Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. VCF207435. Darryl B. Ferguson, Judge.
Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Hill, J.
Appellant, Samuel Mark Mosqueda, was charged with second degree burglary (Pen. Code, §§ 459, 460, subd. (b)). A jury convicted him of the lesser included offense of attempted second degree burglary (§§ 459, 460, subd. (b), 664)), and found true an enhancement allegation that he had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). The court imposed a prison term of two years, consisting of the one-year midterm on the substantive offense and one year on the prior prison term enhancement. The court also granted appellant 171 days of presentence custody credit, consisting of 115 days of actual time credit and 56 days of conduct credit.
Except as otherwise indicated, all statutory references are to the Penal Code.
On appeal, appellant contends the trial court’s response to the jury’s question regarding the intent required for attempted burglary violated appellant’s constitutional right to due process of law. In addition, as discussed in the “Conduct Credit” portion of the “Discussion” section below, we deem to be raised the contention that appellant is entitled to additional conduct credit under a recent amendment to section 4019. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
Samuel Barrett testified to the following: At approximately midnight on July 26, 2008 (July 26), Barrett, who was at that time employed as an ambulance driver, had just returned to the “station” and was “getting ready to park the ambulance” when he saw, from a distance of approximately ten feet, that the front and rear driver’s side doors of his pickup were open, and a person was “leaning in towards [his pickup].”
Barrett got out of the ambulance and saw that the person who had been leaning into his truck, whom Barrett identified in court as appellant, was holding a black box, “crammed full of [Barrett’s] stuff, ” that Barrett kept in his pickup. Barrett told appellant to “put the stuff down, ” but appellant attempted to run past Barrett. As appellant did so, Barrett “knocked [his] stuff out of [appellant’s] hands” and “stepped to one side.” Appellant ran off and Barrett’s partner, Brent Eichelberger, gave chase on foot. At that point, Barrett “radioed [for] assistance, ” got in the ambulance and drove off in pursuit of appellant. As he drove, Barrett saw appellant throw a grocery bag containing clothing belonging to Barrett “into the bushes.” Barrett did not see appellant drop anything else “during the chase.”
Eichelberger testified he chased after appellant and during the chase, he saw appellant drop what appeared to be a bag, but nothing else.
When Barrett left his pickup parked earlier that day, it was locked. He was sure of this because his “routine” was that “when [he] get[s] out of [his] vehicle, [he] lock[s] [his] vehicle before [he] leave[s] it.” He has never come back to his vehicle and found it unlocked. He had “[n]o idea” if his wife ever went into his vehicle while he was at work.
After the incident, Barrett looked for damage to his vehicle, but found none.
City of Visalia Police Detective Amy Watkins testified to the following: She was on duty on July 26 when, at approximately midnight, she received a report of a vehicle burglary in progress and a subject chasing a suspect. When she arrived on the scene, she saw “three subjects who had apprehended the suspect” and appellant, who was in handcuffs. Appellant told the detective the following: he “had been in the area drinking that evening”; he had “wandered off looking to get into some stuff”; he used to be a methamphetamine user and was “looking to relapse”; and he had vomited near Barrett’s pickup. Detective Watkins investigated but found no vomit on or near the pickup. Although it appeared the vehicle had been “ransacked, ” she observed no damage to the vehicle. A tool called a slim jim can be used to unlock a vehicle without damaging it.
Appellant testified to the following: He had been drinking the night of July 26 at several bars, the last of which was the Pump House. While there, he began “blacking out.” He left the Pump House and went to a parking lot. The next thing he remembered was waking up in the back seat of a truck and “someone [was] screaming in [his] face....” He did not remember how he got in the truck, but he may have “just opened up the door.” He did not have a slim jim in his possession. He did not break into the truck.
On cross-examination appellant testified he “remember[ed] opening up the door and getting in....”
Procedural Background
The court’s instructions to the jury included the following:
“The defendant is charged [in count 1] with burglary in violation of Penal Code Section 459. To prove the defendant is guilty of this crime, the People must prove that, one, the defendant entered a locked vehicle, and; Two, when he entered a locked vehicle, he intended to commit theft.”
“To prove that the defendant is guilty of the crime of attempted vehicle burglary, which is a lesser included offense to Count 1, the People must prove, one, ... the defendant took a direct but ineffective step toward committing vehicular burglary, and; Two, the defendant intended to commit vehicular burglary.”
The court also instructed the jury on the offense of vehicle tampering (Veh. Code, § 10852), as follows: “... a lesser included offense to vehicular burglary is tampering with a vehicle. To prove that the defendant is guilty of that crime, the People must prove, one, the defendant willfully tampered with someone else’s vehicle or the contents of that vehicle, and; Two, the defendant did not have the owner’s consent to do that act. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.”
After the jury began deliberating, the court informed the parties that the jury had a question as to “the definition of intent, ” at which point the jury was brought back to the courtroom, and the following exchange occurred:
“THE COURT:... **836178**, you’re the foreperson?
“A JUROR: Yes, sir, your Honor.
“THE COURT: The question I have is: ‘The jury would like to clarify intent as stated in attempted burglary.’ Well, the only definition I can give you is the common everyday definition of intent. If you are looking at a candle and you want to stick your hand in that candle and burn yourself, well, you’re intending to put your hand in that candle. It’s just the everyday -- there’s no mystical thing about intent in terms of its definition for purposes of either vehicular burglary or attempted vehicular burglary.
“A JUROR: That absolutely explains it. That’s perfect for me. Thank you, your Honor.
“THE COURT: Okay. Great. Thank you.”
DISCUSSION
Claim of Instructional Error
Section 459 provides, in relevant part, that a burglary is committed when a “person... enters... any... [motor] vehicle... when the doors are locked, ... with intent to commit... [theft]....” Accordingly, as indicated above, the court instructed the jury that the burglary charged in count 1 consisted of two elements: (1) entry into a locked vehicle, and (2) with the intent to commit a theft. And, as provided by section 21a, “[a]n attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (Italics added.) Thus, the mental state required for the crime of attempted burglary is the specific intent to (1) enter a locked vehicle, and (2) thereafter commit theft.
Appellant suggests, with respect to the first part of the required specific intent showing, attempted vehicular burglary requires both the intent to enter a locked vehicle and the knowledge it is locked. Appellant cites no authority for this proposition. We disagree. The statute contains no knowledge requirement. (§ 460, subd. (b).)
Appellant’s argument focuses on the intent element of attempted burglary and the court’s answer to the jury’s question on that point. He argues that the court’s answer to the jury’s question “improperly blurred the line between general and specific intent.” He elaborates as follows: “[T]he answer given to the jury regarding the intent required for attempted burglary being akin to voluntarily sticking your hand into a candle was likely to negate the specific intent required for attempted burglary and instruct the jury that appellant’s voluntary act of entering the [pickup] – by itself – was sufficient for attempted burglary.”
Proof that appellant voluntarily entered the truck was, appellant argues, sufficient to support a conviction of vehicle tampering (Veh. Code, § 10852), another offense on which the court instructed the jury as a lesser included offense of burglary. Vehicle tampering is the act of “wilfully injur[ing] or tamper[ing] with any vehicle or the contents thereof or break[ing] or remov[ing] any part of a vehicle without the consent of the owner.” (Veh. Code, § 10852.) The mental state required for that offense – that the defendant act willfully – “implies simply a purpose or willingness to commit the act.... It does not require any intent to violate law, or to injure another, or to acquire any advantage.” (§ 7, subd. (1); CALCRIM No. 1821.) “Thus, ” appellant argues, “because the court improperly answered the jury’s question regarding the intent required for attempted vehicular burglary, there is a reasonable chance that the jury misunderstood the concept of specific intent and convicted appellant of a greater crime than that [for] which he was liable.” We disagree.
A. Governing Principles
By statute, trial courts are required, on request of a deliberating jury, to instruct “on any point of law arising in the case.” (§ 1138.) Our Supreme Court has held that section 1138 imposes on the trial court a mandatory “duty to clear up any instructional confusion expressed by the jury.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212; accord, People v. Beardslee (1991) 53 Cal.3d 68, 97 [“The court has a primary duty to help the jury understand the legal principles it is asked to apply”].) “This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]” (People v. Beardslee, supra, 53 Cal.3d at p. 97.) But by the same token, “a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (Ibid.)
“‘“In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole....”’” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) “We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record.” (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331. “‘“[W]e must... assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions [as] given.”’” (People v. Martin, supra, 78 Cal.App.4th at p. 1111.) “‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’” (Id. at p. 1112.)
B. Analysis
When we apply the foregoing principles, we reject appellant’s contention that the court’s answer to the jury’s question in effect transformed attempted vehicular burglary into a general intent crime, i.e., a crime committed simply by voluntarily entering a locked vehicle.
The jury’s question was directed at the intent required for attempted burglary. The instruction on that offense told the jury that attempted burglary required the “inten[t] to commit vehicular burglary.” And vehicular burglary, the court instructed the jury, consists of entry into a locked vehicle with the intent to commit theft. Thus, taken together, the instructions on burglary and attempted burglary told the jury that the mental state required for attempted burglary was the two-fold intent to (1) enter a locked vehicle and (2) commit theft.
The court’s answer to the jury’s question did not tell the jury otherwise. Rather, it gave the jury an example of intent, which the jury could then apply to the question of whether appellant harbored the intent to enter a locked vehicle and commit theft. When we consider the instructions as a whole, and apply the principle that instructions, where possible, should be interpreted so as to support the judgment, we conclude that the court’s answer to the jury’s question did not tell the jurors that the intent element of attempted burglary was satisfied by proof that appellant merely intended to enter a locked vehicle.
Conduct Credit
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of section 4019 presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
The court sentenced appellant in November 2008, and calculated appellant’s conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) However, the Legislature amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.
This court, in its “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010, ordered that in pending appeals in which the appellant is arguably entitled to the benefit of the more generous conduct credit accrual provisions of the 2010 amendment to section 4019, we would deem raised, without additional briefing, the contention that prospective-only application of the amendment is contrary to the intent of the Legislature and violates equal protection principles. We deem these contentions raised here.
As this court explained in the recent case of People v. Rodriguez (2010) 183 Cal.App.4th 1, the 2010 amendment does not operate retroactively and does not violate the constitutional guarantee of equal protection of the laws. Appellant is, therefore, not entitled to additional conduct credit under that amendment.
DISPOSITION
The judgment is affirmed.