Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 09WF0207 Gregg L. Prickett, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Lizama.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Danilo Mendiola.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
There is sufficient evidence defendants conspired and formed the intent to commit burglary prior to entering a home. The court did not err in not sua sponte instructing the jury regarding theft. We affirm.
I
FACTS
A jury found defendant Carlos Lizama guilty of conspiracy to commit residential burglary, burglary in the first degree, two misdemeanor counts of contributing to the delinquency of a minor, one misdemeanor count of possession of marijuana and a misdemeanor count of drinking an alcoholic beverage in public. The court sentenced Lizama to nine years in state prison.
The same jury found defendant Edgar Danilo Mendiola guilty of first degree burglary, conspiracy to commit residential burglary, and two misdemeanor counts of contributing to the delinquency of a minor. The court found that because Mendiola was a youth with no significant criminal record and that the instant crimes did not involve violence, probation was appropriate. One of the terms and conditions of probation was 364 days in Orange County jail.
On December 23, 2008, Lawrence Cutler, the manager of a drug and alcohol rehabilitation facility, was on his patio in Huntington Beach when he saw Heather Blackshear nearby. She was drunk. Cutler offered to walk her home. Cutler walked along with Blackshear for a while when Blackshear “veered off to the right.” Blackshear walked toward a group of four people. Cutler did not join the group. Cutler observed the group walk toward Blackshear’s home. He heard one of the group say, “we’re going to clean this drunk bitch out.”
When the group first got to Blackshear’s apartment, they were “just hanging out” for about an hour and a half. They listened to music and ate sushi. At some point, the group left the apartment and went to their car. One of the group said: “I thought we were leaving, but we didn’t end up leaving.” Lizama did not want to leave and said “let’s just hang out a little bit longer, ” so they all went back to the apartment. At the apartment, Lizama was observed placing a laptop next to the kitchen sink, right next to the doorway.
Meanwhile, concerned for Blackshear’s safety, Cutler “got two people” and went to check on her. Cutler and his friends stood across the street from the apartment house where Blackshear lived. Blackshear was in her front yard playing with her dog. Immediately in front of Blackshear’s door stood a man with his arms crossed, looking around with a stern look on his face. Cutler called the police.
The police arrived three or four minutes later. Cutler told them that Blackshear was extremely intoxicated and that she “had been surrounded by three gentlemen or four gentlemen and taken down Olive Avenue. They were currently in her house. She was outside, and [Cutler] was worried about her safety.”
Cutler had moved toward Blackshear. The officer testified that Cutler identified the location and suspicious persons he had seen. At first, the officer just observed the home from the front of his squad car. He saw “several subjects leaving the front door.” An officer asked Cutler if they were the people, and Cutler heard someone use a profanity and tell him to mind his own business. Police detained Lizama first and then saw Mendiola exit the apartment house. Mendiola “moved behind an electrical service box and appeared to crouch down behind that box out of [the officer’s] line of site.” Mendiola, along with two other people, ran down an alley.
At that point, the officer observed that Lizama, who was wearing a large, heavy jersey shirt, “had his two hands near his waistband and under his shirt.” The officer ordered Lizama to show his hands, and Lizama did not comply. The officer moved to “a position of concealment and cover, ” and placed his hand on his firearm. When Lizama took his hands out of his waistband, he removed an electrical cable with a box on the end of it and tossed it under an adjacent car. Next to the electrical box, where Mendiola had been hiding, police found “an Apple Mac book notebook-type computer.”
Blackshear identified the computer and charger as belonging to her. She also identified both defendants as being part of the group that went into her apartment.
II
DISCUSSION
Conspiracy and Intent to Commit Burglary
Both defendants argue there was insufficient evidence they formed an agreement to commit burglary or that they entered Blackshear’s apartment with the intent to commit a felony. The Attorney General maintains “[t]he jury could infer that Mendiola and Lizama, between the time they left Blackshear’s apartment and the time they returned, agreed to steal her computer. This inference, sufficient in itself, finds support in Larry Cutler’s statement to the police... that he heard one appellant tell the other, they were going to ‘clean this drunk bitch out.’”
“The necessary elements of a criminal conspiracy are: (1) an agreement between two or more persons; (2) with the specific intent to agree to commit a public offense; (3) with the further specific intent to commit that offense; and (4) an overt act committed by one or more of the parties for the purpose of accomplishing the object of the agreement or conspiracy. [Citations.]” (People v. Liu (1996) 46 Cal.App.4th 1119, 1128.) “From the very nature of the stealth generally involved in the crime of conspiracy, it is not necessary to prove that the parties came together and reached a formal agreement. [Citation.]” (People v. Massey (1957) 151 Cal.App.2d 623, 652.) Conspiracies are almost always proven by circumstantial evidence. (Ibid.)
“Every person who enters any house... with intent to commit grand or petit larceny or any felony is guilty of burglary.” (Pen. Code § 459.) “Burglary is defined as the entry of a structure with the intent to commit theft or any felony. [Citation.] Proof of intent is rarely susceptible of direct proof and may be inferred from the circumstances of the case. [Citation.]” (People v. Moody (1976) 59 Cal.App.3d 357, 363.)
In addressing challenges to the sufficiency of evidence, “the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that 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 appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“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. [Citation.]”’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
Here the group left the apartment but decided to return. The laptop was found by the electrical box where Mendiola had crouched down when he saw the police and the charger was under Lizama’s shirt. Cutler had heard someone in the group say “we’re going to clean this drunk bitch out.” Under these circumstances, we conclude there was sufficient evidence for a trier of fact to reasonably conclude defendants formed an agreement and an intent to return to the apartment in order to steal Blackshear’s laptop and charger and that Lizama placed the laptop next to the exit for Mendiola to carry it out.
Duty to Instruct
Both defendants contend the trial court erred when it did not instruct the jury on the crime of theft as a lesser included crime to burglary and on the crime of conspiracy to commit theft as a lesser included crime to conspiracy to commit burglary. The Attorney General’s argument is: “Theft is not included in burglary, even if theft is pleaded in some other count. A conspiracy to commit burglary does not necessarily include an agreement to commit theft. The charged conspiracy did not include theft, and even if it did, the jury’s finding appellants committed burglary means that any failure to instruct on a lesser target crime for the conspiracy was harmless.”
“Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118, fn. omitted.)
Defendants concede a burglary can be committed without necessarily committing a theft, so that is not their argument. Instead they state that “[t]aken as a whole, the evidence presented at trial and the charging language in the information not only charged burglary and conspiracy to commit burglary, it also charged theft.” Defendants go on to argue theft was alleged as an overt act in the information.
In count one, the information alleges defendants entered an inhabited dwelling with the intent to commit larceny. Count two charges conspiracy to commit the crime of burglary, and lists four overt acts: “Overt Act 1 [¶] Had a juvenile ask victim to allow them into her house [¶] Overt Act 2 [¶] Said, ‘We’re gonna clean this drunk bitch out’ [¶] Overt Act 3 [¶] Went into victim’s residence [in]... Huntington Beach, CA. 92648 [¶] Overt Act 4 [¶] Exited with her laptop computer and wall charger.”
With regard to the burglary charge, we note respondent’s argument encapsulates the fault in defendants’ contention because it “depends on amalgamating all the charges in the information so that elements or allegations concerning one offense are treated as applying to all the other offenses. Thus, they argue that, as charged theft was included in the burglary charge, not because the burglary charge alleged anything beyond entry with larcenous intent, but because the conspiracy charge specified actual theft as an overt act.” The fact that the prosecution alleged theft as an overt act in the conspiracy charge does not result in theft being included in the burglary charge.
Next we look at the conspiracy charge to examine whether or not the court erred in not instructing on conspiracy to commit theft as a lesser included offense of conspiracy to commit burglary. It would seem defendants ask this court to assume the evidence supports a finding defendants came to an agreement to steal the laptop and charger only after they were in the apartment for the second time, and it was theft, and not burglary, which was the target offense. This argument is contrary to the evidence and the record. The “clean this drunk bitch out” statement happened outside, not inside the apartment. And the jury convicted them of burglary, necessarily finding they entered the apartment with the intent to commit theft.
“We conclude that the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility. We further determine, in line with recent authority, that such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 165.) Since the jury here found defendants formed their intent prior to entering the apartment, any instructional error, and we do not find there was any, was harmless since it made no difference in the outcome.
III
DISPOSITION
The judgment against both defendants is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.