Opinion
A113072
4-22-2008
THE PEOPLE, Plaintiff and Respondent, v. GARY BERNARD MOORE, Defendant and Appellant.
Gary Bernard Moore appeals from a judgment entered after a jury convicted him of first degree residential burglary. (Pen. Code, §§ 459, 460, subd. (a).) He contends his conviction must be reversed because (1) the trial court instructed the jury incorrectly, (2) the verdict form was inadequate, and (3) the upper term sentence imposed violated Cunningham v. California (2007) 549 U.S. ___ . We reject these arguments and affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jose and Elsa Eguizabal lived with their three children in a house in Richmond. On October 16, 2002, near 1:45 a.m., Elsa was awakened by a noise coming from the dining room. She got up to investigate and saw a strange man peering into a bag on the table. She quickly closed the door and woke her husband.
Jose went to investigate and saw appellant hiding behind the television in the living room. He grabbed appellant. Elsa joined in as did both of their sons. They were able to subdue appellant. Jose, Elsa, and one of their sons all suffered cuts and scrapes in the altercation.
The police arrived and tried to place appellant under arrest. Appellant resisted and it took several officers nearly five minutes to overcome him and place him in handcuffs.
After appellant was arrested, the police and the family examined the outside of the Eguizabals house. The screen on a front window had been removed and the window was broken in the place where appellant apparently had made his entry.
Based on these facts, an information was filed charging appellant with, inter alia, two counts of first degree residential burglary. As is relevant here, the information also alleged appellant had seven prior serious felony convictions (§ 667, subd. (a)(1)), six prior strikes (§ 1170.12), and had served five prior prison terms (§ 667.5, subd. (b)).
Subsequently, the prosecutor dismissed four of the prior serious felony allegations, three of the prior strike allegations, and three of the prison term allegations.
The case proceeded to a jury trial where the prosecution presented the evidence we have set forth above. Appellant testified in his own defense. He said that he often sells clothing, and that on the night in question, he was on his way to a convenience store carrying a jacket. He encountered a man and offered to sell him the jacket for $30. The man was interested, but he only had $15. He invited appellant to come with him so he could get the rest. The man led appellant to the Eguizabals home were he opened the door and led appellant inside. Once inside, the man took the jacket and left. Appellant sat inside for 10 to 15 minutes. At that point, he began to get nervous. He got up to look for the man and saw a bag in the dining room. He heard a noise and then went back into the living room. At that point, he noticed his shoe was loose. He bent down to tie it. As he did, a bunch of people attacked him. He struggled with them until the police arrived. He allowed the police to place him in handcuffs and escort him out of the house. Once outside, the police took turns beating him.
The jurors rejected this defense and convicted appellant of first degree burglary. In a jury trial that followed, the jurors found the three prior serious felony allegations, three strike allegations, and two prior prison term allegations to be true.
The jurors found appellant not guilty on the other first degree residential burglary count. Given the acquittal, we need not set forth the facts presented in support of that charge.
Subsequently, the court struck two of the strike findings and sentenced appellant to the upper term of 6 years doubled to 12 years pursuant to the remaining strike finding. In addition, the court sentenced appellant to 17 years on the enhancements for a total of 29 years in prison.
II. DISCUSSION
A. Instructions
Appellant contends the trial court erred because it failed to instruct the jury, sua sponte, on a lesser included offense.
"`"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]"" (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
Here, appellant contends the trial court should have instructed the jurors that trespass as set forth in section 602, subdivision (k) is a lesser included offense of burglary.
Section 602, subdivision (k) defines, as a trespass, "Entering any lands, whether unenclosed or enclosed by fence, for the purpose of injuring any property or property rights . . . ."
The court in People v. Harris (1961) 191 Cal.App.2d 754, faced this same argument. There, the defendant was charged with burglary with the intent to commit theft, but was convicted of trespass in violation of section 602, subdivision (j) which at the time proscribed entering lands "for the purpose of injuring any property or property rights" of the landowner. (Harris, supra, at pp. 755, 757.) Defendant challenged his conviction on the grounds that trespass is not a lesser included offense of burglary. (Id. at p. 755.) The People defended the judgment on the same ground upon which appellant rests his challenge to his conviction here: i.e., that the intent to commit theft is the same as, or includes, the intent to injure property or property rights. The Harris court rejected that interpretation of the trespass statute. Construing the words in section 602, subdivision (j) "`according to the fair import of their terms, with a view to effect their objects and to promote justice", and giving "`the usual, natural or ordinary meaning attributed to them" (Harris, supra, at p. 757, fn. 4), the Harris court concluded the Legislature did not mean that an intent to steal "embraces any intent described in section 602, subdivision (j), namely, a purpose to injure property or property rights or an intent to interfere with, obstruct, or injure a lawful business . . . ." (Harris, supra, at p. 758, fn. omitted.)
The prohibitions formerly set forth in section 602, subdivision (j), are now set forth in section 602, subdivision (k).
The Harris courts holding on this point had been adopted by a long line of cases. (See, e.g., People v. Lopez (1967) 249 Cal.App.2d 93, 103; People v. Harper (1969) 269 Cal.App.2d 221, 222-223; In re Stanley E. (1978) 81 Cal.App.3d 415, 421; In re Tammie J. (1980) 101 Cal.App.3d 24, 25; see also 2 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Crimes Against Property, § 248, p. 276.) It has also been recognized by our Supreme Court. (See People v. Birks (1998) 19 Cal.4th 108, 118, fn. 8, "It appears well settled that trespass is not a lesser necessarily included offense of burglary, because burglary, the entry of specified places with intent to steal or commit a felony . . . can be perpetrated without committing any form of criminal trespass. [Citations.]".)
Faced with this unbroken line of authority, we do not hesitate to conclude the trespass as defined in section 602, subdivision (k) is not a necessarily included offense of burglary. The court did not err when it failed to instruct on that offense.
B. Verdict Form
The information alleged appellant had served two prior prison terms within the meaning of section 667.5, subdivision (b). As is relevant, that section states, "where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefore, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction."
The trial court instructed the jurors on the principles they must apply when deciding the truth of the section 667.5, subdivision (b) allegations as follows:
"It is also alleged in the Information that before the com[m]ission of crimes, as to which you have returned a verdict of guilty, the defendant was convicted of assault by force likely to commit great bodily injury and attempted grand theft person, each a felony, and serve[d] separate prison terms; therefore, and there is a period of less than five years elapsed in which the defendant remained free of both prison custody and the commission of an offense which resulted in the conviction of a felony.
"You must now determine the truth of these allegations . . . . You [] must consider each of the alleged prior convictions separately."
Thus instructed, the jurors found the prior prison term allegations to be true using the following verdict form:
"Pursuant to Penal Code section 667.5(b), prior to the commission of the above noted offense, on or about December 14, 1995, in the Superior Court of the State of California, in and for the County of Contra Costa, the defendant, Gary Bernard Moore, was convicted of assault by force likely to commit great bodily injury, a felony, in violation of Penal Code section 245(a); and on or about June 2, 1998, in the Superior Court of the State of California, in and for the County of Contra Costa, the defendant, Gary Bernard Moore, was convicted of attempted grand theft person, a felony, in violation of Penal Code section 487(c)-664."
Appellant now contends the jurys finding on the two prior prison terms must be reversed because the verdict form did not mention the five-year washout period set forth in section 667.5, subdivision (b). We are unpersuaded. "`[T]he jurys function [is] to find whether the facts necessary for conviction [have] been proven, by assessment of the evidence admitted at trial in light of the courts instructions defining the types and quanta of facts necessary for conviction. The verdict, culminating this process, [is] the jurys statement whether it [has] or [has] not found those facts. [Citation.] . . . . There is no need in this factfinding process for the enumeration in the verdict of all of the elements of the offense or enhancement. Where the jury is fully instructed as to each element of a sentence enhancement, it is not necessary that the verdict enumerate each of those elements." (People v. Chevalier (1997) 60 Cal.App.4th 507, 514.)
Here, appellant does not dispute that the court instructed the jurors correctly on the five-year washout period contained in section 667.5, subdivision (b). The jurors finding on those allegations was not faulty because the verdict form did not also set forth that requirement.
C. Upper Term Sentence
The trial court sentenced appellant to the upper term of six years on his first degree burglary conviction explaining its decision as follows:
"[T]here are many factors that would allow me to impose the aggravated term, such as his long history, increasing seriousness, as well as the victims in fact were asleep in their bed at that time and particularly vulnerable.
"Although [defense counsel] makes a good argument, taking off a screen and crawling in a window isnt all that sophisticated, its still more sophisticated than entering into a garage or some other type of residential burglary. Its at night and I find it has sophistication. I find the aggravated term is justified."
Appellant now contends the trial court violated Cunningham v. California, supra, 166 L.Ed.2d 856, when it imposed the upper term.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the court held that Californias determinate sentencing law violated a defendants federal constitutional right to a jury trial by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 127 S.Ct. at p. 871.)
"The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]" (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) The latter exception was recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224, and has been construed broadly to apply to all factors based on a defendants recidivism. (See People v. Black (2007) 41 Cal.4th 799, 818-819.) Furthermore, if the trial court has found at least one aggravating factor that falls within either of these exceptions, the federal Constitution does not preclude the court from imposing an upper term sentence based on that and other aggravating factors that do not fall within these exceptions. (Id. at pp. 810-816.)
Here, one of the aggravating factors on which the trial court relied was within the Almendarez-Torres exception, i.e., that appellants prior convictions were numerous. The trial courts finding on that point is amply supported. The record in this case indicates appellant had a nearly 30-year criminal history that included convictions for assault, burglary, and robbery. Indeed, the jurors in this case found appellant had suffered five prior criminal convictions. By any measure, appellants prior convictions were numerous.
We conclude, pursuant to the Almendarez-Torres exception, the court properly sentenced appellant to the upper term.
III. DISPOSITION
The judgment is affirmed.
By order of this same date, we are denying appellants petition for writ of habeas corpus in A118654.
We concur:
Simons, J.
Stevens, J.