Opinion
A145796
05-01-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY JONES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-150248-3)
Mark Anthony Jones was convicted of first degree residential burglary. He argues the trial court erred in denying his Marsden motions for substitution of counsel, his Faretta motion to represent himself at the sentencing hearing, and his request for a pinpoint jury instruction on the definition of first degree burglary. Jones does not show that he had a conflict with counsel that prevented effective representation, that he could represent himself at the sentencing hearing without disrupting the proceedings, or that his proposed instruction gave a fair overview of the relevant law. We affirm his conviction.
People v. Marsden (1970) 2 Cal.3d 118.
Faretta v. California (1975) 422 U.S. 806.
I. BACKGROUND
The Oakwood Village apartment complex consists of hundreds of apartment units in more than 30 buildings surrounded by a perimeter wall. Four or five laundry rooms are in the complex. The laundry room relevant here is attached to one of the apartment buildings and shares a common wall with an apartment unit. It is otherwise a separate structure with its own roof and a single exterior door opening to an outdoor pathway that extends throughout the apartment complex. The laundry room is accessible by key to residents between 9:00 a.m. and 10:00 p.m. The door is supposed to remain locked during those hours, but is often propped open. At 10:00 p.m., security guards lock a deadbolt on the laundry room door and reopen it at 9:00 the following morning. At the time of Jones's arrest, the laundry room's windows did not lock and could be opened from the inside or outside. Jennarae Hill's apartment was located on the other side of the laundry room's shared wall, and she was home at the time of the events that led to this criminal proceeding.
In the evening and early morning hours of November 5 to 6, 2014, Anthony Paulk and Steve Destefans were on duty as security guards at the apartment complex. At about 10:00 p.m., Paulk saw nothing unusual in the laundry room before locking the deadbolt. At about 1:30 a.m., the guards went to the vicinity of the laundry room to investigate three adults Destefans observed in the area, who were not located. The guards heard loud popping noises coming from the laundry room, which was dark inside. They shined their flashlights into the room and saw tools on some of the machines and a man moving around. They repeatedly shouted for the man to show his hands and exit the room, but he did not comply. The man said he had a gun and would shoot them. He cracked the door open and stuck out a dull-looking object, then flung the door open and fled down the pathway. The guards pursued and apprehended Jones. Jones was unarmed and had no money on him. When the guards returned to the laundry room, they discovered a pry bar stuck into the back of a washer (near the coin mechanism) that had been pulled away from the wall, a blowtorch on the floor beneath the pry bar, as well as a toolbox, ratchet set, and drill.
Jones was charged with first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)) committed while Hill, a nonaccomplice, was present (§ 667.5, subd. (c)(21)). It was alleged that Jones had several prior convictions within the meanings of sections 667, subdivisions (b) through (i), 1170.12, 1203, subdivision (e)(4), and 1170, subdivisions (f) and (h)(3)(A), and that he served a number of prior prison terms within the meaning of section 667.5, subdivision (b).
Undesignated statutory references are to the Penal Code.
The case was tried to a jury. On burglary, the court instructed the jury: "[T]he People must prove that: One, [Jones] entered an attached laundry room; and two, when he entered the attached laundry room, he intended to commit theft. [¶] . . . [¶] . . . First degree burglary is the burglary of an inhabited part of a building. A house includes any structure that is attached to the house or apartment and functionally connected with it." The jury found Jones guilty of first degree residential burglary while a nonaccomplice was present. In a bifurcated phase of the trial, the jury found all of the prior conviction and prior prison term allegations true.
II. DISCUSSION
A. Marsden Motions
Jones argues the court erred in denying three Marsden motions he made during the trial court proceedings. Jones argues the court failed to recognize he had an irreconcilable conflict with his attorney that was likely to result in ineffective assistance of counsel. We disagree and affirm.
"When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion [citation]—the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court's discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel." (People v. Smith (2003) 30 Cal.4th 581, 604.)
On April 13, 2015, before trial, defense counsel declared a doubt about Jones's competence. (See § 1368.) "[W]e had a meeting of several hours on Friday night. And at this point, our communications have broken down, and I think that these issues are related to mental health." The court suggested holding a Marsden hearing, and Jones agreed. Jones explained he wanted to file a writ petition to challenge the denial of a motion to dismiss but counsel disagreed. Jones also wanted to go to trial but defense counsel wanted him to accept a plea offer. Jones said he was innocent of the charges because he had simply fallen asleep in the laundry room, but counsel kept harping on his prior criminal history. He said counsel's lack of confidence regarding the trial was "spook[ing]" him. "I don't want to be scared from exercising my rights." Counsel responded that Jones wanted to take incompatible actions—filing a writ petition and proceeding immediately to trial—and seemed paranoid, suspecting counsel had a conflict of financial interests in the outcome of Jones's case. The court denied the Marsden motion and added it was "not accepting the doubt [as to Jones's competence] at this point. . . . [¶] . . . Jones has spent the vast majority of his life in one penal institution or another, starting when he was a young juvenile . . . . That amount of time . . . has profound and permanent effects on people. [¶] . . . [However,] [i]n all the cases that [Jones] has ever had, no one has ever raised the issue of his competence. And I find it very troubling that it's only now when the case is on the trial calendar that this is an issue when [counsel has] been representing [Jones] for quite some time now."
On May 4, 2015, while the jury was deliberating, Jones made a second Marsden motion. He argued defense counsel failed to sufficiently object to several trial court errors: inaccurate jury instructions; the prosecutor's failure to produce the alleged burglary tools in the courtroom; the prosecutor's disclosure of new photographs on the first day of trial; the prosecutor's joint interview of the security guards, which allowed them to coordinate their stories; inconsistencies in the security guards' statements; an officer at the arrest scene also serving as bailiff during Jones's trial; and the court's suppression of Jones's attempts to consult with counsel during trial. Jones suggested counsel could not do his job because his children were being held hostage or because of some similar type of coercion. Counsel responded that he repeatedly challenged the jury instructions; repeatedly explained to Jones that many of his points went to the weight rather than the admissibility of the evidence; and thoroughly impeached the security guards' testimony on cross-examination, through defense witnesses (police officers who testified the guards did not mention many details from their testimony in their initial statements on the night of the incident) and in closing argument. With regard to the prosecution's late production of photographs, defense counsel explained he had complained to the prosecutor about the delay, but he did not believe it was prejudicial because they were simply pictures of the general crime scene. Counsel said the bailiff issue was a "weird coincidence" but concluded it did not prejudice Jones, as the officer had not played a significant role in the police investigation. Finally, counsel again raised the possibility Jones was suffering from a mental health problem.
The trial court observed it had admonished Jones more than once during trial for disrupting the proceedings when he consulted with counsel at length in a loud voice. Following this comment, Jones talked over and interrupted the court, and was ordered temporarily removed from the courtroom. When the hearing resumed, the court found Jones was receiving "superb representation" by defense counsel, and Jones was "an imperious and noncompliant individual who wants to challenge authority" and "has a distorted viewpoint," but showed no indications of mental illness. The court expressly found no irreconcilable conflict between Jones and his counsel. After the hearing, defense counsel formally objected to the late disclosure of the crime scene photographs. The court found no prejudice had resulted and thus declined to provide a late discovery jury instruction.
On July 10, 2015, the date set for sentencing, Jones made another Marsden motion. He argued he had unspecified new evidence that his counsel failed to discover before trial; counsel failed to interview a resident who gave the security guards a key to open the laundry room after Jones was apprehended; counsel failed to file a motion to dismiss based on late disclosure of the crime scene photographs; counsel did not help him prepare such a motion to dismiss or a separate motion to reverse the verdict; and counsel had told him he was eligible for probation but then could not be reached by phone so Jones could pursue that possibility. Counsel responded that he was unaware of any new evidence; the defense investigator searched for but did not locate the resident who provided the key; late discovery of the photographs was an insufficient ground to obtain dismissal; he had spoken to Jones about a probation department interview, not eligibility for probation; and delays in communication were due to counsel's surgery following trial. The court found defense counsel was "an excellent attorney [who] represented [Jones] quite ably," and there was no irreconcilable conflict.
The trial court did not abuse its discretion in denying the Marsden motions. Jones described disagreements he had with defense counsel about legal strategy in the case and frustrations about interruptions in their communication, but Jones did not demonstrate that irreconcilable conflict prevented counsel from zealously representing him or from taking direction from him when appropriate. The court twice observed that counsel had provided "superb representation," an assessment supported by the appellate record. Although counsel urged Jones to accept a plea offer, he respected Jones's choice to go to trial. Counsel pursued many of the leads Jones provided. Counsel spent many hours meeting with Jones about the case despite their disagreements and despite Jones's expressed paranoid suspicions. The record does not demonstrate the attorney-client relationship had completely broken down, nor does it establish Jones's right to assistance of counsel at, before, or after trial, was impaired by the court's refusal to replace counsel. The record amply supports the court's ruling. B. Faretta Motion
Jones argues the court erred in denying his Faretta motion made on the day of sentencing. The court found Jones was incompetent to represent himself, but Jones cites evidence that he actively consulted with his attorney during trial and communicated effectively at the Marsden and Faretta hearings, making specific, concrete criticisms of the conduct of the trial. We affirm not on the ground of incompetence, but because the motion was untimely and equivocal and there was sufficient evidence that Jones was likely to disrupt the sentencing hearing if allowed to represent himself. (See People v. Dent (2003) 30 Cal.4th 213, 218 [denial of Faretta motion may be affirmed on grounds different from those relied on by the trial court]; People v. Halvorsen (2007) 42 Cal.4th 379, 433, fn. 15 [same].)
As soon as the court denied his last Marsden motion, Jones made a Faretta motion. After a brief recess, the court found Jones was not competent to represent himself under the standards of Indiana v. Edwards (2008) 554 U.S. 164. In support of its decision, the court noted Jones had a high school equivalency diploma; he had been housed at Atascadero State Hospital while incarcerated; he had been diagnosed with schizophrenia; the probation department opined that Jones's conduct on probation suggested mental illness; and Jones's conduct in court during the instant and prior cases "demonstrated disruptiveness, hostility, as well as an indication that [he was] suffering from mental illness." The court also noted "the disorganized thinking, there appear to be some deficits with sustaining attention and concentration, impaired expressive abilities, as well as perceptions that don't match all of reality would interfere with [Jones's] ability to represent [him]self." After the ruling, Jones disrupted the proceedings, interrupting and talking over the court for more than two pages of a reporter's transcript. The court provided security to defense counsel so he could try to persuade Jones to control his behavior and remain present for sentencing. Counsel then represented Jones at the sentencing hearing with Jones present.
A criminal defendant has a right to represent himself under the Sixth Amendment to the United States Constitution. (Faretta, supra, 422 U.S. at p. 807.) "A trial court must grant a defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial." (People v. Welch (1999) 20 Cal.4th 701, 729, italics added.) A defendant who has been found competent to stand trial may nevertheless be found incompetent to waive counsel if "the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel." (People v. Johnson (2012) 53 Cal.4th 519, 530; see Indiana v. Edwards, supra, 554 U.S. 164.) If a Faretta motion is untimely, self-representation is no longer a matter of constitutional entitlement, but a matter committed to the trial court's discretion. (People v. Windham (1977) 19 Cal.3d 121, 128-129.)
A Faretta motion made after a guilty verdict and before sentencing is timely only if made "a reasonable time prior to the commencement of the sentencing hearing." (People v. Miller (2007) 153 Cal.App.4th 1015, 1024.) A court must consider the totality of the circumstances in determining timeliness, such as the amount of time between the Faretta motion and scheduled sentencing date, readiness of trial counsel to proceed, and whether the defendant could have earlier asserted his right of self-representation. (See People v. Lynch (2010) 50 Cal.4th 693, 726 [discussing pretrial Faretta motions], abrogated on other grounds by People v. McKinnon 52 Cal.4th 610, 636-643.)
Here, the jury returned its verdict on the prior conviction allegations on May 4, 2015. That same day, the court scheduled the sentencing hearing for July 10. Jones did not request self-representation in the two months leading up to the sentencing hearing or even at the beginning of the July 10 hearing itself. He requested self-representation only after the court denied his Marsden motion. At the same time, he insisted that sentencing proceed without delay: indeed, it was that insistence which precipitated Jones's Marsden motion when defense counsel requested a continuance. Before the court ruled on the Faretta motion, defense counsel said he was willing to proceed with sentencing that same day in accord with Jones's wishes. Although Jones claimed he also could proceed immediately with the hearing, the court could reasonably have been skeptical given that Jones apparently had not anticipated representing himself at sentencing. In short, the court was presented with a last-minute Faretta motion with no special circumstances justifying the late request. Thus, Jones's motion was untimely. (People v. Doolin (2009) 45 Cal.4th 390, 454-455 [Faretta motion made on the day of the sentencing hearing was untimely].) Accordingly, whether to grant Jones's Faretta motion was not a matter of constitutional entitlement, but a matter committed to the trial court's discretion. (People v. Windham, supra, 19 Cal.3d at pp. 128-129.)
In the July 10, 2015 Marsden hearing, Jones also complained about a lack of information or opportunity to consult with counsel about sentencing and mentioned two motions he wanted to file that were still incomplete.
Jones's Faretta motion was also equivocal. "Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied." (People v. Marshall (1997) 15 Cal.4th 1, 23.) Even if the trial court does not expressly find a Faretta motion equivocal, a reviewing court may conclude the motion was equivocal in all the circumstances. (Id. at p. 25; see id. at pp. 21-22 [citing with approval two out-of-state cases finding Faretta motions were equivocal where they were made as emotional responses to denials of motions to substitute counsel].) Here, Jones made his Faretta motion immediately after the court denied his Marsden motion; he did not explain why he wanted to represent himself at sentencing after having accepted legal representation at trial; and he had an emotional outburst immediately after the Faretta motion was denied. These circumstances suggest the motion arose from frustration rather than a sincere request for self-representation.
Finally, there was ample evidence to believe Jones would disrupt the sentencing hearing if allowed to represent himself. A trial court may deny a Faretta motion "when a defendant's conduct . . . gives the trial court a reasonable basis for believing that his self-representation will create disruption. 'The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.' ([Faretta, supra, 422 U.S. at p. 835, fn. 46.]) . . . [¶] . . . The trial court possesses much discretion" in making this determination. (People v. Welch, supra, 20 Cal.4th at pp. 734-735.) Here, the trial court expressly found Jones had been disruptive and hostile in court—facts cited in support of its finding that Jones was not competent to represent himself at sentencing. The finding of disruptiveness alone was sufficient to support the court's ruling, as Jones had been admonished more than once during trial for disruptions even when he had counsel, he had disrupted a prior Marsden motion, and he disrupted the Faretta hearing to the point that the court provided security for defense counsel while he met with Jones in an effort to persuade him to calm down.
We affirm the trial court's denial of the Faretta motion. C. Proposed Jury Instruction
Jones argues the trial court erred in rejecting his proposed pinpoint instruction on whether the laundry room was part of a dwelling for purposes of a first degree burglary charge. We affirm.
1. "Inhabited Dwelling House" Element of First Degree Burglary
By statute, "[e]very burglary of an inhabited dwelling house, . . . or the inhabited portion of any other building, is burglary of the first degree." (§ 460, subd. (a).) " '[I]nhabited' means currently being used for dwelling purposes, whether occupied or not." (§ 459.) Several courts have adopted the rule: "In determining whether a structure is part of an inhabited dwelling, the essential inquiry is whether the structure is 'functionally interconnected with and immediately contiguous to other portions of the house.' [Citation.] 'Functionally interconnected' means used in related or complementary ways. 'Contiguous' means adjacent, adjoining, nearby or close." (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1107, citing People v. Ingram (1995) 40 Cal.App.4th 1397, 1404, disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8; see People v. Coutu (1985) 171 Cal.App.3d 192, 193 [citing cases].)
Many cases have held that entries into home garages (including garages where laundry machines are located) were entries of dwellings for purposes of a first degree burglary charge (People v. Cook (1982) 135 Cal.App.3d 785, 795-796; People v. Fox (1997) 58 Cal.App.4th 1041, 1044, 1047), even where the garage had only an exterior entrance (People v. Moreno (1984) 158 Cal.App.3d 109, 112 [garage used for laundry and storage]; see People v. Rodriguez, supra, 77 Cal.App.4th 1101 at pp. 1105, 1108-1110 [attached home office with only exterior entrance was part of dwelling]), was separated from the house by a covered carport (People v. Ingram, supra, 40 Cal.App.4th at pp. 1402, 1404; see People v. Coutu, supra, 171 Cal.App.3d at pp. 193-194 [storeroom connected to house by "breezeway," presumably a roofed open passage, is part of the dwelling]), or was nothing more than a carport with two open sides (In re Christopher J. (1980) 102 Cal.App.3d 76, 77-79; but see id. at pp. 80-81 (dis. opn. of Gardner, P.J.)).
Courts have taken a similar approach when a defendant entered part of an apartment complex (or multi-unit building) other than a living space. Several courts have held that entry into the garage or carport of an apartment complex was entry into a dwelling. (See In re Edwardo V. (1999) 70 Cal.App.4th 591, 592-595 [garage attached to duplex with only exterior entrance]; People v. Zelaya (1987) 194 Cal.App.3d 73, 74-76 [basement-level garage and storage rooms]; People v. Thorn (2009) 176 Cal.App.4th 255, 260-263 [carport on ground floor of apartment building that was open to a paved courtyard]; see People v. Debouver (2016) 1 Cal.App.5th 972, 981-982 [secured underground garage in building is part of "residence" for purposes of § 667.5, subd. (c)(21)]). In the case most analogous to this one, the reviewing court upheld a first degree burglary conviction where the defendant burglarized a laundry room in an apartment complex: "The complex is a two-story, U-shaped building with an open-air courtyard in the middle. Entry into all the individual apartments is via the courtyard. Unlocked, wrought iron gate entrances stand on three sides of the complex. The laundry room is on the ground floor in a corner of the complex. Occupied apartments are immediately above and adjacent to the laundry room, which is also entered from the courtyard. The entire building, including the laundry room, is covered by a single roof." (People v. Woods (1998) 65 Cal.App.4th 345, 347 (Woods).) The court held: "Based on the evidence of the physical placement of the laundry room within the complex and the fact it was used by tenants to do their laundry, a household chore, we find no error in the court's implied finding this room was an integral part of the complex, and thus an inhabited dwelling." (Id. at p. 349.)
The court also held that the laundry room satisfied an "alternative 'reasonable expectation test' for an inhabited dwelling." (Woods, supra, 65 Cal.App.4th at pp. 349-350; see People v. Thorn, supra, 176 Cal.App.4th at pp. 263-266.) --------
With these principles in mind, we consider Jones's proposed instruction.
2. Procedural Background
Jones asked the court to provide the following pinpoint instruction: "In determining whether a structure is part of an inhabited dwelling, the essential inquiry is whether the structure is 'functionally interconnected with and immediately contiguous to other portions of the house.' (People v. Ingram[, supra,] 40 Cal.App.4th [at p.] 1404.)' The following structure has been held to be a dwelling house or part of a dwelling house for purposes of first degree burglary: 'A common-area laundry room located under the same roof as and contiguous to occupied apartments.' [Woods, supra,] 65 Cal.App.4th [at pp.] 348-350." Jones argued the proposed instruction would be helpful to the jury because "people [don't] think of a . . . laundry area [a]s necessarily being an inhabited dwelling. . . . [T]hey need a little bit of guidance in terms of what are the factors that courts have looked at."
The prosecution argued the second sentence of the proposed instruction (following the citation to People v. Ingram) was inappropriate. Jones explained that he adapted the language from notes to CALCRIM No. 1701, the burglary instruction. (1 Judicial Council of Cal., Crim. Jury Instns. (2016) Related Issues to CALCRIM No. 1701, Dwelling Houses for Purposes of First Degree Burglary, pp. 1112-1113 [providing quoted summary of Woods but also including summaries of several relevant cases].) The court questioned the propriety of the instruction, suggesting it improperly implied that all of the characteristics of the Woods laundry room (including "the same roof") were required before a laundry room could be deemed part of a dwelling. The prosecutor made similar arguments. Jones responded that Woods, In re Edwardo V., supra, 70 Cal.App.4th 591 and People v. Rodriguez, supra, 77 Cal.App.4th 1101 were "ample authority that the same roof is a factor that is often considered." However, he did not suggest a rewording of the proposed instruction except to provide the jury with all of the CALCRIM No. 1701 notes regarding "dwelling houses." The court agreed to instruct the jury that "[a] house includes any structure that is attached to the house or apartment and functionally connected with it," consistent with a parenthetical to the standard jury instruction (CALCRIM No. 1701), but otherwise rejected the proposed instruction.
During closing arguments, the prosecutor argued the laundry room was attached to a dwelling because it shared a common wall with an apartment in the adjacent building, and it was functionally connected to that apartment because the resident performed household chores there, access to the laundry was part of her rental package, the room was usually locked, and she went to the room in sweatpants as if she were still in her own residence. Jones argued the laundry room was not part of a dwelling because it had a separate roof and an exterior entrance, residents could access the room only during limited hours, and it was often left unsecured during the day, which demonstrated the residents did not treat it as part of their dwelling space.
During deliberations, the jury asked for a definition of "functionally connected" and " 'non-functional' dwelling." Jones renewed his request for the proposed pinpoint instruction. Drawing from language in Rodriguez, supra, 77 Cal.App.4th at pp. 1107-1108, the court instructed the jury: "As used in Instruction 1701, the term 'functionally connected' to a residence means 'used in a related or complementary way.' Entry into such a structure may qualify as a first degree burglary even if there is no connecting door to the residence and the structure serves as a storehouse, workshop, or office, or serves some other need of the residence." The jury later asked: "Is the building considered 'functional' if hours of operation are posted and it is after hours? Is it 'non-functional' if it is after the posted hours?" After consulting with counsel, the court responded: "This is an issue of fact for the jury to decide." Less than an hour later, the jury returned its guilt-phase verdict.
3. Analysis
A defendant is entitled to an instruction that pinpoints the defense theory of the case. (People v. Wright (1988) 45 Cal.3d 1126, 1137.) A defendant is not entitled to an argumentative instruction that " 'select[s] certain material facts, or those which are deemed to be material, and endeavor[s] to force the court to indicate an opinion favorable to the defendant as to the effect of such facts, by incorporating them into instructions containing a correct principle of law.' . . . 'An instruction should contain a principle of law applicable to the case, expressed in plain language, indicating no opinion of the court as to any fact in issue.' " (Id. at p. 1135.)
Jones argues the court erred in rejecting his proposed instruction, both as a predeliberation instruction and as a response to the jury's questions during deliberations, because the instruction "would have defined some of the factors the jury needed to evaluate in order for it to find [he] committed a first degree residential burglary." Jones correctly notes several relevant cases cite a shared roof as one factor showing an attached structure is part of a dwelling. (See People v. Moreno, supra, 158 Cal.App.4th at p. 112; People v. Coutu, supra, 171 Cal.App.3d at p. 193; People v. Zelaya, supra, 194 Cal.App.3d at p. 75; People v. Ingram, supra, 40 Cal.App.4th at pp. 1402-1403; Woods, supra, 65 Cal.App.4th at pp. 347-349; In re Edwardo V., supra, 70 Cal.App.4th at pp. 592, 594-595; People v. Rodriguez, supra, 77 Cal.App.4th at pp. 1105, 1107, 1110-1111; People v. Debouver, supra, 1 Cal.App.5th at pp. 981-982.) However, he cites no authority that the presence of a shared roof is necessary to the determination. If an appurtenant structure need not have four walls (see In re Christopher J., supra, 102 Cal.App.3d at pp. 77-78), we see no reason why it must have a roof at all, much less a roof shared with the larger dwelling. In People v. Yarbrough, the Supreme Court held that a private apartment balcony above the ground floor of an apartment building is always part of the apartment dwelling (for purposes of determining whether entry into the balcony constitutes entry into the dwelling) even though nothing in that opinion indicated the balcony was covered. (People v. Yarbrough (2012) 54 Cal.4th 889, 891, 894.) Indeed, it is hard to imagine how a private balcony on the second floor of an apartment building with three or more floors could share the same roof as the apartment building. The trial court did not err in refusing an instruction that implied a shared roof was a prerequisite to finding the laundry room a part of a dwelling.
Jones argues "[f]ailure to instruct on proper factors the jury may consider when assigning the degree of a crime lightened the prosecutor's burden [of proof]." The cases he cites in support of this statement, however, do not support it. Patterson v. New York (1977) 432 U.S. 197, 211, footnote 12, simply reiterates that the prosecution must prove beyond a reasonable doubt all elements of the crime as defined by statute, and McMillan v. Pennsylvania (1986) 477 U.S. 79, 85-86, holds that sentencing factors need not be proved by the prosecution beyond a reasonable doubt. In any event, Jones's proposed instruction did not list all of the relevant "proper factors" the jury could consider in determining whether the laundry room was part of a dwelling, but only some of them—focusing on what he believed to be a factor in his favor. Another case cited by Jones holds that such an instruction is improper: "By directing that the jury 'must' take into account the long period of provocation in determining the effect of a cooling-off period, defendant's proposed instruction improperly singled out one factor, favorable to defendant, and improperly elevated it over other factors that the jury should also consider. This portion of the instruction was thus objectionable as argumentative and properly refused." (People v. Wharton (1991) 53 Cal.3d 522, 571.)
The trial court did not err in rejecting Jones's proposed jury instruction.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.