Opinion
C088303
04-01-2020
THE PEOPLE, Plaintiff and Respondent, v. MARCUS ANTONIO NINO, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCRFE20180002723)
A jury found defendant Marcus Antonio Nino, Jr. guilty of residential burglary of an occupied building (Pen. Code, §§ 459, 667.5, subd. (c)(21)) and witness intimidation (§ 136.1, subd. (a)(2)). In a bifurcated proceeding, the trial court found true allegations that defendant had prior strike and prior serious felony convictions. (§§ 667, subds. (a), (d); 1170.12, subd. (b).) The trial court sentenced defendant to an aggregate term of 13 years in state prison.
Undesignated statutory references are to the Penal Code. --------
Defendant appeals, arguing the trial court should have instructed the jury on aggravated trespassing as a lesser included offense of burglary. Defendant also asks us to remand the case to permit the trial court to exercise its discretion to strike his serious felony enhancements pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1-2). We will affirm the judgment and remand the matter for the trial court to exercise its discretion whether to strike the prior serious felony enhancements.
I. BACKGROUND
Seventy-four year old A.W. lived alone in the attached garage of his three bedroom house in San Joaquin County. He slept in a van in the garage, rather than the house itself, as he had suffered multiple break-ins and feared for his safety. A.W. installed a heavy duty lock on the door from the garage to the house and kept the door locked from the garage side. As a further precaution, A.W. carried a 9-millimeter pistol when he entered the house to change clothes or use the kitchen or bathroom.
On February 26, 2018, A.W. opened the garage door and saw defendant in his house. Defendant turned towards A.W. and started talking. He appeared to be hiding something in his hand.
Defendant started moving towards A.W. A.W. shut the garage door and retrieved his pistol from his pocket. He then opened the door and shot defendant. Defendant fell to the floor, and A.W. called police.
Officers were dispatched to A.W.'s house at 12:38 p.m. Paramedics transported defendant to the hospital, leaving his clothes in the entryway of A.W.'s house. In defendant's pockets, officers found a decorative plate with the word "Arizona" on it, a screwdriver, and a multi-tool with an incorporated flashlight.
Police showed A.W. a photograph of the plate found in defendant's pocket. A.W. was unable to identify the plate as his. At trial, however, A.W. testified that the plate belonged to his now deceased mother. A.W. indicated that his mother purchased the plate during a trip to Mesa, Arizona, to visit her brother. He added that the plate was similar in style to another decorative plate in his possession. During a search of A.W.'s house on the day of the incident, police observed decorative plates in several areas, including a shelving unit in the living room, an area near the stove, and a display cabinet. Police observed a pattern of dust on the shelving unit and empty doilies in the display cabinet, both of which suggested missing items.
Defendant wrote letters to A.W. from jail. One such letter stated, in part, that defendant intended to exercise his right to a jury trial. The letter continued: " 'Please don't show up if they subpoena you. Then I have a better chance. But if you do, please tell them the plate is not yours.' "
A.W. was called as a witness for the defense. He testified that he spoke with defendant after the shooting, as he lay on the floor in the entryway. He said that defendant admitted using drugs and possibly alcohol on the morning of the incident, and admitted entering A.W.'s house through the kitchen window.
Defendant's estranged wife also testified for the defense. She said she recognized the plate as having been one of the knickknacks that originally belonged to her great-grandmother, but were later given to defendant's mother, and then to defendant. She said defendant frequently tried to sell such items to support his drug habit. Like A.W., she had previously told investigators that she did not recognize the plate.
II. DISCUSSION
A. Instructional Error
Defendant argues the trial court prejudicially erred in refusing to instruct the jury on aggravated trespass as a lesser included offense of residential burglary. He asserts the error violated his right to due process by depriving him of the opportunity to present a complete defense. We are not persuaded.
A trial court has a duty, even in the absence of a request, to instruct on general principles of law relevant to the issues raised by the evidence and necessary to the jury's understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Included in this duty is an obligation to instruct on lesser included offenses when the evidence raises a question as to whether the greater, charged crime has been proven and there is substantial evidence that only a lesser included crime was committed. (Ibid.) We independently review whether the trial court erred by failing to instruct on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.)
There are two tests for determining whether an uncharged crime is a lesser included offense. "Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense." (People v. Parson (2008) 44 Cal.4th 332, 349.) "Under the accusatory pleading test, a court reviews the accusatory pleading to determine whether the facts actually alleged include all of the elements of the uncharged lesser offense; if it does, then the latter is necessarily included in the former." (Ibid.)
First degree burglary is the entry of a dwelling with the intent to commit a theft or felony. (§§ 459, 460, subd. (a).) Under section 602.5, subdivision (a): "Every person other than a public officer . . . who enters or remains in any noncommercial dwelling house, apartment, or other residential place without the consent of the owner . . . is guilty of a misdemeanor." (Italics added.)
Defendant appropriately concedes that trespass is not a lesser included offense to burglary under the elements test. (People v. Birks (1998) 19 Cal.4th 108, 118, fn. 8 (Birks) ["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 [citation], can be perpetrated without committing any form of criminal trespass"]; see also People v. Lohbauer (1981) 29 Cal.3d 364, 369 ["A burglary may be committed by one who has permission to enter a dwelling"].) Nevertheless, he argues that trespass is a lesser included offense to burglary under the accusatory pleading test. We disagree.
The amended information alleged in pertinent part that defendant "did willfully and unlawfully enter an inhabited dwelling house and inhabited portion of a building occupied by [A.W.] with the intent to commit larceny and any felony." Defendant argues the use of the word "unlawfully" to describe his entry effectively incorporated the crime of trespass, which involves an unlawful entry without consent of the owner. (§ 602.5.) Whereas unlawful entry is not required for burglary, defendant reasons, it is all that trespass requires. (See Birks, supra, 19 Cal.4th at p. 118, fn. 8 [burglary "can be perpetrated without committing any form of criminal trespass"].)
As the People correctly respond, Birks is dispositive and dooms defendant's argument. There, the information alleged the defendant " 'did willfully and unlawfully enter a commercial building . . . with intent to commit larceny and any felony.' " (Birks, supra, 19 Cal.4th at p. 118, fn. 8.) Confronted with virtually identical allegations, our Supreme Court concluded that trespass was not a lesser necessarily included offense of burglary under either the elements test or the accusatory pleading test. (Ibid.) We reach the same conclusion here.
Defendant argues whether trespass is a lesser necessarily included offense of burglary under the accusatory pleading test remains an open question after Birks. Again, we disagree. Although Birks decided a different question (whether the trial court had a duty to instruct on trespass as a lesser related offense), its dicta that trespass is not a lesser included offense to burglary has been applied in later cases. (See People v. Taylor (2010) 48 Cal.4th 574, 622 ["Trespass is a lesser related crime of burglary"]; People v. Foster (2010) 50 Cal.4th 1301, 1343-1344 ["[T]respass is a lesser related offense, not a lesser included offense, of burglary. [Citations.] . . . Regardless of defendant's legal and factual theories concerning how his conduct may have constituted trespass, that potential crime nonetheless remains at most a lesser offense related to (but not included in) the offense of burglary"].) Defendant relies on People v. Waidla (2000) 22 Cal.4th 690, but that case merely assumed "[f]or purposes of discussion only" that trespass was a lesser included offense to burglary under the accusatory pleading test. (Id. at p. 733.) The Supreme Court's later decisions in Taylor and Foster make clear that Waidla's hypothetical discussion was just that.
At best, trespass was a lesser related offense to defendant's burglary charge, as to which the trial court had no duty to instruct. (Birks, supra, 19 Cal.4th at pp. 136-137.) The trial court did not err in refusing to instruct the jury on trespass. (Id. at p. 137.) B. Senate Bill No. 1393
Next, defendant urges us to remand the matter for the trial court to exercise its newly granted discretion under sections 667, subdivision (a) and 1385, as amended by Senate Bill No. 1393, to strike the prior serious felony enhancements. The People concede, and we agree, that remand for resentencing under Senate Bill No. 1393 is warranted. Accordingly, we remand the matter to the trial court to exercise its discretion whether to strike defendants prior serious felony enhancements.
III. DISPOSITION
The matter is remanded to the trial court for the limited purpose of allowing it to exercise its discretion under sections 667, subdivision (a) and 1385, as amended by Senate Bill No. 1393, to strike the prior serious felony enhancements. If this consideration results in any change to defendant's sentence, the trial court is directed to amend the abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
MAURO, Acting P. J. /S/_________
MURRAY, J.