Opinion
D072340
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JULIO MESSER, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN368841) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Julio Messer of residential burglary (Pen. Code, § 459; count 1) and found true an allegation that Messer burglarized the inhabited portion of the building (§ 460, subd. (a)). Messer admitted allegations that he suffered one strike prior conviction under the "Three Strikes" law (§§ 667, subd. (b)-(i), 1170.12, 668) and one prior prison term conviction (§§ 667.5, subd. (b), 668). The court sentenced Messer to nine years in state prison consisting of the middle term of four years for the residential burglary doubled to eight years for the strike prior, one year for the prison prior, and a concurrent one-year term for possession of methamphetamine.
Undesignated references are to the Penal Code.
Messer was also charged with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2). He pleaded guilty to count 2 before trial.
Messer appeals, contending: (1) the trial court erred by not ordering a hearing sua sponte to determine whether he was competent to stand trial; (2) the court erroneously instructed the jury that it could find burglary by penetration of the window screen; and (3) there was insufficient evidence that he entered the residence. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 21, 2017, at approximately 1:00 a.m., S.W., C.R.'s neighbor in a senior living apartment complex, heard two banging sounds outside her apartment. S.W. testified the banging sounded like a window hitting a dowel. She turned off her lights, peeked out her window, and saw a man, later identified as Messer, in dark clothing with a knit cap and a skateboard standing across her apartment holding a bent window screen to C.R.'s apartment. S.W. immediately dialed 911. While S.W. was on the phone, Messer suddenly dropped the screen, grabbed his skateboard, and took off running. Messer is C.R.'s grandson. He had visited the complex many times, but at the time of the incident he did not have C.R.'s permission to be there.
Oceanside police officers were dispatched to the senior living complex. One officer walked to C.R.'s unit. He observed the lights were off and C.R.'s window screen had been removed from the window frame and placed on the ground next to the window.
Another officer drove to the complex's parking lot where he saw Messer walking on the sidewalk. Messer appeared "fidgety and nervous," and he matched the description given by S.W. The officer asked Messer for his name and date of birth, but the records did not match the information provided. When confronted with his lying, Messer gave his real name and date of birth. The officer testified that Messer informed him he was there to check on his grandmother, C.R., that he took the screen off her window, and that someone saw him. Messer also informed the officer that he knew C.R. was in the hospital.
Messer testified he gave the police officer false information because he was unsure whether there was a warrant for his arrest given he had abandoned his mandatory residential treatment programs for his methamphetamine addiction: "Um, well, for many years now I struggled with addiction, and I was always ordered to do residential treatment programs, but then when I do other residential treatment programs I would leave the residential treatment program, and I would abscond and be transient until—until I would be caught for absconding, and I would use a false name to continue on in my absconding." He gave a similar explanation as to why he gave a false name later in his testimony: "I was appointed to be in a residential treatment program by my parole officer. I've been struggling with completing residential treatment programs from the time of my release. And I've been in and out of many residential treatment programs. And when I would—when I would leave the residential treatment program because I was unable to complete it I would go on the run from my parole officer, and I would not report, and I would abscond. And every time that I would abscond I had a routine way of giving a false identity concerning my name so I could remain in my drug use—remain in my substance abuse and that was the name that I had used previously that had been useful for me."
C.R. had broken her ankle several days earlier and was at a nursing home on the night of the incident. C.R. testified that she placed a stick on the bottom of the window to ensure it could not be opened from the outside. She also testified that before she broke her ankle, she told Messer he was no longer allowed at her home because Messer had stolen things. C.R., however, allowed Messer to spend the night anyway because he was a transient and addicted to methamphetamine. According to C.R., Messer apologized to her for his actions.
A third responding police officer questioned Messer, who again said he was there to check on C.R. This officer asked Messer why he needed to remove the window screen to check on her; Messer responded that she was in the hospital. The officer then asked Messer why he was checking on C.R. when he knew she was in the hospital. At this question, Messer "kind of shut down."
Messer testified at trial. According to him, he was at C.R.'s apartment complex the night in question out of concern for her well-being. He had called his mother a couple of days earlier and learned C.R. had broken her ankle. Messer admitted that he was then under the influence of methamphetamine and alcohol. He noticed the light in C.R.'s apartment was on and became concerned C.R. had returned and fallen. Messer knocked on C.R.'s front door and called her name, but when he did not hear a response, he walked to the window closest to C.R.'s bed. Messer testified he intended to knock on the window to see whether C.R. was home. Instead, he removed the window screen and tried to open the window but could not do so because the window was secured by a rod or dowel:
"[Q:] How did you take off the screen?
"[Messer:] I grabbed it by the side right here, um, because it had been taken off before. When I had gone to it—it was already bent to where—it was already somewhat damaged. But when I removed it it came off quite easily. It wasn't even—it wasn't like something I had to pry it or rummage with. And I—before—after removing the screen from the window I set it down. I tried to—I remember I tried to put—I was trying to fix the window. I was trying to fix the screen back onto the window and that's at the time when I was unable to do that. I was like someone's—I thought to myself someone is going to think I'm trying to break in because I was unable to fix the screen back on the window.
"[Q:] So it's your testimony that you took the window screen off by kind of taking it off by the side?
"[Messer:] Yes.
"[Q:] Did you use two hands, one hand?
"[Messer:] Yes, two hands.
"[Q:] And, um, at that point did you entirely take the screen off?
"[Messer:] Yes.
"[Q:] Once the screen was off what did you do?
"[Messer:] Um, I believe—I believe that I—I believe that I tried to open the window. I tried to see if—because that lock that my grandmother said is there I was trying to see if perhaps that lock was not there. So being in the state of mind that I was again I say I was under the influence of alcohol and methamphetamine.
"[Q:] Okay. So then you took the screen off and you said that your purpose of taking the screen off was for some reason to knock on the window but you didn't knock on the window, you tried to open it, right?
"[Messer:] Yes.
"[Q:] And you couldn't because there was that rod or dowel there, right?
"[Messer:] Yes.
[¶] . . . [¶]
"[Q:] So you, um, decided to take the screen off. Once you tried to open the window you couldn't and so then you left the area?
"[Messer:] A well, yes. I, um, after I—I—after I—so I could not replace the screen I set it down and I—and I had my skateboard and I ran because I thought that—I thought if someone saw me there, did see me they would definitely call the police thinking I was trying to burglarize the apartment or something."
After the jury rendered its verdict and the court set a time for sentencing, the following colloquy occurred:
"[Messer:] "Sir, I would like to—I don't know how to go about this but when I was—I don't know how to go about this but when I was in prison—I haven't spoken about it because I don't know how to go into detail about it, but I was sentenced to prison in One Kings Way in Avenal State Penitentiary. And the men that surrounded me—the men that surrounded me their names described to me that I thought I was—that I thought I was led by that—I was led by the Holy Spirit to be distributing methamphetamine. So even in my name—in the name of my parole officer his name being Martin Hardy is my parole officer, so for me I was thinking Martin like a place where you shop in and Hardy like crystal methamphetamine like shards, and then the names of the men at the prison surrounded me were paying, sales, inlet, crystal bowl, all the names—all the names of the men at the penitentiary I was at that's why—then right at my release I relapsed because I—it's documented I'm sure that there's some way to find it out. I thought that I was—I thought I was doing what I was supposed to be doing.
"[The Court:] I guess I'm a little—I'm not quite clear on what it—I understand what you're telling me. I'm not quite clear on what it is you're asking of me.
"[Messer:] I don't know. I don't know. Um, I don't know if there's any way you can look into that that you would consider that considering my sentencing because that's why I kept leaving rehabs. I truly believed that I thought that God was leading me to distribute methamphetamine.
"[The Court:] So I'm tracking where you're at now. So here's—I can consider a variety of different things at sentencing. Part of what makes that important though and makes it easier for me to decide is that the probation officer puts in their report sort of what's going on, what's going on in the case, what was going on in your history.
"So my suggestion is, one, talk with [Messer's counsel] about the nature and the extent of the candor he thinks you should tell the probation officer. And if he—if you and he together believe that all this is important for me to know to make a decision you tell the probation officer. It will be in writing. And I'll be able to respond to it and deal with it. Okay."
Messer's sentencing hearing took place on May 11, 2017. The court indicated it had received and reviewed a probation report as well as a statement of mitigation filed by Messer's counsel. The probation report indicates Messer was initially cooperative in an interview with the probation officer, but ended the interview after being asked about his employment, stating he had no desire to obtain any form of employment and his case was " 'bullshit' " since "[h]e did not feel anything could be done to help his situation . . . ." Thus, the probation officer did not obtain Messer's medical, psychological, gang, or substance abuse information. Counsel's statement in mitigation requested probation, and cited as mitigating factors the fact the victim was Messer's grandmother, who desired drug and mental health treatment for him, and that the crime was committed because of an "unusual circumstance, in that [Messer] suffers from drug addiction and likely mental illness." The court heard from Messer's grandmother, who asked for lenience and expressed her fear that Messer would be harmed in prison. She stated he was "also extremely mental"; that he believed himself to be a prophet and needed mental help. Messer's counsel pointed out the statement in mitigation contained "some of those things about the mental health condition I was concerned about, as well as [Messer's] drug addiction, and the fact that there was no item stolen." He requested that the court consider placing Messer on probation. The court did not inquire into Messer's mental competence, and it sentenced Messer to state prison.
DISCUSSION
I. The Trial Court Did Not Err by Failing to Sua Sponte Hold a Hearing on Messer's
Competence to Stand Trial
Messer contends the trial court committed reversible error when it did not hold a hearing sua sponte to determine whether he was competent to stand trial. Specifically, he asserts there was substantial evidence of his mental illness shown by his discussion with the court after the jury rendered its verdict, his counsel's statements in mitigation and in support of probation, and C.R.'s statement at his sentencing hearing in which she informed the court that Messer believed himself to be a prophet and needed mental help. Messer argues C.R.'s remarks are the most compelling, since he was in her custody for most of his life and interacted with her almost daily. A. Legal Principles
" 'Trial of an incompetent defendant violates the due process clause of the Fourteenth Amendment to the United States Constitution [citation] and article I, section 15 of the California Constitution.' [Citation.] 'California law reflects those constitutional requirements. Section 1368, in subdivision (a), requires a trial judge to suspend criminal proceedings at any time "prior to judgment" if the court reasonably doubts "the mental competence of the defendant." A defendant can create reasonable doubt through substantial evidence of mental incompetence, or the trial court can raise the issue on its own.' [Citation.]
" 'Evidence is not substantial enough to mandate a mental competence hearing unless it raises a reasonable doubt on the issue. [Citation.] We have said that this standard is satisfied if at least one expert who is competent to render such an opinion, and who has had sufficient opportunity to conduct an examination, testifies under oath with particularity that, because of mental illness, the accused is incapable of understanding the proceedings or assisting in his defense.' [Citation.] However, ' "[m]ore is required to raise a doubt [as to a defendant's competence] than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant's ability to assist in his own defense [citation]." ' [Citation.] . . . '[A]bsent a showing of "incompetence" that is "substantial" as a matter of law, the trial judge's decision not to order a competency hearing is entitled to great deference, because the trial court is in the best position to observe the defendant during trial.' " (People v. Nelson (2016) 1 Cal.5th 513, 559-560.) B. Analysis
Applying the foregoing principles, we conclude Messer has not shown any basis for reversal. Messer does not argue he was unable to understand the nature of the criminal proceedings or that he was unable to assist counsel in his defense. Nor does Messer point to anything occurring at the outset of or during trial that would have given the court some indication that he suffered from any mental illness. Messer's counsel never expressed any doubt about Messer's ability to assist him in his defense during trial or after the jury returned its verdict.
Rather, the record shows that Messer understood the nature of the proceedings, the charges against him, and the nature of his appellate rights. Messer himself testified and admitted he tried to open his grandmother's window while rationally expressing his thought processes both on direct and cross-examination. He coherently explained that he would leave residential treatment programs, and when caught, he "would use false names to continue [ ] absconding." Messer's communications with the court following the jury's verdict show he understood his rights as an accused, such as his right to a jury trial for his previous convictions.
After the jury rendered its verdict, the court informed Messer of his rights as they related to his prior convictions. The court then stated, "Knowing all of that do you wish to give up your right to a court trial, to a jury trial and admit that the priors are true?" Messer responded, "Yeah. I was charged with them, so they're true. I'm not denying what I did."
Messer argues his unprompted postverdict statement to the court is substantial evidence of his mental illness. However, a careful reading of Messer's statement does not indicate any present inability to assist in his defense, rather, it shows Messer in an attempt to receive a more lenient sentence sought to explain to the court his beliefs during and after his time at Avenal State Prison and why he kept leaving his rehabilitation programs. Throughout the colloquy, Messer discussed his experiences in the past tense, indicating at his time in prison and at his release, and when he was leaving his programs, "I thought I was doing what I was supposed to be doing . . . . I truly believed that I thought that God was leading me to distribute methamphetamine." Messer stated he did not know if "[the court] would consider that [when] considering [his] sentencing." The court asked Messer to discuss his potential lack of capacity with the probation officer, but Messer ended that interview because he did not believe it would help his case. Assuming for purposes of this appeal that Messer at some point believed himself to be a prophet and led by the "Holy Spirit" to distribute methamphetamine, the record is nevertheless devoid of any indication that he could not assist in the conduct of his defense in a rational manner or that he did not understand the allegations against him. At Messer's sentencing hearing the court did not inquire why Messer refused to discuss his competency with the probation officer; however, Messer's behavior at no time gave the court reason to doubt his ability to cooperate in his defense. Absent substantial evidence raising a reasonable doubt about defendant's incompetence, "the decision to order such a hearing [is] left to the court's discretion." (People v. Gallego (1990) 52 Cal.3d 115, 162.) Here, Messer has given us no reason to question the trial court's decision, which we give "great deference" on appeal. (People v. Nelson, supra, 1 Cal.5th at pp. 559-560.)
Based on this record, particularly Messer's own testimony and his communications with the court, we conclude there was not substantial evidence that Messer was incompetent to stand trial, and thus the court did not abuse its discretion by failing sua sponte to declare a doubt as to his competency or order a competency hearing under sections 1368 and 1369.
II. There is Sufficient Evidence of Entry Supporting Messer's Burglary Conviction
Messer contends his burglary conviction must be reversed because there was insufficient evidence he entered C.R.'s unit. He concedes that a defendant's penetration into the area behind a window screen amounts to entry of a building within the meaning of the burglary statute even when the window itself is closed and is not penetrated. However, Messer states S.W. did not testify to hearing noises indicating he either knocked on the window or struggled to remove the window screen so as to suggest his hand may have entered the inner screen area, and he points out he did not explain at trial how he attempted to open the window. Messer argues the prosecution failed to present evidence as to whether it was necessary for Messer's hand to enter the area between the screen and the window in order to open it. Thus, according to Messer, any inference that he penetrated the screen with his hand or some object is "mere speculation or conjecture."
In addressing a challenge to the sufficiency of the evidence to support a conviction, we examine the entire 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. (People v. Alexander (2010) 49 Cal.4th 846, 917; People v. Kraft (2000) 23 Cal.4th 978, 1053.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Jackson (2016) 1 Cal.5th 269, 345; Kraft, at p. 1053.) The same standard applies when the conviction rests primarily on circumstantial evidence. (Kraft, at p. 1053.) In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (People v. Alexander, at p. 917.)
A person is guilty of burglary if he "enters any house" with the intent to commit larceny or any felony. (§ 459, italics added.) It has long been settled that the slightest intrusion by any part of the defendant's body is sufficient for entry. (Magness v. Superior Court (2012) 54 Cal.4th 270, 273.) For an entry to occur, the defendant must penetrate the building's outer boundary. (Ibid.) " '[T]here is an entry when the defendant, after opening a closed door, steps across a threshold . . . or when, in the course of pushing open a closed door or raising a closed window, his finger or hand happens to pass the line of the threshold or to pass through the opening.' " (Id. at p. 278.)
Architectural components such as doors, windows, walls, and roofs generally mark a dwelling's outer boundary. (People v. Valencia (2002) 28 Cal.4th 1, 11 (Valencia).) When in a particular case the dwelling's outer boundary is not readily apparent, a "reasonable belief test" applies. (Ibid.) Under this test, the pertinent inquiry is whether the architectural component "encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization." (Ibid.) In Valencia, the California Supreme Court applied this reasonable belief test to "conclude that penetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute even when the window itself is closed and is not penetrated." (Valencia, at p. 13.) There, the defendant held a screwdriver and removed a window screen from a bathroom window of a home, and tried unsuccessfully to open the window. (Id. at p. 4.) The court held this action was sufficient to constitute an entry for purposes of the burglary statute: "Under the reasonable belief test . . . a window screen is clearly part of the outer boundary of a building for purposes of burglary. A reasonable person certainly would believe that a window screen enclosed an area into which a member of the general public could not pass without authorization. . . . [W]indow screens, which announce that intrusion is unauthorized, do not limit their message to flies but extend it to burglars as well." (Id. at p. 12.)
Ten years after deciding Valencia, the California Supreme Court disapproved of footnoted dictum suggesting that entering an unenclosed balcony was not an entry for purpose of the burglary statute. (People v. Yarbrough (2012) 54 Cal.4th 889, 892-895; see Valencia, supra, 28 Cal.4th at p. 12, fn. 5.) This disapproval does not affect the validity of Valencia's core holding and reasoning.
The court continued: "We recognize that penetration into the area behind a window screen without penetration of the window itself usually will effect only a minimal entry of a building in terms of distance. But it has long been settled that '[a]ny kind of entry, complete or partial, . . . will' suffice. [Citation.] All that is needed is entry 'inside the premises' [citation], not entry inside some inner part of the premises. Furthermore, there is little doubt that even the minimal entry effected by penetration into the area behind a window screen—without penetration of the window itself—is 'the type of entry the burglary statute was intended to prevent.' [Citation.] Such an entry 'violates the occupant's possessory interest in the building . . . .' [Citation.] It also threatens ' " 'the germination of a situation dangerous to personal safety.' " ' [Citation.] . . . '[T]he inhabitants of a building are just as likely to react violently to an intruder's penetration of their window screen as to the penetration of the window itself.' " (Valencia, supra, 28 Cal.4th at pp. 12-13.)
The Valencia court stated its holding "reflects and furthers the occupant's possessory interest in the building and his or her personal interest in freedom from violence that might ensue from unauthorized intrusion." (Valencia, supra, 28 Cal.4th at p. 11; accord, People v. Nible (1988) 200 Cal.App.3d 838, 844-846 (Nible).)
Here, by convicting Messer of burglary, the jury necessarily found Messer entered C.R.'s home by penetrating the space behind the window screen. We conclude substantial circumstantial evidence supports this finding. Burglary is seldom established with direct evidence but may be inferred from all the facts and circumstances. (People v. Lewis (2001) 25 Cal.4th 610, 643; see People v. Massey (1961) 196 Cal.App.2d 230, 234 [fingerprints were used as circumstantial evidence to convict defendant of burglary in addition to direct evidence of defendant's identity]; People v. Mercer (1951) 103 Cal.App.2d 782, 791 [defendant convicted of burglary based on the court's instruction that a conviction may be had on circumstantial evidence].) It is reasonable to conclude Messer penetrated the area behind the window screen based on his admission that he tried to open the window after he removed the window screen; the police officer's testimony that the screen had been removed; S.W.'s testimony that she heard the sound of a window hitting a dowel and that she saw Messer holding the window screen to C.R.'s window; and C.R.'s testimony that she locked the window to her unit before she went to the hospital. The jury could reasonably deduce without speculating that Messer touched or grasped the window when he attempted to open it, thereby placing his hand in the area that had been beyond the removed window screen. Messer suggests it is necessary to present evidence like in Valencia, where evidence of "rub marks" or "pry marks" on the window frame were indicative of defendant's screwdriver forcing up against the window. We reject the notion that such direct evidence of penetration was required to sustain his burglary conviction. The circumstantial evidence recited above was amply sufficient to convince a rational trier of fact, beyond a reasonable doubt, that Messer entered C.R.'s unit within the meaning of section 459.
Messer also points to the court's remark during Messer's sentencing hearing that "all [Messer] did was bend the screen. He hadn't made actual entry into the home itself," and argues it demonstrates that he could only be convicted of attempted burglary. However, the trial court commented on Messer's inability to enter C.R.'s home only as a mitigating factor to be considered in imposing Messer's sentence, and its remark is not evidence. In any event, as discussed above, the window screen to C.R.'s unit formed its outer boundary, therefore an actual entry into C.R.'s unit was not necessary as Valencia explains. (Valencia, supra, 28 Cal.4th at pp. 12-13.)
III. Instructional Error
In instructing the jury, the court defined the elements of burglary with CALCRIM No. 1700, which provides that to prove burglary, the prosecution must show: "1. The defendant entered a building; [AND] 2. When he entered a building, he intended to commit theft." To further guide the jury, the court read a bracketed portion of the standard CALCRIM No. 1700 instruction providing: "Under the law of burglary, a person enters a building if some part of his or her body [or some object under his control] penetrates the area inside the building's outer boundary." In addition to these instructions, the prosecutor requested, and the court gave, a pinpoint instruction stating: "Penetration of a window screen but not the window itself constitutes an entry." The prosecutor stated the instruction was based on Nible, supra, 200 Cal.App.3d 838.
Messer argues the trial court committed reversible error by providing the requested pinpoint instruction. In part, he maintains it is not supported by Nible because in this case, it was "uncontroverted that the window screen had been completely removed from the window frame" and thus there could not be any penetration of the space between the screen and the window. We conclude the instruction was proper.
We determine the correctness of a jury instruction under the independent or de novo standard of review. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Pinpoint instructions 'relate particular facts to a legal issue in the case.' " (People v. Wilkins (2013) 56 Cal.4th 333, 348-349.) Such instructions are required to be given upon request when there is evidence supportive of the theory. (Id. at p. 349.) But pinpoint instructions may be refused if they incorrectly state the law, are argumentative, duplicative, potentially confusing, or unsupported by substantial evidence. (People v. Bivert (2011) 52 Cal.4th 96, 120; see also People v. Clark (2011) 52 Cal.4th 856, 975.) A trial court errs when it refuses to give legally correct and factually warranted pinpoint instructions. (See People v. Hughes (2002) 27 Cal.4th 287, 362.) " 'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' " (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
In Nible, a woman asleep in her apartment heard a noise, investigated and caught a burglar in the act of removing a screen of an open window. He had "pulled back part of the screen and crawled underneath it so that his face was about two to three inches from the window." (Nible, supra, 200 Cal.App.3d at p. 842.) There was no evidence the defendant had touched the window or crossed the boundary formed by the window into the woman's bedroom. (Id. at p. 843.) The Nible court asserted the fact that the " 'air space' " of the structure had not been violated is not necessarily determinative of whether there was an entry for purposes of the burglary statute. (Nible, supra, 200 Cal.App.3d at p. 844.) "As the burglary statute is designed to protect against unauthorized entry and its attendant dangers, the ultimate test of whether a burglarious entry has occurred must focus on the protection the owners or inhabitants of a structure reasonably expect." (Ibid.) Using this reasonable expectation standard, the Court of Appeal held that "when a screen which forms the outer barrier of a protected structure is penetrated, an entry has been made for purposes of the burglary statute." (Id. at p. 845.)
Messer argues Nible does not support this pinpoint instruction because unlike in Nible, the screen here was removed from the window frame, which makes the supplemental instruction inapplicable. Messer argues: "Penetration of a window screen constitutes entry only when the screen is still affixed to the window frame, when any penetration into the frame would necessarily penetrate the space between the window screen and the window." He further argues, "Conversely, penetration of the screen that does not also penetrate the space between the window screen and window—such as vandalizing, tearing or bending the screen after it has been removed from the frame— does not constitute a burglarious entry." Messer provides no authority for these propositions, and we may disregard them. (Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1509 [appellate court can deem a contention unsupported by argument and legal authority as waived]; People v. Bradley (2012) 208 Cal.App.4th 64, 84-85.)
They are unavailing in any event, as they ignore the existence of substantial evidence, summarized above, permitting the jury to conclude that Messer penetrated the area between the screen and the window after he removed the screen. And, they also contradict Valencia, in which the court favorably cited out-of-state authorities holding there was sufficient evidence of entry where the defendant removed a storm window to a structure and began to remove the inside window, but did not raise or disturb the inside window. (Valencia, supra, 28 Cal.4th at p. 13, fn. 6, citing State v. Crease (1982) 230 Kan. 541, 542 .) The evidence and Nible supported the court's giving the requested pinpoint instruction, which was sufficiently tailored to the facts of Messer's case.
Messer suggests the instruction did not correctly state the law because it allowed the jury to find burglary if only the screen had been penetrated without also requiring a finding of penetration into the area between the screen and the window. He is correct that as an abstract matter the instruction was amenable to the interpretation he now indicates, which could have supplied an improper basis for a burglary conviction, as where a defendant removes a screen and tears or damages it but does not otherwise invade the space between the screen and the window. However, even if the instruction is therefore considered ambiguous or erroneous, the error is harmless under any standard as it is not conceivable, given the evidence presented at trial, that the jury relied solely on such a theory for its verdict. (See People v. Frye (1998) 18 Cal.4th 894, 957 [a potentially misleading or confusing instruction constitutes error if " ' "there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution' "], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The evidence presented at trial and thoroughly discussed above (part II, ante) provides no rational basis for the jury to conclude that Messer merely removed, tore or bent the window screen, but did not invade the area behind it. As we have summarized, C.R. confirmed she secured her window with a dowel, and S.W. testified she heard two bangs that sounded like a window hitting a dowel, then saw Messer holding C.R.'s window screen. Messer admitted he attempted to open the window after removing the screen. It is inconceivable that the jurors would have based their verdict on the theory that Messer only damaged the window screen. As a result, even under the more rigorous standard of harmless error review (harmless beyond a reasonable doubt), Messer was not sufficiently prejudiced by the arguable error in the court's instructions to warrant reversal. (See People v. Flood (1998) 18 Cal.4th 470, 490 [instructional error is subject to harmless error analysis]; Cal. Const., art. VI, § 13.)
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.