Opinion
A151040
07-24-2018
THE PEOPLE, Plaintiff and Respondent, v. SHANE RYAN MILLER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 5-161644-0)
A jury found defendant guilty as charged of violating Penal Code sections 459 (described in the verdict as "second degree burglary of a vehicle"), 466 (described in the verdict as "possession of burglar's tools"), and 148 (described in the verdict as "resist or delay a peace officer"). On this timely appeal, defendant's sole contention challenges his misdemeanor conviction for possession of burglary tools.
Such possession is prohibited by Penal Code section 466, which criminalizes "Every person having upon him or . . . in his . . . possession . . . [an] instrument or tool with intent feloniously to break or enter into any . . . vehicle as defined in the Vehicle Code." In 2007, this court concluded: "It is clear from the language of the statute that in order to sustain a conviction for possession of burglary tools in violation of [Penal Code] section 466, the prosecution must establish three elements: (1) possession by the defendant; (2) of tools within the purview of the statute; (3) with the intent to use the tools for the felonious purposes of breaking or entering." (People v. Southard (2007) 152 Cal.App.4th 1079, 1084-1085.)
For purposes of this statute, an "instrument or tool" is an item intended for use to break into or gain access to a vehicle. (See People v. Shaw (2017) 18 Cal.App.5th 87, 92.) When arrested at the scene of the burglary, defendant was in possession of a "shaved key," an item he acknowledges is within this definition. Thus, defendant is not challenging the first and second of the elements we identified as necessary for conviction.
His contest is with the third element, specifically as it was submitted to the jury with this instruction: "Defendant is charged in Count Two with possession of burglary tools in violation of Penal Code section 466. To prove that the defendant committed this crime, the People must prove the following": 1. "The defendant possessed a shaved key"; 2. "When the defendant possessed a shaved key, he had the intent to feloniously break into or enter into any vehicle"; 3. "Without having the right to break into or enter the vehicle"; and 4. "When he possessed a shaved key, the defendant knew or had some reason to know that it was intended to be used in committing a crime."
According to defendant, "The instruction was erroneous. What the crime requires is not just possession of a shaved key (or other burglary tool), knowledge that it was a shaved key, and intent to break into a vehicle. The crime requires possession of a shaved key with the intent to use that key to break into a vehicle, or to effectuate some other burglary. [Citations.] The given instruction did not tell the jury that it must find that appellant possessed the key with the intent to use it to effectuate a breaking and entering of a vehicle. Instead, the instruction erroneously substitutes appellant's intent to commit a crime—to feloniously break into or enter a vehicle [element 2 of the instruction]—for an intent to use the key to commit a crime, either the entry of the vehicle at issue in this case, or the unlawful breaking and entering of a different vehicle. [Citations.] The jury was never asked to find that appellant possessed the key with an intent to use it to effectuate a breaking and entering. The instruction omitted that essential element." In a nutshell, "The instruction . . . separates possession of the key from the required element of an intent to use it to effectuate a breaking."
" 'In a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement. [Citation.] Nonetheless, not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is " 'whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process.' " ' " (People v. Mills (2012) 55 Cal.4th 663, 677.) Ultimately, " '[t]he test is whether there is a "reasonable likelihood that the jury . . . understood the charge," in a manner that violated defendant's rights.' " (People v. Pearson (2013) 56 Cal.4th 393, 476.)
This court recently stated: "In evaluating a challenge to a jury instruction, we must consider whether there is a 'reasonable likelihood' that the jury understood the charge in the way defendants suggest. [Citations.] 'Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.' " (People v. Mackey (2015) 233 Cal.App.4th 32, 108.)
We cannot conclude that defendant was the victim of a due process violation. Reduced to its essence, defendant sees the instruction as constitutionally flawed because its second element did not have the words "to use it," so that it should have been "When the defendant possessed a shaved key, he had the intent to use it to feloniously break into or enter into any vehicle." Use of the prohibited tool to effect criminal entry is clearly implicit in the instruction. Read in its entirety, the instruction clearly linked possession to such an intent in the second and the fourth elements. We cannot discern any likelihood that the jury, " 'with commonsense understanding' " (People v. Mackey, supra, 233 Cal.App.4th at p. 108), interpreted the instruction to allow conviction for possession without intent to use it to commit a crime. (People v. Pearson, supra, 56 Cal.4th at p. 476.)
Moreover, the instruction is not to be examined " ' "in artificial isolation, but must be viewed in the context of the overall charge. " ' " (People v. Mills, supra, 55 Cal.4th at p. 677.) Here, the context was a completed burglary of an automobile. The jury was instructed that defendant could not be convicted of burglary unless the jury concluded beyond a reasonable doubt that "one the defendant entered a locked vehicle; and two, when he entered a locked vehicle, he intended to commit a theft." This only reinforces the conclusion of the preceding paragraph.
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.