 667.5, subd. (c)(21)), and that defendant personally used a deadly and dangerous weapon, a knife, in the commission of the offenses (§ 12022, subd. (b)(1)). During the trial, on motion of the prosecution and outside the presence of the jury, the weapon enhancement allegation (§ 12022, subd. (b)(1)) to count 2, attempted burglary, was dismissed.
B. The Trial Evidence
Defendant lived with his father in a house next door to the same neighbor for years. On the night of August 31, 2015, the next-door neighbor was sleeping at home with his wife and two young daughters. Also present in the house were three visiting relatives.
Just before midnight, the neighbor was awakened by the sound of his dogs barking. The neighbor's wife took the smallest dog, which had come into the house through an open window, back outside. The neighbor went back to sleep, but he was again awakened 10 or 15 minutes later by loud barking. He went outside to calm the dogs and then went back inside to sleep. As he was about to fall asleep, he heard a "really loud noise" by the fence that separates his property from defendant's property and next to the bedroom where he had been trying to sleep. The neighbor opened the window blinds slightly and saw defendant, wearing pants but shirtless, jump the fence into the neighbor's yard and run through the backyard.
The neighbor went outside to check the backyard and front yard but he did not see anything. When the neighbor was inside, he heard a noise. He opened the house door to his garage, which was connected to his house, and turned on the lights.
Defendant had partially entered the garage through a "doggie door," which was at the bottom of a regular door that provided access between the garage and the outside. His head and at least one arm was inside the garage. Defendant was trying to undo the lock and open the door. The neighbor yelled at defendant. The neighbor testified that defendant grabbed a knife that was on the floor and began waiving it at the neighbor with the sharp end pointed at the neighbor. The knife blade and handle were approximately 13 inches long. The neighbor had never seen the knife before.
Defendant yelled at his neighbor. The neighbor, who did not speak English and who had the assistance of a Spanish interpreter at trial, testified that he did not understand everything defendant was saying. Several times defendant said "bad words" such as "fucker," "motherfucker," or something like that, as well as "something about 'I'm killing,' 'I'm killing.' " Defendant appeared mad. He had never previously threatened the neighbor.
The neighbor testified that he kicked defendant's wrist and that defendant let go of the knife. The neighbor moved the knife so defendant could not reach it. Defendant quickly backed out from the dog door, ran through the neighbor's backyard, jumped the fence, and went into his own house.
The neighbor's wife testified that she was behind her husband when he opened the house door to the garage and found defendant inside the garage. She saw her husband kick and "knock[] down the knife" from defendant. The wife was very afraid and did not know why defendant was at the house that night. She had never had any interaction with him.
The neighbor or his wife called 911, and the neighbor spoke to the dispatcher with the assistance of a Spanish interpreter, who the dispatcher brought into the call. A recording of the call was played for the jury, and a transcript of the call was admitted into evidence. The transcript of the call included an English translation for Spanish spoken during the call.
The neighbor reported to the 911 dispatcher that the son of his next-door neighbor had broken into his house. The neighbor also told an unidentified female in the background during the 911 call that defendant "had a knife" and that the neighbor "took it away from him." The interpreter thereafter told the 911 dispatcher, "I think I overheard the gentleman say that the suspect had a knife and he grabbed it." The neighbor later confirmed to the dispatcher that defendant had a knife, that defendant "threw/dropped it inside," and that the neighbor "was able to take it away from him." The neighbor also stated that when he saw defendant, defendant "dropped the knife in the garage and he took off running."
About four and a half minutes into the call, the neighbor told the dispatcher that a person, eventually determined to be defendant, was knocking on the front door. The dispatcher warned the neighbor not to answer the door and confirmed that all the neighbor's doors and windows were locked. About two minutes later, the neighbor stated that the person was still outside his front door "crying or talking, yelling, I don't know what."
The dispatcher asked the neighbor whether defendant had a weapon. The neighbor indicated that he could not see, and that he did not want to get close. The dispatcher later confirmed that the neighbor could keep everyone inside the house securely and indicated that the police would be there shortly.
More than eight and a half minutes into the call, the neighbor stated that he could hear the person crying outside the door. Thereafter, yelling and banging could be heard on the call. The 911 dispatcher asked, "What's that? Is that the person yelling in the background?" The neighbor responded affirmatively and indicated that the person was alone outside and "knocking on the door." About nine and a half minutes into the call, the dispatcher asked, "Was[] that banging noise was that him knocking on the door?" The neighbor responded affirmatively. Shortly thereafter, the dispatcher told the neighbor that the police were on scene, but that the neighbor should not open the door until the police came to him.
At trial, the neighbor testified that, while he was speaking to the 911 dispatcher, defendant came to his front door and banged loudly on the door. Defendant yelled and said profanities such as " 'fuckers' or something like that." He sounded mad and upset. The neighbor testified that defendant was banging on the door for about three of the five or eight minutes that defendant was at the door before the police arrived. The neighbor also testified that defendant started crying before the police arrived. The neighbor felt afraid for his family.
The neighbor's wife similarly testified that defendant was banging on the front door and screaming "bad" words a few minutes into the 911 call. The wife was afraid for her husband and daughters.
The neighbor had video cameras on the outside of his house, including near the side door to the garage and near the front door. Video recordings from the night of the incident were played for the jury. The recordings did not have any sound. The neighbor testified that, based on one of the videos, defendant appeared to have tried to enter the side door to the garage shortly before midnight, around the time the neighbor was first awakened by his dogs barking. Defendant apparently was unable to open the door at that time, so he left. Around 12:06 a.m., defendant tried to come in through the dog door. A few minutes later, defendant went to the neighbor's front door. The neighbor testified that defendant was yelling and banging on the door, and that "it wasn't until towards the end," "a little before the officers arrived," that he heard defendant crying.
Soledad Police Sergeant Jorge Arreola and another officer were dispatched to the scene. Upon arrival, Sergeant Arreola saw defendant shirtless, crying, and banging on the neighbor's front door. Sergeant Arreola did not have any difficulty communicating with defendant and defendant complied with orders. Defendant was told to turn around and approach the officers. As he did so, his hands were in the air and he said, "I'm sorry, I'm sorry." Defendant was ordered to the ground. As Sergeant Arreola approached defendant who was lying on the ground, defendant verbally threatened him with words to the effect of, "I can get you in a moment" or "I can get you in a second." Defendant was handcuffed without incident. When asked what he was doing there, defendant stated something to the effect of, "They killed, they killed," in reference to the killing of a cat. Sergeant Arreola believed defendant was intoxicated because he had a strong odor of alcohol, his speech was slightly slurred, he swayed, and he acknowledged that he drank a lot that night. His pants were also wet in the groin area.
Sergeant Arreola interviewed the neighbor and collected the knife from the garage. Sergeant Arreola testified that the neighbor did not tell the him that defendant had yelled profanities, that defendant had said something about "killing," that defendant had swung the knife at him, or that the neighbor had kicked the knife out of defendant's hand. The neighbor only reported that when defendant saw him in the garage, defendant "dropped" the knife and exited the dog door. The sergeant did not specifically ask the neighbor whether defendant had waived the knife at him.
Sergeant Arreola and the other officer were the only police officers on duty in Soledad that night. As a result, the sergeant had to budget his time. He interviewed the neighbor for five to 10 minutes and collected the knife from the garage. He did not interview the neighbor's wife or anyone else in the house because he believed he had already established the elements of a crime by speaking to the neighbor. He also felt that "if things needed to be done later, . . . the district attorney's office would make that request of [him]," which was what occurred in this case when he conducted a follow up interview with the neighbor and his wife on April 27, 2016, more than seven months after the incident.
While defendant was transported to the police department, he was very agitated and very angry. He yelled foul language at Sergeant Arreola for a "long drawn out" time, including stating, "Fuck you, fuck you. My life doesn't mean anything." Defendant was "challenging" the sergeant. Defendant also angrily slammed his upper body and head against the plexiglass in the rear of the police vehicle.
Defendant did not testify at trial.
C. The Verdicts and Sentencing
In August 2016, the jury found defendant guilty of first degree burglary (§ 459; count 1) and attempted first degree burglary (§ 664; count 2). The jury also found that a person was present in the residence at the time of the commission of both offenses (§ 667.5, subd. (c)(21)). The jury further found that defendant used a deadly weapon, a knife, in the commission of the first degree burglary (§ 12022, subd. (b)(1)).
On October 21, 2016, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve one year in county jail. As a condition of probation the court also ordered defendant to have no direct or indirect contact with the "victims," including contact by telephone, writing, or computer, or through another person. The court emphasized that the no-contact order applied to " 'victims' plural," meaning "anyone who resides in that house" where the offenses were committed.
The minutes from the October 21, 2016 sentencing hearing incorrectly indicate that the no-contact order was limited to protecting only the one "victim" who had confronted defendant during the burglary. We will order the minutes corrected accordingly.
III. DISCUSSION
A. Sufficiency of the Evidence of Attempted Burglary
Defendant contends that his conviction for attempted first degree burglary must be reversed because there is insufficient evidence that he had the intent to (1) make an unlawful entry at the front door and (2) commit larceny or a felony inside the home. The Attorney General contends that substantial evidence supports the conviction.
1. The standard of review
"The law we apply in assessing a claim of sufficiency of the evidence is well established: ' " ' "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " ' [Citation.] The standard is the same under the state and federal due process clauses. [Citation.] 'We presume " 'in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved." [Citation.]' [Citation.]" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294 (Gonzales).) If "the trier of fact has relied on inferences, those inferences must be reasonable. An inference is not reasonable if it is based only on speculation. [Citation.]" ( People v. Holt (1997) 15 Cal.4th 619, 669 (Holt).)
2. Attempted burglary
A person who enters a house "with intent to commit . . . larceny or any felony is guilty of burglary." (§ 459.) Burglary of an inhabited dwelling house is first degree burglary. (§ 460, subd. (a).) "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.) Thus, attempted first degree burglary requires proof that the defendant had the intent to enter a residence for the purpose of committing a felony or theft. (See People v. Prince (2007) 40 Cal.4th 1179, 1255, 1258.) Whether the defendant had the requisite intent is " ' "rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence." [Citation.]' [Citation.]" (Holt, supra, 15 Cal.4th at pp. 669-670.) In this case, the jury was instructed pursuant to CALCRIM No. 460 that a person is guilty of attempted residential burglary "even if, after taking a direct step towards committing the crime, he or she abandoned further efforts to complete the crime or if his or her attempt failed or was interrupted by someone or something beyond his or her control." (See People v. Weddington (2016) 246 Cal.App.4th 468, 479-480 (Weddington).)
3. Analysis
Substantial evidence supports the finding that defendant had the intent to enter his neighbor's front door for the purpose of committing a felony or theft. Only a few minutes earlier, around midnight, defendant had twice tried to enter the neighbor's residence through the garage. The second time, defendant was able to partially enter the dog door and was attempting to unlock the door when he was confronted by his neighbor. Upon seeing his neighbor, defendant waived the knife at him, angrily yelled profanities, and referred to killing. Defendant exited the garage only after the neighbor forced defendant to drop the knife by kicking his hand and moving the knife out of his reach.
Just a few minutes later, defendant reappeared at the neighbor's front door while the neighbor was talking to a 911 dispatcher. Defendant again appeared mad, and he continued yelling and screaming profanities as he loudly banged on the door for an extended period of minutes. Defendant was yelling and banging so loudly that the dispatcher could hear the noises. Both the neighbor and his wife were afraid, despite being secure in their house. In response to the dispatcher's question regarding whether defendant had a weapon, the neighbor indicated that he did not want to get close to where defendant was located to determine whether he had a weapon.
Even after the police arrived, defendant continued to exhibit threatening and aggressive behavior. While lying on the ground as Sergeant Arreola approached him, defendant threatened, "I can get you in a moment" or "I can get you in a second." He also was very agitated and angry when being transported to the police department, yelling foul language, "challenging" the sergeant, and angrily slamming his body and head against the plexiglass in the rear of the police vehicle.
The evidence thus reflects that defendant repeatedly tried to enter his neighbor's residence around midnight—first through the garage and then through the front door. When defendant tried to enter through the garage, he had a knife which he used to threaten the neighbor. The jury could reasonably conclude that by breaking into the residence at night with a knife when the residents would likely have been sleeping, while apparently under the belief that the neighbor had done a wrong by killing a cat, defendant either intended to steal from his neighbors or harm them. Given the circumstances of the entry into the garage, defendant's repeated banging on the front door and screaming of foul language only a few minutes later "was not the behavior of an innocent visitor to a neighbor[]." (Weddington, supra, 246 Cal.App.4th at p. 480.) Rather, his subsequent behavior at the front door was consistent with his behavior in the garage where he had gained entry only minutes before—angry in demeanor, yelling obscenities, and wanting to gain entry in the middle of the night based on a perception that his neighbor had killed a cat. The jury could reasonably conclude, as the prosecution argued below, that defendant came back because "he want[ed] to get in," and "he went back to finish the job. But he was stopped because the door was locked, because they didn't let him in." Based on the record, including the shortness of time between defendant's attempt to gain entry through the garage and his appearance at the front door, as well as his behavior at the front door, it was not speculation for the jury to infer that defendant intended to enter the residence if he was able to gain entry through the front door. Moreover, the jury could reasonably conclude that defendant had the intent to enter the neighbor's house for the same purpose that he had only a minutes earlier when he partially entered through the dog door with a knife: to commit theft, assault with a deadly weapon, or assault with force likely to cause great bodily injury. Regarding an assault, although defendant no longer had a weapon on him when he was at the front door, the jury could reasonably conclude, based on defendant's conduct up to that point as well as his continued threatening and physically aggressive behavior with the police thereafter, that he would commit more than a simple assault, either by his own hand or with an object from the neighbor's residence. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028 ["the use of hands or fists alone may support a conviction of assault 'by means of force likely to produce great bodily injury' "].) In sum, considering the entirety of defendant's conduct that night, a reasonable trier of fact could find beyond a reasonable doubt that defendant intended to enter the neighbor's residence through the front door for the purpose of committing a felony or theft. (See Gonzales, supra, 52 Cal.4th at p. 294.)
Defendant contends that there is insufficient evidence that he had the specific intent to make an unlawful entry at the front door and the specific intent to commit theft, assault with a deadly weapon, or assault with force likely to produce great bodily injury at the time of entry. He argues that his behavior at the front door, which included crying, was "fundamentally different" than his conduct in entering the dog door, and that his conduct at the front door was "wholly consistent with other intentions," such as wanting to confront his neighbors on their porch, or mistakenly believing he was at his own house.
In support of this argument, defendant relies on cases involving a burglary and an attempted burglary at different residences. Based on those cases, defendant contends that a burglary provides a reasonable basis for inferring the requisite intent for an attempted burglary if the defendant's conduct in the two incidents are the same or consistent. He contends that his conduct at the front door was dissimilar to his conduct in the garage, and thus the jury could only speculate as to his intent at the front door.
The cases defendant cites are not helpful to his argument because they involve different residences. In this case, defendant returned to the same residence within minutes over a perceived injustice concerning a cat killing.
Further, we are not persuaded by defendant's argument that his behavior at the front door was "fundamentally different" from his behavior at the garage. Although defendant was crying by the time the police arrived, he was not crying during the entirety of the time he was at the front door. Rather, the evidence reflects that he was angry, banging loudly, and yelling obscenities, consistent with his behavior in the garage. Moreover, he continued to exhibit anger, aggressiveness, and threatening behavior even later with the police. The jury could reasonably conclude that defendant's limited crying on the front porch did not reflect a change of intent from when he entered the garage, but instead reflected his emotional state regarding the purported cat killing and/or frustration in not being able to gain entry through the front door. Likewise, defendant's angry and aggressive behavior at the front door in the middle of the night, shortly after he had already tried to break in through the garage and threatened the neighbor with a knife, was inconsistent with an inference that he wanted to have a neighborly discussion outside on the front porch. Further, the fact that defendant returned to his own house between the time of the garage break-in and the front porch episode negates an inference that defendant mistakenly believed the neighbor's front porch was his own front porch. Indeed on appeal defendant acknowledges that the evidence reflects he was "trying to get [the neighbor] to answer his front door." The jury could reasonably conclude that defendant was trying a new method to get into the house, and that if the neighbor had opened the door, defendant would have entered the house at that point for the same purpose that he had only a few minutes earlier: to steal, to commit an assault with a deadly weapon obtained from inside the home, or to commit an assault with force likely to cause great bodily injury over the perceived injustice of a cat killing. (See People v. Frye (1998) 18 Cal.4th 894, 954 ["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"]; accord, People v. Castaneda (2011) 51 Cal.4th 1292, 1326.)
Even assuming the facts identified by defendant on appeal could support a finding that he did not intend to enter his neighbor's house through the front door for the purpose of committing a felony or theft, the existence of such an alternative conclusion does not require reversal on appeal. " 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]' [Citation.]" (People v. Thomas (1992) 2 Cal.4th 489, 514; accord, People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) A reviewing court does not reweigh the evidence. (Albillar, supra, at p. 60.) Here, as explained above, the circumstances of defendant's prior garage break-in, his conduct on the front porch, and his continued angry and aggressive behavior with the police reasonably justify the jury's finding that defendant had the intent to enter the neighbor's house through the front door for the purpose of committing a felony or theft.
B. Ineffective Assistance of Counsel for Failing to Object to the Weapon Enhancement Allegation
Defendant contends his trial counsel rendered ineffective assistance by failing to object to an enhancement allegation in the information on count 1 (first degree burglary; § 459) for personally using a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). Defendant argues that the evidence at the preliminary examination showed, at most, that he was armed with a knife, and that the evidence did not show that he used the knife.
The Attorney General contends that evidence at a preliminary examination only needs to give the defendant notice of the offenses and enhancements, and that defendant in this case had sufficient notice of the weapon use enhancement based on the evidence presented on the preliminary examination. The Attorney General further contends that defendant fails to establish ineffective assistance of counsel.
1. Proceedings below
Defendant was charged by complaint with first degree burglary while a person other than an accomplice was present in the residence (§§ 459, 667.5, subd. (c)(21)). No weapon use enhancement (§ 12022, subd. (b)(1)) was charged at that time.
At the preliminary examination, Sergeant Arreola testified, but the next-door neighbor did not testify. Sergeant Arreola testified that the neighbor reported seeing defendant partially through the dog door, with his head and arm in the garage and his body still outside. The neighbor further reported that defendant "was holding a kitchen knife and at the same time was trying to unlock the side door" in the neighbor's garage. As the neighbor approached defendant, defendant "suddenly dropped the knife inside the garage and pulled himself out and left." Following the preliminary examination, defendant was held to answer.
The information filed by the prosecution added to the original first degree burglary charge an allegation that defendant personally used a deadly and dangerous weapon, a knife, in the commission of the offense (§ 12022, subd. (b)(1)). At trial, the neighbor testified that when he saw defendant in the dog door, he yelled at defendant. The neighbor testified that defendant grabbed a knife that was on the floor, waived it with the sharp end pointed at the neighbor, and angrily yelled profanities as well as "something about 'I'm killing,' 'I'm killing.' " The neighbor further testified that he kicked defendant's wrist, that defendant let go of the knife, and that the neighbor moved the knife out of defendant's reach.
2. Applicable law
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., [a reasonable probability] that, ' " 'but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 569; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)
" 'California law under sections 739 and 1009 and relevant cases permit amendment of the information to add charges or enhancements which are supported by the actual evidence at the preliminary hearing, provided the facts show due notice by proof to the accused.' [Citations.] [¶] Under section 739, '[the] law is settled that unless the magistrate makes factual findings to the contrary, the prosecution may amend the information after the preliminary hearing to charge any offense shown by the evidence adduced at the preliminary hearing provided the new crime is transactionally related to the crimes for which the defendant has previously been held to answer.' [Citations.] 'Under the case law interpreting section 1009, the test applied is whether or not the amendment changes the offense charged to one not shown by the evidence taken at the preliminary examination. [Citation.]' [Citation.] As long as the above standards are met, there is no bar to adding to the information enhancement allegations that were not charged in the complaint." (People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 764 (Mendella).) In other words, the prosecution is barred from "adding to the information enhancement allegations that were not charged in the complaint" unless "the evidence introduced at the preliminary examination was in fact sufficient to support" the allegations. (Ibid. [addressing great bodily injury enhancement]; see People v. Rogers (2016) 245 Cal.App.4th 1353, 1362-1364.)
Section 739 states in part: "When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney . . . to file . . . an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed." (Italics added.)
Section 1009 states in part: "An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination." (Italics added.)
Regarding the weapon use enhancement at issue in this case, section 12022, subdivision (b)(1) provides that "[a] person who personally uses a deadly or dangerous weapon in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for one year." (Italics added.) " 'In order to find "true" a section 12022[, subdivision (b)] allegation, a fact finder must conclude that, during the crime . . . , the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death. [Citations.]' [Citation.]" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1197 (Hajek), overruled in part on another ground by People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
In determining whether a person "uses" a deadly or dangerous weapon under section 12022, subdivision (b)(1), courts have relied on cases interpreting the same term in the context of the sentencing enhancement for personal use of a firearm (§ 12022.5). (Hajek, supra, 58 Cal.4th at p. 1198.) Regarding the firearm use enhancement, the legislative intent is to deter the use of firearms in the commission of felonies and " ' " 'uses' [must] be broadly construed." [Citation] "Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure." ' [Citations.]" (Hajek, supra, at p. 1198.) The firearm use enhancement " 'addresses the pervasive and inherent escalation of danger which arises from the defendant's act of deployment. By merely bringing a gun "into play," the defendant removes impediments to its actual discharge and thus enhances the danger of violent injury not only through an intentional act by the victim or a third party, but through an impulsive or inadvertent act by the defendant.' [Citation.]" (Hajek, supra, at p. 1198.)
3. Analysis
In this case, the testimony by the police sergeant at the preliminary examination reflected that, when defendant was partially through the dog door with his head and one arm in the garage, he was holding a knife and trying to unlock the door. When the neighbor came into the garage and approached defendant, defendant "suddenly dropped the knife inside the garage and pulled himself out and left." The evidence thus reflected that defendant dropped the knife and exited the premises upon being approached by the neighbor. The evidence at the preliminary examination did not establish that defendant intentionally displayed the knife in a menacing manner, struck someone with the knife, or otherwise acted to deploy the knife and bring it " ' "into play." ' " (Hajek, supra, 58 Cal.4th at p. 1198.) Because the evidence introduced at the preliminary examination was not sufficient to support a weapon use enhancement (§ 12022, subd. (b)(1)), the prosecution was barred from adding to the information a weapon use enhancement allegation that was not charged in the complaint. (Mendella, supra, 33 Cal.3d at p. 764.)
Defendant contends that there was no reasonable tactical justification for trial counsel's failure to object to the addition of the enhancement to the information, and that he was prejudiced by the enhancement because it increased his possible sentence by one year.
The Attorney General contends that trial counsel may have reasonably decided not to object, because the prosecution could have moved to dismiss the charges, refiled with the enhancement, and presented evidence on the issue at a new preliminary examination, thereby only giving defendant the benefit of a delay in the proceedings. Under these circumstances, the Attorney General further argues that defendant has not shown prejudice.
If a defendant cannot be prosecuted for or convicted of an offense or enhancement not shown by the evidence at the preliminary examination, trial counsel should ordinarily object or take some action to protect the defendant's rights. (People v. Burnett (1999) 71 Cal.App.4th 151, 181.) In People v. Robinson (2004) 122 Cal.App.4th 275 (Robinson), the appellate court determined that the defendant failed to show ineffective assistance of counsel where trial counsel did not object to the amended information. The facts in Robinson, however, are materially different than the instant case.
In Robinson, the defendant contended on appeal that he received ineffective assistance of counsel when his trial attorney failed to object to the prosecution's motion to amend the information to include a charge of petty theft with a prior theft-related offense pursuant to former section 666, without first proving the prior theft-related offense at the preliminary examination. (Robinson, supra, 122 Cal.App.4th at pp. 280- 281.) The appellate court rejected the contention. The court first determined that evidence showing the existence of prior convictions need not be adduced at the preliminary examination, and that section 666 need not be specifically pleaded in the information. (Robinson, supra, at pp. 281-282.) The court also determined that defendant was not denied due process because the complaint charged him with robbery, which "put him on notice that he could also be convicted of the necessarily lesser included offense of petty theft." (Id. at p. 282.) Further, the complaint listed several prior felony convictions for purposes of his ineligibility for probation and as a basis for a prior prison term allegation, including two prior felony theft convictions. (Ibid.) The amended information, in charging petty theft with a prior, alleged those same two prior felony theft convictions that were previously set forth in the complaint. (Ibid.) Lastly, the court determined that defense counsel may have had reasonable tactical grounds for not objecting where "the prosecution could simply have moved to dismiss the charges and refile with the new count," and "all defense counsel would have gained by objecting would have been delay." (Id. at p. 283.)
In this case, relying on Robinson, the Attorney General argues that if defendant's trial counsel objected to the information containing the weapon use enhancement, the prosecution could have dismissed the charges, refiled with the enhancement, and had the next-door neighbor testify about defendant's use of the knife by waiving it in a threatening manner. The Attorney General contends that "[u]like cases where the prosecution seeks to amend an information to conform to proof after the presentation of evidence at trial, refiling was particularly likely here, because the amendment was made soon after the preliminary hearing and the trial had not yet occurred. Starting again from the beginning would not have resulted in a duplication of effort that might have tempted the prosecutor to proceed without the enhancement."
We are not persuaded by the Attorney General's argument that the prosecutor would have dismissed the charges and filed a new complaint if defendant's trial counsel had promptly objected to the information alleging the weapon use enhancement. In Robinson, the original complaint reflected the prosecution's awareness of defendant's prior felony theft convictions, and thus it was reasonable for the appellate court to assume that the prosecution would have dismissed the charges and filed a new complaint if the defendant had objected to the information alleging petty theft with a prior theft-related conviction. However, in contrast, the record in this case does not reflect that the prosecution was aware of evidence of use at the time (1) the complaint was filed, (2) the preliminary examination was held, or (3) the information was filed that would have supported a weapon use enhancement. Sergeant Arreola testified at trial that when he first interviewed the neighbor right after the incident, the neighbor did not disclose that defendant had swung the knife at him, that defendant had yelled profanities, that defendant had said something about "killing," and that the neighbor had to kick the knife out of defendant's hand. The neighbor only reported that when defendant saw him in the garage, defendant "dropped" the knife and exited the dog door. Sergeant Arreola further indicated at trial that the district attorney's office requested that he conduct another interview of the neighbor. That second interview occurred on April 27, 2016, five months after the November 20, 2015 preliminary examination. It is not apparent from the record whether the prosecution or defendant's trial counsel became aware of potential trial testimony from the neighbor about weapon use based on this second interview of the neighbor, which was five months after the information had been filed. Under the circumstances, we will not speculate whether the prosecutor could have and would have dismissed the charges and filed a new complaint containing the weapon use enhancement had defendant's trial counsel promptly objected to the enhancement when the information was filed in November 2015.
In sum, no satisfactory explanation appears for trial counsel's failure to object to the inclusion of the weapon use enhancement in the information when the evidence adduced at the preliminary examination did not support the enhancement. Further, defendant has demonstrated prejudice, as the weapon use enhancement provides for an additional and consecutive term of one-year in prison. (§ 12022, subd. (b)(1).) Although defendant was placed on probation, the weapon use enhancement still has potential sentencing consequences. For example, if he violates probation and the court imposes a prison sentence, the sentence will be enhanced by one year. We therefore conclude that defendant has established ineffective assistance of counsel based on trial counsel's failure to object to the weapon use enhancement that was added to the information. We will order the weapon use enhancement stricken. (People v. Rogers (2016) 245 Cal.App.4th 1353, 1367, 1369.)
D. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct during rebuttal argument (1) by misstating the law regarding voluntary intoxication and by misstating the substance of his defense, and (2) by urging jurors to convict to protect community values rather than to convict based on the evidence. Defendant contends that the misconduct violated his federal right to due process, that his claim was preserved for appeal, and that his trial counsel rendered ineffective assistance to the extent the claim has been forfeited.
The Attorney General contends that no misconduct occurred, and that if misconduct did occur, it was harmless. The Attorney General concedes that defendant preserved the issue for appeal by objecting below.
1. Proceedings below
After the close of evidence, the trial court instructed the jury regarding the law, including regarding voluntary intoxication. The jury was instructed as follows: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant entered a building with the specific intent to commit theft, assault with a deadly weapon, or assault by means of force likely to produce great bodily injury, or acted with the specific intent to commit residential burglary. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink or other substance know[ing] that it can produce an intoxicating effect or willingly assuming the risk of that effect. [¶] In connection with the charge of residential burglary, the People have the burden of proving beyond a reasonable doubt that the defendant entered a building with the specific intent to commit theft, assault with a deadly weapon, or assault by means of force likely to produce great bodily injury. [¶] If the People have not met this burden, you must find the defendant not guilty of residential burglary. [¶] In connection with the charge of attempted residential burglary, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the specific intent to commit residential burglary. [¶] If the People have not met this burden, you must find the defendant not guilty of attempted residential burglary. [¶] You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to the allegation of personal use of a deadly weapon." (See CALCRIM No. 3426; § 29.4.)
In argument to the jury, the prosecutor discussed the evidence in the case and the offenses that defendant was charged with.
Defendant's trial counsel in argument to the jury referred to defendant as being drunk, "acting like an idiot," and being a "drunken idiot that night." Defendant's counsel argued that defendant did a lot of things that did not "make any sense" if he was trying to burglarize the residence, such as trying to get into his neighbor's house when he knew the neighbor had several dogs in the backyard and he knew the neighbor was home, and knocking on the front door after having unsuccessfully tried to enter through the dog door. Defendant's counsel told the jury that it could consider defendant's intoxication in determining what his intent was that night, and whether he had the intent to commit a felony inside the house. Counsel acknowledged that the evidence showed that defendant "made some bad choices and that he was drunk," but counsel argued that there was no evidence as to why defendant put his head through the dog door or why he banged on the front door. Counsel referred to the evidence showing defendant was intoxicated, including his slurred speech. Defendant's counsel told the jury it could consider evidence of defendant's voluntary intoxication with respect to his specific intent on the residential burglary and attempted residential burglary counts.
The prosecutor in rebuttal argument addressed the issue of intoxication, and defendant on appeal contends certain statements, which we italicize below, were misconduct by the prosecutor. The prosecutor in rebuttal argument stated: "So what the defense is asking you, . . . they're asking you to come in here and to say that it's okay to have a few drinks, jump your neighbor's fence, break into their house with a knife, wave it at them, yell 'fuck you' at them, and then, when the knife gets taken away, hop the fence, run back to the front door, and pound on that door with such violence and such anger and you don't stop until the police arrive. That's what the defense is asking you to do." The prosecutor argued that defendant's various acts that night, such as trying to get in through the dog door, reflected planning and sophistication. The prosecutor also argued that defendant said angry words and engaged in aggressive acts which showed what he was thinking that night.
Continuing with the issue of intoxication, the prosecutor stated: "So voluntary intoxication. What is that? It's a nifty way of saying, hey, Monterey County jury, you can get drunk, you can beat your wife, you can beat your husband." (Italics added.) Defendant's trial counsel objected at this point, and the trial court overruled the objection.
The prosecutor resumed his argument by stating: "What kind of world would we live in if you could just consume some alcohol before you intended to commit a crime? Shot the guy, but I had a couple of drinks. That's what they're asking you to do. [¶] That's not what involuntary intoxication says. It's not saying that it's an absolute defense. They're saying people who consume alcohol may have trouble forming some portions of intent. But then we look to their actions, can this person have intent? [¶] Did this person fall because they were drunk? Did the person fall into the doggie door because he was so drunk? No. He manipulated his body into that doggie door, he used his tools showing his planning, showing his sophistication. [¶] Drunk people form intent every[]day. Drunk people pay their tabs. Drunk people drive cars. Drunk people make all kinds of decisions. They're not always the best well-planned-out decisions, but drunk people intend to do things. [¶] And to suggest that a drunk person . . . can't intend to assault somebody with a deadly weapon is just absurd. Drunk people assault people with deadly weapons every[]day." (Italics added.) The prosecutor further argued that the Penal Code sets forth hundreds, if not thousands, of crimes and "not one of those crimes says but it's okay if you were drunk or but it's not a crime if you were drinking."
The prosecutor next stated: "[Y]ou might not know this movie. I haven't seen it, but I've seen the trailer for it and it reminded me of this case. It's called The Purge. That's where it was legal for a day or 12 hours for citizens to go commit crimes. It's an absurd thought. It's a fiction movie. It had all right ratings. [¶] But that's essentially what the defense is asking you to do here. No crime because he had a couple of drinks. This is not The Purge. This is a civilized society. What would this society be if we allowed people to drink and commit crimes?" (Italics added.) The prosecutor thereafter argued that the evidence established defendant's specific intent, including that he intended to assault someone with a deadly weapon when he went through the dog door late at night with a knife. The prosecutor contrasted specific intent with motive, which the prosecution was not required to prove.
2. Applicable law
Section 29.4 provides that "[n]o act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition." (Id., subd. (a).) "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent." (§ 29, subd. (a).) A defendant lacks the requisite specific intent if the evidence shows that the defendant's "intoxication affected his [or her] ability to 'actually form[] a required specific intent.' " (People v. Myles (2012) 53 Cal.4th 1181, 1217 (Myles) [quoting former § 22, subd. (b), now § 29.4, subd. (b)]; see People v. Williams (1997) 16 Cal.4th 635, 677-678 (Williams).)
"Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, 'it is improper for the prosecutor to misstate the law.' " (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).) It is also improper for the prosecutor to appeal to the jury's passion or prejudice. A prosecutor may not " 'make arguments to the jury that give it the impression that "emotion may reign over reason," and . . . present "irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response." [Citation.]' [Citations.]" (People v. Linton (2013) 56 Cal.4th 1146, 1210.)
When a claim of prosecutorial misconduct is based on "the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citations.]" (Centeno, supra, 60 Cal.4th at p. 667.)
" ' "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' [Citations.]" ' [Citation.]" (People v. Tully (2012) 54 Cal.4th 952, 1009-1010 (Tully).) Such conduct will be found prejudicial if there is a "reasonable probability that the jury would have reached a more favorable result absent the objectionable comments. [Citation.]" (People v. Sandoval (1992) 4 Cal.4th 155, 184; see People v. Watson (1956) 46 Cal.2d 818, 836.)
" '[A] claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury. [Citation.]' [Citation.]" (Tully, supra, 54 Cal.4th at p. 1010, fn. omitted.)
3. Analysis
First, assuming defendant preserved his claim for appeal, we determine that the prosecutor did not misstate the law regarding voluntary intoxication during rebuttal argument, and that the prosecutor's characterization of defendant's intoxication defense was not improper. Defendant acknowledges that the "prosecutor . . . correctly advised the jury that voluntary intoxication" is relevant only "to the extent it establishes the defendant did not form the requisite intent," that the prosecutor correctly told the jury to look at defendant's actions to resolve this question, and that the prosecutor properly "argued that drunk people can and do form intent." Considering the entirety of the prosecutor's rebuttal argument, we believe it was unlikely the jury construed the other portions of the prosecutor's remarks at issue, which we italicized above, in an objectionable fashion. (Centeno, supra, 60 Cal.4th at p. 667.) The prosecutor's rebuttal argument as a whole, including the italicized portions, correctly conveyed the notion that voluntary intoxication is not "an absolute defense," and that consuming alcohol before committing a crime does not preclude the person from being convicted of the crime. The prosecutor also properly told the jury to consider defendant's conduct that night, including "manipulat[ing] his body into" the dog door, which demonstrated his planning and sophistication. The prosecutor's argument was that, despite defendant's intoxication, he could have, and the evidence reflected that he did have, the requisite specific intent, including the intent to assault someone with a deadly weapon, when he entered or attempted to enter the residence. Consequently, the prosecutor argued that defendant's reliance on voluntary intoxication was him "essentially . . . asking" the jury to determine that there was "[n]o crime because he had a couple of drinks." The prosecutor's description of defendant's intoxication defense was based on a fair characterization of the evidence, the applicable law concerning voluntary intoxication, and the limited role intoxication plays for a defendant charged with a crime.
Second, we do not believe there is a reasonable likelihood the jurors understood the prosecutor to argue that they should convict to protect community values rather than based on the evidence. (Centeno, supra, 60 Cal.4th at p. 667.)
In support of a contrary argument, defendant cites United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142 (Weatherspoon). In Weatherspoon, the defendant was convicted of being a felon in possession of a firearm. (Id. at p. 1144.) The prosecutor's argument to the jury included statements such as " '[c]onvicting [the defendant] is gonna make you comfortable knowing there's not convicted felons on the street with loaded handguns,' " and " 'finding this man guilty is gonna protect other individuals in this community.' " (Id. at p. 1149.) Quoting other federal opinions, the Ninth Circuit Court of Appeals stated: "A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society's woes is far too heavy a burden for the individual criminal defendant to bear." (Id. at p. 1149.) The Ninth Circuit determined that the prosecutor's arguments in the case before it were improper because the arguments addressed "the potential social ramifications of the jury's reaching a guilty verdict" rather than factual issue of whether the defendant was in possession of a gun, and "[t]hey were clearly designed to encourage the jury to enter a verdict on the basis of emotion rather than fact." (Id. at pp. 1149, 1150.)
In this case, the prosecutor's arguments that intoxication was not a defense to committing any crime, and that a "civilized society" would not allow such a defense, were not likely to be understood by the jurors as the prosecutor urging them to convict based on the social ramifications of the verdict rather than based on the evidence that had been presented. In the context of the prosecutor's rebuttal argument as a whole, the prosecutor's statements conveyed the legal parameters of voluntary intoxication (intoxication alone is not a defense to any crime), the reason for those limits (otherwise a person could drink and then be legally excused from any crime committed thereafter), and the facts relevant to determining whether defendant formed the required specific intent despite his intoxication (including the facts showing planning and sophistication in committing the crimes). We conclude that the prosecutor's rebuttal argument was not an improper appeal to the jury's passion or prejudice, but rather could only be reasonably understood as (1) demonstrating that defendant's intoxication was not a complete defense to his crimes and (2) identifying the evidence pertinent to the jury's determination of whether his intoxication affected his ability to form the required specific intent.
Third, even assuming the challenged statements constitute misconduct, we determine that defendant was not prejudiced by the statements under any standard of review. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Defendant contends that the prosecutor's statements in rebuttal argument were prejudicial because of the jury's " 'special regard' " for the prosecutor, the statements went to the " 'heart' " of the defense regarding intoxication, and the timing of the remarks in rebuttal left defense counsel with no opportunity to respond.
We are not persuaded by defendant's arguments. The trial court properly instructed the jury regarding voluntary intoxication pursuant to CALCRIM No. 3426. The court also instructed the jury that it should decide the case based only on the evidence presented at trial and the law provided by the court, and that it should not let sympathy, prejudice, or public opinion influence its decision. Defendant acknowledges that his trial counsel in argument to the jury, and the prosecutor in rebuttal argument, correctly told the jury that defendant's intoxication could be considered in determining whether he formed the requisite intent.
Before evidence was presented at trial, the jury was instructed, "Your verdict must be based only on the evidence presented during trial in this court and the law as I provide it to you," and "Do not let bias, sympathy, prejudice, or public opinion influence your decision." (See CALCRIM No. 101.)
After the close of evidence, the jury was similarly instructed, "You must decide what the facts are. It is up to all of you and you alone to decide what happened, based only on the evidence that has been presented to you in this trial. [¶] Do not let bias, sympathy, prejudice or public opinion influence your decision. . . . You must follow the law as I explain it to you even if you disagree with it. If you believe the attorneys' comments on the law conflict with my instructions, you must follow my instructions." (See CALCRIM No. 200.)
Further, the prosecution's case was very strong. Defendant acknowledges that the "substance of [his] actions on the night in question was largely undisputed. Thus, his only defense to the underlying charges was that he lacked the necessary intent for either charge, and voluntary intoxication went precisely to that issue."
Regarding defendant's specific intent, the undisputed evidence reflected that he tried to sneak into the neighbor's residence through a dog door in the middle of the night with a knife. When confronted by the neighbor, defendant was mad, yelling profanities, and making references to killing. Defendant returned to the residence only a few minutes later, with the same angry demeanor and profanity-laced yelling, and banged on the door for an extended period of minutes. Although he initially cooperated with the police upon their arrival, he eventually resumed the verbally and physically aggressive and threatening behavior he had displayed at the neighbor's residence. The evidence was compelling that defendant's intent when he entered the dog door with a knife was either to commit theft, assault with a deadly weapon, or assault by means of force likely to produce great bodily injury. The evidence was equally compelling that when he reappeared only a few minutes later at the neighbor's front door, displaying the same aggressive and threatening behavior, he had the same intent to enter the residence and commit theft or felony assault.
Although there was evidence that defendant was intoxicated, there was compelling evidence that his intoxication did not affect his ability to form the required specific intents for burglary or attempted burglary. (See Myles, supra, 53 Cal.4th at p. 1217; Williams, supra, 16 Cal.4th at pp. 677-678.) The evidence reflected that defendant engaged in planned and purposeful acts at the outset in trying to enter the neighbor's residence with a knife through an unsecured dog door in the middle of the night—a time when the residents were likely to be sleeping and most vulnerable. Moreover, at the end of the incident, the police had no difficulty communicating with defendant. Defendant was able to follow police commands, including walking with his hands in the air and then positioning himself to lie down on the ground. He was also responsive to police questions, including providing his name and stating why he was at the neighbor's house.
Based on this record, we determine that any error in the trial court's failure to sustain the objection to the prosecutor's rebuttal argument was harmless under any standard of review. (See Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836.)
E. Violent Felony Allegation
The information alleged that the first degree burglary (count 1) and the attempted first degree burglary (count 2) were violent felonies within the meaning of section 667.5, subdivision (c) because a person, other than an accomplice, was present in the residence during the commission of the offenses. (§ 667.5, subd. (c)(21).) The jury found the allegations true as to both counts. Defendant contends that this allegation must be stricken as to the attempted first degree burglary (count 2) because section 667.5, subdivision (c)(21) does not apply to that offense.
The Attorney General concedes that section 667.5, subdivision (c)(21) does not apply to attempted first degree burglary. The Attorney General contends, however, that there is no need to strike the jury's factual finding in this regard. The Attorney General argues that the jury's finding "accurately describes what happened" factually in the case, that defendant's sentence was not enhanced because of the allegation, and that defendant has not identified any prejudice resulting from the jury's finding.
In reply, defendant observes that a violent felony conviction affects the calculation of custody credit. (See § 2933.1, subds. (a) & (c).) He acknowledges, however, that he is already subject to the limitations on custody credit for a violent felony conviction, based on his conviction on count 1 for first degree burglary while a person was present in the residence at the time of the commission of the offense (see §§ 459, 667.5, subd. (c)(21)).
Section 667.5, subdivision (c) lists offenses that are " 'violent felon[ies].' " Subdivision (c)(21) provides that one such violent felony is "[a]ny burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." Section 667.5, subdivision (c) does not specify that attempts to commit the enumerated crimes are also violent felonies. (Compare § 1192.7, subd. (c)(39) [" 'serious felony' " includes "any attempt to commit a crime listed in this subdivision other than an assault"]; see People v. Ibarra (1982) 134 Cal.App.3d 413, 425 ["Section 667.5, subdivision (a), does not apply to attempts to commit the crimes referred to as violent felonies."].) Because the section 667.5, subdivision (c) allegation does not apply to attempted first degree burglary, and because a true finding on the allegation may still have sentencing consequences for defendant, who was placed on probation, we will order the true finding vacated with respect to defendant's attempted burglary conviction (count 2).
IV. DISPOSITION
The judgment is modified by:
(1) striking the Penal Code section 12022, subdivision (b)(1) weapon use enhancement on count 1 (first degree burglary); and
(2) striking the true finding on the Penal Code section 667.5, subdivision (c)(21) allegation that a person was present in the residence at the time of the commission of the attempted first degree burglary (count 2).
The minutes of the October 21, 2016 sentencing hearing are ordered corrected to state that defendant shall: "Have no direct or indirect contact with the victims, meaning anyone who resides in the house where the offenses were committed, including contact by telephone, writing, or computer, or through another person."
As so modified, the judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.