Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF145078 Robert W. Armstrong, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.
R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
King J.
I. INTRODUCTION
Following a two-day jury trial, defendant Jeremy Edward Lumpkins was found guilty as charged of first degree burglary, a felony (Pen. Code, § 459; count 1) and possession of burglary tools, a misdemeanor (§ 466; count 3). Defendant was found not guilty of soliciting a minor to commit a felony. (§ 653, subd. (j); count 2.) The trial court sentenced defendant to four years in prison, but suspended the sentence and placed defendant on five years’ formal probation. Defendant was 30 years old when the crimes were committed in 2008, and he had no felony convictions as an adult.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals, claiming the trial court prejudicially erred in failing to give Judicial Council of California Criminal Jury Instructions, CALCRIM No. 3400, his requested instruction on his defense of alibi. He argues that substantial evidence, specifically his testimony and that of another defense witness that he was not present during the burglary, supported his alibi defense and the giving of the alibi instruction. We agree the instruction should have been given, but find its omission harmless in view of CALCRIM No. 220, the instruction on reasonable doubt.
Defendant also claims that one of the terms of his probation, which is stated in the sentencing minute order and which directs him to “[r]eside at a residence approved by [his] Probation Officer and not move without his/her prior approval, ” is overbroad and violates his constitutional rights to travel and freedom of association. We find it unnecessary to address this claim. The probation condition stated in the court’s oral pronouncement of judgment only requires defendant to keep his probation officer advised, at all times, of where he is living and working, and prevails over the condition stated in the minute order. We therefore remand the matter with directions to the trial court to correct its sentencing minute order to conform to its oral pronouncement of judgment in this respect. In all other respects, we affirm the judgment.
II. THE EVIDENCE PRESENTED AT TRIAL
A. Prosecution Evidence
1. Marco Ramos’s Testimony
On May 28, 2008, Marco Ramos was working as the maintenance manager and lived in an apartment complex on Bay Avenue in Moreno Valley. The complex was surrounded by locked gates. Neither pedestrians nor cars could access the complex without remote controls or keys. On May 28, Ramos saw a boy standing on a sidewalk inside the complex. After he saw Ramos, the boy said, “Somebody is coming. Somebody’s coming.” Ramos then saw defendant standing on the patio of apartment No. 117 with a screwdriver in his hand, trying to “pry” open the apartment’s sliding glass door. Ramos also saw a second boy, on the other side of the apartment, “looking out, to make sure that no one was coming, ” and a third boy standing on a sidewalk near the apartment. Ramos asked defendant what he was doing, and defendant replied that his girlfriend lived in the apartment. Ramos did not believe defendant because he knew that a woman with a husband and children lived in the apartment. Ramos also saw that the screens had been removed from the windows of the apartment and were lying on the ground.
Ramos told defendant he was going to call the police, and defendant threatened to hit Ramos with the screwdriver. Defendant then began walking toward the other side of the complex. Ramos called 911 on his cell phone, and followed defendant as he walked through the complex. The recorded 911 call was played for the jury, and on it Ramos was heard telling at least two people not to leave the area. Ramos also remarked that defendant was swearing at him as Ramos was speaking to the 911 dispatcher. Ramos had never seen defendant or the boys in the complex before. The police arrived within five minutes of the 911 call.
2. Rose Mendoza’s Testimony
Rose Mendoza testified that on May 28, 2008, she lived in apartment No. 117 with her husband and two daughters. She did not know defendant on May 28, and did not give him permission to enter her apartment on that date. When she left her apartment on May 28, all the screens were on the windows.
3. Daniel C.’s Testimony
At the time of trial in November 2009, Daniel C. was 12 years old and his brother David was age 13. Daniel C. testified that defendant was his friend and dated his and David’s sister Ashley. According to Daniel C., he and David were going to “rob a house” in the Bay Family apartment complex. As they were trying to break into an apartment, defendant walked up to them, asked them what they were doing, and took the screwdriver away from them. Then the maintenance man came and called the police.
When asked how he and David got into the apartment complex, Daniel C. began to say “we hopped over the..., ” then he said the gate was open and they went through the gate. Daniel C. admitted he had practiced his “story” with his sister Ashley, and that Ashley and defendant would be “mad at [him]” if defendant got into trouble. Next, Daniel C. testified that he and David were present when the police arrived, but defendant was not present and no screwdriver was involved. Then Daniel C. admitted defendant was present when the police arrived, and that he, Daniel C., told the police that defendant told him to be “the lookout.” Daniel C. denied that defendant told him to be the lookout, however, implying he had lied to the police. Daniel C. admitted that when he and Ashley practiced his trial testimony, they practiced with no one having a screwdriver and with only David and Daniel C., but not defendant, being present at the apartment.
Daniel C. further testified that when he saw the maintenance man, he told David, “Someone’s coming. Someone’s coming, ” and to drop the screwdriver. He also testified that defendant showed up right before the maintenance man showed up, and that defendant took the screwdriver away from David. Then, Daniel C. admitted defendant was present when he and David were walking around in front of the apartment complex, and David said, “Let’s go get a lick, ” or rob a house. Defendant did not want to rob a house and decided to “go looking for cans.” A third boy was with David and Daniel C. when they decided to break into the apartment. Daniel C. denied that defendant ever asked him to commit any crime, and claimed he told the police defendant was the one who suggested they rob a house because the police frightened him. Daniel C. also testified that defendant was present at the apartment before and after the maintenance man arrived, and that defendant, not David, was the one trying to get into the apartment when the maintenance man arrived.
4. Deputy Victor Pierson’s Testimony
On May 28, 2008, Riverside County Sheriff’s Deputy Victor Pierson responded to the Bay Avenue apartment complex in response to a 911 dispatch call. Another officer was already at the scene. Upon arriving, Deputy Pierson spoke with the officer who was there and with Ramos, who identified himself as the maintenance manager of the complex. The screens to two of the windows to apartment No. 117 had been removed; there were “pry marks” on one of the windows and on the sliding glass door, consistent with having been made by a screwdriver. A screwdriver was also at the scene.
Deputy Pierson spoke to Daniel C. at the scene. Daniel C. said (1) it was his brother David’s idea to break into the apartment, (2) defendant told Daniel C. to act as a lookout, and (3) Daniel C. acted as the lookout. Then, Ramos arrived and Daniel C. yelled to defendant and to David that someone was coming. At that point, Daniel C. said that defendant stopped trying to break into the apartment and walked away.
B. Defense Evidence
1. Defendant’s Testimony
Defendant testified that around 8:00 p.m. on May 28, 2008, he was walking down the street intending to collect cans when he saw three juveniles he knew, namely, Daniel C., David, and their friend “Junior, ” walking ahead of him and “carrying [on] their own conversation.” The juveniles asked defendant whether he wanted to go with them to the new apartment complex. Defendant told them “no, ” and continued on his way.
Defendant later finished collecting cans and returned to his residence. There, he was approached by a homeless woman named Fattice Jones. Jones told him his girlfriend’s two younger brothers were “down at the apartments, looking like they’re trying to break in.” Defendant went to find the boys to prevent the burglary. He entered the Bay Avenue apartment complex through an open gate as a car was leaving. Around 10 minutes later, he found the boys. David and Junior were standing at the window of an apartment, and Daniel C. was standing off to the side. Defendant walked up to David, screamed at him and smacked him, and David dropped the screwdriver.
Defendant picked up the screwdriver, and as he did so the maintenance man appeared and asked, “What are you guys doing?” Defendant told the maintenance man his girlfriend lived in the apartment, hoping he would “just leave it at that and walk away, ” so defendant could get the boys out of there. But the maintenance man knew it wasn’t defendant’s apartment and dialed 911. Defendant did not leave the scene because he wanted to find out what was going to happen to the boys. Defendant denied saying anything to the maintenance man while he was on the telephone to the 911 dispatcher. The police arrived 20 to 25 minutes later and spoke with the maintenance man and the boys.
Defendant admitted he lied to Ramos when he said his girlfriend lived in the apartment. He denied asking Daniel C. to commit a crime, that he or the boys tried to leave before the police arrived, or that he cursed at or threatened Ramos. He told the police he was not there to break into the apartment, but he did not tell the police what Fattice Jones had told him. After he was placed in the police car, he told the police he was there to stop the boys from breaking into the apartment. Defendant denied hearing David say, “Let’s go get a lick” or break into an apartment as he was walking behind the three boys that evening.
2. Fattice Jones’s Testimony
Fattice Jones testified that, on May 28, 2008, she went looking for defendant at his home after she saw two boys “[g]oing through a window” of an apartment. She found defendant at his home and told him the boys were trying to break into the apartment. Defendant was not with the boys when Jones saw them breaking into the apartment. Jones claimed she got inside the Bay Family apartment complex on May 28 because all the gates were open.
C. Prosecution Rebuttal
In rebuttal, Deputy Pierson testified that the gates to the apartment complex were not in an open position on May 28, 2008, but were opening and closing. Defendant was “pretty uncooperative” at the time of his arrest and did not tell the deputy he had come to the apartments to prevent the boys from breaking in or committing a crime.
III. DISCUSSION
A. The Failure to Give CALCRIM No. 3400 on the Alibi Defense Was Harmless Error
Defendant claims the trial court prejudicially erred in failing to give CALCRIM No. 3400, his requested instruction on his defense of alibi to the charges of burglary and possession of burglary tools, respectively, in counts 1 and 3. We conclude that, though the instruction was apparently timely requested and substantial evidence supported it, the failure to give it was harmless under the Watson standard.
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
CALCRIM No. 3400 states, in pertinent part: “The People must prove that the defendant committed _________ <insert crime[s] charged>. The defendant contends (he/she) did not commit (this/these) crime(s) and that (he/she) was somewhere else when the crime[s] (was/were) committed. The People must prove that the defendant was present and committed the crime[s] with which (he/she) is charged. The defendant does not need to prove (he/she) was elsewhere at the time of the crime. [¶] If you have a reasonable doubt about whether the defendant was present when the crime was committed, you must find (him/her) not guilty.”
CALCRIM No. 3400 includes a bracketed portion, which reads: “[However, the defendant may also be guilty of _________ <insert crime[s] charged> if (he/she) (aided and abetted/ [or] conspired with) someone else to commit (that/those) crime[s]. If you conclude that the defendant (aided and abetted/ [or] conspired to commit) _________ <insert crime[s] charged>, then (he/she) is guilty even if (he/she) was not present when the crime[s] (was/were) committed.]”
1. The Forfeiture Question
The People argue defendant has forfeited his claim of instructional error regarding the failure to give CALCRIM No. 3400. For the reasons we explain, the record is unclear concerning why the instruction was not given.
First, the record shows that defense counsel submitted a written request for jury instructions, including CALCRIM No. 3400 on alibi, shortly after trial commenced. (Cal. Rules of Court, rule 2.1055(b).) The record contains no discussion concerning the alibi instruction, however, including why it was not given or whether it was withdrawn. (See § 1093.5 [on request of counsel and before commencement of argument, trial court must decide whether to give, refuse or modify proposed instructions].)
Nor did defense counsel restate his request for the instruction or object to the trial court’s failure to give it at any later point during trial. Nor, apparently, did defense counsel submit a completed form of the instruction, without blank lines or unused bracketed portions, before argument. (§ 1093.5 [all proposed instructions must be delivered to court before argument]; Cal. Rules of Court, rule 2.1055(c)(3) [all proposed instructions must be prepared without any blank lines or unused bracketed portions, so they may be read directly to the jury].) Finally, the cover sheet for the jury instructions that were given indicates that no requested instructions were refused.
Defendant argues his written request for CALCRIM No. 3400 was sufficient to preserve his claim on appeal that the trial court erred in failing to give it. We tend to agree. As discussed, the record shows defense counsel timely requested the instruction in writing. But the record also suggests that defense counsel may have later withdrawn his request for the instruction. On the other hand, it is equally plausible that the trial court refused to give the instruction or that the court or defense counsel simply overlooked it. We therefore assume the instruction was timely and properly requested, and address the merits of defendant’s claim that the court prejudicially erred by failing to give it.
2. The Failure to Give CALCRIM No. 3400 Was Error
It has long been settled that a trial court does not have a duty to instruct sua sponte on the defense of alibi. (People v. Alcala (1992) 4 Cal.4th 742, 803-804; People v. Freeman (1978) 22 Cal.3d 434, 437-438, and cases cited.) The Bench Notes to CALCRIM No. 3400 state that the instruction must be given “on request when evidence of alibi has been introduced.” (Bench Notes to CALCRIM No. 3400 (2006) p. 997.) This is an application of the general rule that instructions which “pinpoint” the crux of a defendant’s case or defense, such as mistaken identification or alibi, are required to be given on request when substantial evidence supports the defense theory. (People v. Jennings (2010) 50 Cal.4th 616, 674-675; People v. Saille (1991) 54 Cal.3d 1103, 1119.) Substantial evidence is evidence deserving of consideration by the jury, or evidence a reasonable jury could find persuasive. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
Here, the testimony of defendant and Jones was sufficient to support CALCRIM No. 3400 on the charges of burglary and possession of burglary tools in counts 1 and 3. The testimony showed defendant was not present when the burglary was committed or when the burglary tool, namely, the screwdriver, was allegedly used to breach the apartment window and sliding glass door. According to the testimony, defendant went to the Bay Family apartment complex in order to prevent the boys from committing the burglary, after Jones saw the boys “going through a window” of an apartment. Jones found defendant at his home and told him what the boys were doing. Then, when defendant arrived at the apartment, he claimed he “smacked” David C., causing him to drop the screwdriver. Defendant claimed he then picked up the screwdriver, just before Ramos arrived on the scene. Given this evidence, it was error not to give CALCRIM No. 3400, again, assuming the instruction was properly requested and the request was not withdrawn.
3. The Failure to Give CALCRIM No. 3400 Was Harmless under Watson
Though substantial evidence supported giving the alibi instruction, there is no reasonable probability that defendant would have realized a more favorable result on count 1 or 3 had the alibi instruction been given. (Watson, supra, 46 Cal.2d at p. 836.) The defense of alibi is not an affirmative defense and cannot “‘be considered by itself, but must be considered in connection with all other evidence in the case. [Citation.] For this reason, in the absence of a request [for an alibi instruction]... it is sufficient that the jury be instructed generally to consider all the evidence in the case, and that defendant is entitled to an acquittal in case of a reasonable doubt whether his guilt is satisfactorily shown.’ [Citations.]” (People v. Freeman, supra, 22 Cal.3d at p. 438.)
In other words, the defense of alibi tends only to negate the prosecution’s evidence that defendant was present at the scene of the crime. (People v. Freeman, supra, 22 Cal.3d at p. 438; People v. Manson (1976) 61 Cal.App.3d 102, 211 [alibi instruction properly refused when prosecution did not claim the defendant was present at scene of the crime].) Thus, an alibi instruction is unnecessary when the jury has been instructed to consider the evidence as a whole and acquit the defendant if reasonable doubt concerning his guilt has been shown. (See People v. Freeman, supra, at p. 438 [given reasonable doubt instruction, “[i]t would have been redundant to have required an additional instruction which directed the jury to acquit if a reasonable doubt existed regarding defendant’s presence during the crime.”].)
Here, the jury was instructed to acquit defendant if it found the prosecution did not establish his guilt beyond a reasonable doubt. (CALCRIM No. 220.) Specifically, the jury was instructed that: “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendan[t] guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” (Ibid.)
In view of CALCRIM No. 220, it would have been redundant to instruct the jury to acquit defendant on counts 1 and 3 if it believed, based on all the evidence, that there was a reasonable doubt he was present at the scene of the crime. (People v. Freeman, supra, 22 Cal.3d at p. 438.) The alibi instruction would have added nothing of substance to the reasonable doubt instruction; it only would have pinpointed or tied defendant’s alibi defense to the prosecution’s theory that defendant committed the burglary and possessed the burglary tool because he was, in fact, present at the scene. This issue was adequately covered, though more generally so, by the reasonable doubt instruction. Accordingly, it is not reasonably probable that defendant would have realized a more favorable result in count 1 or 3 had CALCRIM No. 3400 been given.
We also reject defendant’s claim that the effect of the failure to give CALCRIM No. 3400 must be assessed under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. Contrary to defendant’s claim, the failure to give the instruction did not deprive him of his right to present a defense. (Cf. Crane v. Kentucky (1986) 476 U.S. 683, 690-691.)
B. The Probation Condition Stated in the Oral Pronouncement of Judgment Prevails Over the More Restrictive Condition Stated in the Sentencing Minute Order
In placing defendant on probation, the trial court orally imposed a condition that “the probation officer is to be kept advised of where you are working and where you are living at all times.” By contrast, the sentencing minute order states defendant is to “[r]eside at a residence approved by the Probation Officer and not move without his/her prior approval.” The latter condition is plainly more restrictive. Defendant claims the more restrictive condition stated in the sentencing minute order deprives him of his constitutional rights to travel and association. The People argue defendant has forfeited his right to challenge the condition on appeal because he did not challenge it in the trial court. Alternatively, they argue the condition is constitutionally valid.
We find it unnecessary to consider these claims because the condition stated in the court’s oral pronouncement of judgment prevails over the more restrictive condition stated in the sentencing minute order. When, as here, there is a discrepancy between the oral pronouncement of judgment and the clerk’s minute order, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471.) The error is clerical and may be corrected at any time, including on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
IV. DISPOSITION
The matter is remanded to the trial court with directions to strike that portion of its December 15, 2009, sentencing minute order which states that, as a condition of his probation, defendant is to “[r]eside at a residence approved by the Probation Officer and not move without his/her prior approval, ” and to replace that condition with the one stated in the court’s oral pronouncement of judgment, which requires defendant to keep his probation officer advised, at all times, of where he is working and where he is living. In all other respects, the judgment is affirmed.
We concur: Hollenhorst Acting P.J., Miller J.
Defendant does argue that the bracketed portion of the instruction should have been given. To be sure, the evidence did not warrant giving the bracketed portion because the prosecution was not claiming that defendant was not present when the crimes were committed, but otherwise aided and abetted or conspired with the perpetrator(s) to commit the crimes. (Cf. People v. Sarkis (1990) 222 Cal.App.3d 23, 26-28.) Instead, the prosecution claimed defendant was present at the apartment when the crimes of burglary and possession of burglary tools were committed.