Opinion
NOT TO BE PUBLISHED
Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Dennis Michael O’Brien and an accomplice entered a house at a construction site and tore copper pipe from the walls, and took other construction materials from and around the garage. A jury convicted defendant of second degree burglary and petty theft with a prior and acquitted him of an alternate charge of receiving stolen property. The trial court granted probation.
On appeal, defendant claims no substantial evidence shows that the garage was a structure covered by the burglary statute; in a separate claim he asserts the trial court failed to instruct the jury on what is a “building,” and his trial counsel should have requested such an instruction.
The uncontradicted evidence shows that the men entered the house itself. Further, the uncontradicted evidence shows the garage was attached to the house, and in such circumstances entry into the garage with the requisite criminal intent constitutes burglary. Therefore, even if the jury should have been instructed on what structures can support a burglary charge, any such error was harmless. We shall affirm.
BACKGROUND
On September 26, 2006, in case No. 62060877, defendant pleaded no contest to felony grand theft and was granted probation. (Pen. Code, § 487, subd. (a).)
On July 16, 2007, a new complaint was filed (case No. 62071538, alleging that on October 8, 2006, defendant and Somvang Disouryavong burgled a commercial building; other charges are not relevant to this appeal.
Disouryavong pleaded guilty and agreed to testify. He worked in construction and became friends with defendant at Thunder Valley Casino. When the men ran out of money, they decided to go to a construction site to steal copper to “take to recycle to get fast money to gamble again.” They left the casino around noon and drove a van into a construction site in Lincoln. He denied the gate to the site was locked. He and defendant took scrap copper pipes “in the garage” and cut them up, and also took a spool of wire from the outside of the garage. He also answered a question about the location of the scrap copper pipes as follows: “Q. Was that scrap pile inside or outside the house? A: Some was inside, some was outside.” He denied taking pipe from the walls of the house. He testified the homes were not “finished,” but some had “Sheetrock. And black paper, chicken wire.”
A construction superintendent testified he normally locked the gate on weekends and had done so the prior Friday. A sales agent called him on Sunday, October 8, 2006, to report the locks were cut, and when the superintendent arrived on site he saw Disouryavong and a Caucasian man taking copper from a house.
Specifically, he saw two men take copper out of “one of the homes.” They were “Running in and out of the house, taking copper out of the house.” He also testified:
“A. They were coming out of the house, back to the van, to the house.
“Q. Via the front door, via the window?
“A. Through the garage.”
That particular house already had front doors, but its garage did not have doors. “The house was fully plumbed” and there had not been scrap pieces of pipe lying around. The superintendent inspected the house and it had been vandalized; the copper pipes had been removed. He called the police and gave them the van’s license plate number, and was called about half an hour later to make in-field identifications. He identified the wire in the van as being from the project.
A Lincoln police officer testified he spotted the van about two miles from the site, shortly after receiving the crime report. Defendant and Disouryavong were in the van, and the superintendent arrived and identified them as the two men he had seen at the site. Wire and cut pipe, as well as bolt cutters, adequate to cut a padlock and to cut copper pipe, were found in the van.
A Lincoln police sergeant took a photograph, exhibit 4, of a piece of cut pipe still in the wall of the house. This photograph was taken from inside the house. He testified there were no scraps of pipe: “The house just contained open walls with pipe inside the house.” Based on the photograph, which shows wall sheathing behind the cut pipe, it appears he did not mean the walls were open to the elements, but that the walls were unfinished on the inside.
After the parties stipulated that defendant had been convicted of felony grand theft, the People rested.
Defendant testified he, Disouryavong and a third man left the casino together. He waited in the van while the other men loaded things into it; he thought they were getting their own tools and he did not know that they were putting pipes and a spool of wire into the van. The other man remained at the construction site.
In rebuttal, a Lincoln police officer testified that a few hours after defendant’s arrest, defendant told him he had not been into the construction site, that he “stopped at the gate.” This tended to show defendant’s consciousness of guilt.
The jury convicted defendant of burglary and petty theft with a prior. The trial court revoked defendant’s probation in case No. 62060877 and a third case (No. 620609366) was dismissed. At sentencing, the trial court reinstated probation. Defendant timely appealed.
DISCUSSION
I. Substantial Evidence
Defendant’s main argument is that the evidence showed the men “went into the garage of a home inside a construction site and removed copper pipes[;]” the garage did not have a door; and “Because the garage lacked a fourth wall, insufficient evidence existed to sustain a conviction for burglary.”
We review the evidence in the light most favorable to the verdict. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.)
Penal Code section 459 prohibits entry into a number of places with the intent to steal or commit a felony, and the list of such places includes “any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel . . . .” (Pen. Code, § 459.) As used in Penal Code section 459 and interpreted by case law, “a building is generally defined to mean a place that has walls on all sides and is covered by a roof.” (People v. Labaer (2001) 88 Cal.App.4th 289, 296; see People v. Gibbons (1928) 206 Cal. 112, 114; In re Amber S. (1995) 33 Cal.App.4th 185, 187.)
Defendant notes that a prior case held, “The garage was possessed of a door on the fourth wall which, although open at the time, sufficiently classified the garage as a building susceptible of burglary.” (People v. Picaroni (1955) 131 Cal.App.2d 612, 619.) Equating a garage door with a wall, defendant argues that because the garage door was not installed in this case, entry into the garage could not support a burglary charge. He further faults the Attorney General for stating that the garage was attached to the house.
We disagree with defendant’s claim. From the testimony that the men went “through” the garage to the house, the only reasonable inference is that the garage was attached to the house. Where a garage is attached to a house, it is considered part of the house and does not itself need to have four walls. (See People v. Fox (1997) 58 Cal.App.4th 1041, 1046; People v. Moreno (1984) 158 Cal.App.3d 109, 112; In re Christopher J. (1980) 102 Cal.App.3d 76, 77-79 [carport with two open sides].)
More importantly, defendant does not argue that the house did not qualify as a house for purposes of Penal Code section 459, which provides, “Every person who enters any house . . .” with the requisite criminal intent is guilty of burglary. (See People v. Sparks (2002) 28 Cal.4th 71, 78-79.) It is true that Disouryavong testified items were taken from and around the garage. But he also testified that some of the scrap pipe was inside the house. Exhibit 4 shows that someone had to be standing inside the house to cut the pipe from the wall. Further, the superintendent saw two people taking things “out of” the house, albeit “through” the garage.
Substantial evidence supports the burglary conviction.
II. Defining a Building
The trial court gave the now-standard instruction defining burglary, CALCRIM No. 1700, which in part required proof that “defendant entered a building” with intent to steal. No definition of building was given or requested. Defendant now asserts the trial court had a sua sponte duty to define “building,” or that trial counsel was incompetent because she failed to request a defining instruction.
If there was a technical instructional error, it was harmless on the facts of this case.
The People assert defense counsel’s failure to request further instruction forfeits this claim. (See People v. Rundle (2008) 43 Cal.4th 76, 151.) But whether a forfeiture occurred turns on whether the undefined term required instruction. “‘A court has no sua sponte duty to define terms that are commonly understood by those familiar with the English language, but it does have a duty to define terms that have a technical meaning peculiar to the law.’” (People v. Hoyos (2007) 41 Cal.4th 872, 915.) “[T]erms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance.” (People v. Estrada (1995) 11 Cal.4th 568, 574-575.)
As stated, as used in Penal Code section 459 and interpreted by case law, “a building is generally defined to mean a place that has walls on all sides and is covered by a roof.” (People v. Labaer, supra, 88 Cal.App.4th at p. 296.) This does not depart sharply from the ordinary understanding of a “building,” which is defined as “a [usually] roofed and walled structure built for permanent use[.]” (Merriam-Webster’s Coll. Dict. (11th ed. 2006) p. 162, col. b.) On the other hand, we have previously suggested that it is or may be a term of art. (See People v. Coffee (1921) 52 Cal.App. 118, 123.) Further, an alternative definition has been articulated in the case law and might not be understood by a layperson absent explanation: “If a definition of ‘building’ becomes important, the court may consider the traditional definition, namely, a structure with four walls and a roof, or the following definition that has evolved in certain court of appeal decisions, such as [People v. Brooks (1982) 133 Cal.App.3d 200, 206-207; People v. Alexander (1966) 244 Cal.App.2d 301, 305]: ‘A structure designed for and having the capacity to contain people or animals, or to shelter property.’” (Use Note to CALJIC No. 14.50; see also People v. Valencia (2002) 28 Cal.4th 1, 11-12 [“whether a reasonable person would believe that the element of the building in question enclosed an area into which a member of the general public could not pass without authorization”].) But even if “building” were a term of art requiring definition, any error was harmless in this case, regardless of which definition should have been given.
“Misdescription of an element of a charged offense is subject to harmless error analysis and does not require reversal if the misdescription was harmless beyond a reasonable doubt.” (People v. Hagen (1998) 19 Cal.4th 652, 670.) The inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182, 189], original italics.)
Defendant’s claim of prejudice is that the evidence at worst shows he and Disouryavong entered the garage, and had the jury been properly instructed, it might have found the garage did not have four walls and therefore did not qualify as a building under the burglary statute. But as we have explained, the uncontradicted evidence shows the garage was attached to the house and as a matter of law it did not need to have four walls. (In re Christopher J., supra, 102 Cal.App.3d at pp. 77-79 [carport with two open sides sufficient].)
Further, as stated, there was no dispute at trial, and no dispute on appeal, that the house was a house. (Part I, ante.)
In rejecting an analogous claim, where the trial court in effect told the jury the evidence showed the structure qualified for burglary, the California Supreme Court stated as follows: “The instruction required the jury to find that defendant entered a structure. It also required the jury to find that defendant entered a structure of the type shown by the evidence. The only thing that the instruction did not require of the jury was a finding that the ‘structure of a type shown by the evidence’ was a building. But only one type of structure was shown by the evidence: the Davieses’ house. By definition the house was a building. No rational trier of fact could have found that the structure shown by the evidence-the Davieses’ house-was not a building. The law does not require the jury to decide the impossible.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1225.)
The jury was free to disbelieve uncontradicted evidence, but further definition of “building” would not have changed its evaluation of the evidence. Had the jury been given a definitional instruction, it would not have reached a different result, because all of the evidence showed that the house (in a gated construction site, with sheathed walls, fully plumbed and with front doors already installed) enclosed an area sufficient to protect property. Thus, any error in failing to define “building” was harmless on the facts of this case.
To the extent defendant recasts his argument as an attack on trial counsel’s competence, we reject the claim.
Based on the evidence, counsel could rationally conclude there was no benefit to pressing the issue before the jury. At the preliminary hearing she had argued defendant should not be held to answer on burglary because “There’s no evidence that this was actually a building.” Thus, we cannot assume she acted in ignorance of the issue. Her client chose to testify, something outside her control. (People v. Nakahara (2003) 30 Cal.4th 705, 717.) Defendant claimed to be an innocent bystander. Although arguing the structure did not qualify for a burglary charge would not contradict the defense, counsel could rationally conclude it would detract from it. A claim that “Defendant didn’t steal and even if he did it wasn’t from a house,” is one most juries would look at with skepticism. Because the record does not preclude a plausible tactical reason for trial counsel’s decision not to press the definitional point, the remedy, if any, lies in habeas corpus. (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, Acting P. J., BUTZ, J.