Opinion
B155951.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID JOSEPH RAMIREZ, Defendant and Appellant.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Cochrane and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, appellant David Joseph Ramirez was convicted of first degree burglary (Pen. Code, § 459). A woman called police when she heard noises outside her home at 2 a.m.; appellant was found outside a broken window clad in only shorts and possibly carrying a miniature butcher knife. In a bifurcated proceeding, the trial court found true allegations of prior strikes and serious felony enhancements. The trial court denied a Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628) and sentenced appellant to 36 years to life in prison. Appellant appeals the judgment of conviction. We shall reverse for prejudicial instructional error, with directions to conduct an additional hearing pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535, 113 Cal. Rptr. 897, 522 P.2d 305 (Pitchess).
All further statutory references are to the Penal Code.
Appellant received 25 years to life as a third strike sentence, enhanced by two consecutive 5-year serious felony enhancements and a 1-year prior prison term.
CEDURAL HISTORY AND STATEMENT OF FACTS
A female resident of a three-level single family house on West 126th Street near Berendo was awakened at 2 a.m. on July 17, 2001, by the noise of something moving in her backyard. She could hear the crunching of leaves and heard walking but could not see anything out her bedroom window. The noises continued, and she heard a sound like dragging on concrete, at which time she decided to go into the other bedroom to call 911. The noises were getting louder; she was scared and dialed 911. When she got off the phone, she heard glass break.
She testified she was on the phone with the 911 operator until the police actually arrived.
The police arrived quietly and with their lights off. The resident heard glass breaking about the same time she heard the police helicopter and ran downstairs and out of the house. She saw the police come out with appellant, a person she did not know and to whom she never gave permission to enter her backyard or residence.
After the police put appellant in their car, the resident followed the police to the backyard. The top part of a window was broken on the east side of the house. A screen that had been inside that window was laying down inside the house, and the curtains on that window had been pushed in and were hanging across a coat rack, off their holder. A tool used to weed was below the broken window, not in the location she had left it. Plastic patio chairs had been moved and stacked up under another window. The police estimated the chairs were stacked and tipped over under a window that was eight to ten feet high. The resident saw a miniature meat cleaver she had never seen before by the gate where the officers handcuffed appellant.
Deputy Sprengel did not retrieve a miniature cleaver. He believes he saw one and thinks someone indicated appellant had it on his person. Deputy Novelich testified he recovered a small replica of a butcher knife and some change in appellants shorts pockets. The butcher knife was 4-5 inches in length and the blade was 2-3 inches. In training, Novelich wrote the report and did not mention that small butcher knife, not thinking "it was relevant to the case at hand and I wasnt sure if that was [appellants] knife or if he had picked it up in the backyard where he was at." According to Novelich, Sprengel, whose observations were included in the report, checked the report and made no changes; an on duty sergeant also approved the report. The booking report does not indicate any butcher knife was booked, so he guessed it was left at the scene.
Deputy Sheriffs David Sprengel and Gary Novelich arrived at the scene about 2:15 a.m. They called for a helicopter to be available. As they approached the house, they heard glass breaking on the east part of the house. When Sprengel got to the east side of the house, he asked the helicopter to illuminate the yard. With the yard illuminated, Sprengel saw appellant in only a pair of shorts standing next to a window. Appellant appeared to be crouched down slightly about two to three feet from the broken window and looking inside the house.
Sprengel approached pointing his gun at appellant. No one else was in the backyard or front area. Appellant, who had no cuts on his hands or glass on him, complied with the orders. Wearing only white shorts, appellant was crouching down looking in the furthest southeast window. No one else was in the front or back areas. The police handcuffed and detained appellant.
No one saw appellant break the window, and there were no cuts on his hands. Novelich initially testified appellant was about 1 to 2 1/2 feet from the window but could not remember if he was looking into the window of the yard. He did not see appellant crouching. After reading his testimony from the preliminary hearing, Novelich corrected his testimony to state that he did not personally see appellant standing next to the window.
The next day, Detective Tomaw retrieved the garden tool for fingerprinting but did not believe fingerprints could be retrieved from the window. No fingerprints were requested from the windows, screen, curtain rod, or garden tool. The print technician tried to lift prints from the garden tool but no prints came up.
The defense called no witnesses.
CONTENTIONS ON APPEAL
Appellant contends: 1. The trial courts refusal to discharge juror number four for good cause violated appellants right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments. 2. The trial court violated appellants right to a jury trial in instructing "You have to vote. There is no room in this process or in the system for sitting on the fence." 3. The prejudicial sua sponte instructional error and erroneous answer to the jurys questions on the element of intent were not harmless beyond a reasonable doubt and had a substantial and injurious influence on the verdict obtained. 4. The denial of discovery regarding Deputy Sprengel was reversible error. 5. The cumulative errors require reversal. 6. The unauthorized one-year section 667.5, subdivision (b), enhancement further violated Due Process.
DISCUSSION
1. The instructional error and answer to the jurys questions on the element of intent were prejudicial.
The jury was instructed that as to both counts there must exist a union of act or conduct and a certain "specific intent in the mind of the perpetrator. Unless this specific intent exists the [crime] to which it related [is not committed]."
The jury was told that "every person who enters any building with the specific intent to steal, take, and carry away the personal property of another of any value and with the further specific intent to deprive the owner permanently of that property or with the specific intent to commit, a felony, is guilty of the crime of burglary in violation of Penal Code section 459." (CALJIC No. 14.50; italics added.) Although the CALJIC instruction leaves a space to insert a specific felony or felonies, none was inserted in the case at bench.
In further describing the crime, the court read that the elements that must be proved are first, that "A person entered a building" and, second, "At the time of the entry, that person had the specific intent to steal and take away someone else property and intended to deprive the owner permanently of that property." The court asked counsel to approach before reading more of the instruction and stated "I dont know what is going on here. How did I miss this." Both counsel agreed the word "or" needed to be inserted. The court then read the second element of burglary as follows: "At the time of the entry, that person had the specific intent to steal and take away someone elsess (sic) property and intended to deprive the owner permanently of that property or at the time of the entry, that person had the specific intent to commit a felony." (Italics added.)
Moreover, the jury was told: If you are satisfied beyond a reasonable doubt and agree unanimously that defendant made an entry with the specific intent to steal or to commit a felony, you should find the defendant guilty. You are not required to agree as to which particular crime the defendant intended to commit when he entered." (CALJIC No. 14.59) Aside from stealing or theft, no specific felony was enumerated.
The defense asked for an instruction on trespass as a lesser offense based on the evidence. The trial court denied the request.
During deliberations, at 10:20 a.m. on December 12, 2001, the jury sent a note asking: "Can we have a definition of felony? What is a felony? What constitutes something to be a felony?" At 10:38 a.m., the question was discussed outside the presence of the jury. The court stated its intention was to read Penal Code section 17. The People expressed the concern that reading section 17 "gets into punishment" and "I dont think thats a fair definition to be given to the jurors with regards to definition of a felony." The court then asked for the dictionary definition, which was a "crime of a graver or more atrocious nature than those designated as misdemeanors." But the court noted that, especially where there is a wobbler, the sole issue in determining whether a crime is a felony is the punishment. The defense asked to define in terms of section 17 and opposed the Blacks Law definition. The court then considered a citation to a 1923 case that stated "Generally, a crime is identified as a felony because the Legislature declares it to be such or because the punishment specified is imprisonment in a state prison" and decided to give the jury that definition. Defense counsel again objected "on the Blackstone definition."
Penal Code section 17 defines felony, misdemeanor, and infraction in terms of the punishment imposed, e.g., "A felony is a crime which is punishable with death or by imprisonment in the state prison." ( § 17, subd. (a).)
At 10:50 a.m., the question was answered in open court. The court informed the jury: "Generally - and Im reading Witkin. Generally, a crime is identified as a felony because the Legislature declares it to be such or because the punishment specified is imprisonment in state prison."
"A crime of a graver or more atrocious nature than those designated as misdemeanors."
After so instructing, the court stated: "Thank you. Forge ahead. Forge ahead. Do you need a recess now, or do you need -" to which the foreperson replied: "No. We11 go back there." The jury resumed deliberations at 10:53 a.m. and announced its verdict about forty minutes later.
We see no validity to appellants complaint regarding the trial courts request to "Forge ahead. Forge ahead."
As our Supreme Court recently stated in People v. Hughes (2002) 27 Cal.4th 287, 348-349, failure to name and define the target felony is error: "In People v. Failla (1966) 64 Cal.2d 560 [51 Cal.Rptr. 103, 414 P.2d 39] (Failla ), we held: Where the evidence permits an inference that the defendant at the time of entry intended to commit one or more felonies and also an inference that his intent was merely to commit one or more misdemeanors or acts not punishable as crimes, the court must define felony and must instruct the jury which acts, among those which the jury could infer the defendant intended to commit, amount to felonies. Failure to do so is error, for it allows the triers of fact to indulge in unguided speculation as to what kinds of criminal conduct are serious enough to warrant punishment as felonies and incorporation into the burglary statute. (Id., at p. 564.)
"The duty to define such so-called target offenses and instruct on their elements has become well established. [Citations.] Indeed, at the time of trial, the Use Note to CALJIC No. 14.50—then the standard instruction for burglary—admonished: If the defendant is charged with entering to commit a felony other than theft, as was the present defendant, the felony must be named in the instruction and instructions defining such crime must be given. (Use Note to CALJIC No. 14.50 (5th ed.1988) p. 170.) We recently reaffirmed this understanding of Failla in a related context: In Failla, . . . we held that when a defendant is charged with burglary, the trial court, on its own initiative, must give instructions to the jury identifying and defining the target offense(s) that the defendant allegedly intended to commit upon entry into the building. (People v. Prettyman (1996) 14 Cal.4th 248, 268 [58 Cal.Rptr.2d 827, 926 P.2d 1013], italics in original.)" (Accord People v. Rathert (2000) 24 Cal.4th 200, 203 ["In a burglary prosecution, complete and accurate jury instructions include the definition of each felony the defendant is alleged to have intended to commit upon entry into the burglarized structure. (Citations.)"]) The failure to name the felony or felonies and give instructions defining those crimes in the case at bench was error.
Although such omission is erroneous, the court in People v. Hughes, supra, 27 Cal.4th 287, 353, held that the failure to define the target felonies may be nonprejudicial and, using the standard of Chapman v. California (1967) 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, found the error in Hughes not to be prejudicial. In Hughes, supra, 27 Cal.4th 287, 251, "under most of the possible factual scenarios that defendant posits whereby the jury might have erroneously found he intended rape, he still would be guilty of burglary; additionally, the one possible factual scenario under which the jury might have erroneously found that he intended rape is simply untenable.
Hughes is distinguishable. The jury in Hughes, supra, 27 Cal.4th 287, 348, was instructed with three target crimes for the burglary count, i.e., it could find defendant guilty of burglary if it found that he entered the victims apartment with the specific intent to commit theft, or sodomy, or rape. The trial court instructed on the elements, including the required mental states, for theft and sodomy. But defendant was not charged with rape, and the court did not instruct, at any time, on the legal definition (including the required mental state) of that offense. Thus, the jury in Hughes, unlike the jury in the case at bench, at least knew what the target offenses, including rape, were. Moreover, except for one scenario posited by Hughes, any of his versions involved intent to commit a sexual felony, even if not specifically rape. As for the posited "highly problematic scenario," that Hughes entered intending consensual sex and only thereafter acquired the intent to employ force or fear, the court noted that "rape is commonly understood to mean sexual intercourse (however defined) against the will of the victim." and that no jury would believe that consensual sexual intercourse was rape. (Id. at p. 352.) Thus, any of the sexual acts posited by Hughes would have been felonies.
Appellants intent was at issue in the case at bench. The prosecutor argued appellant had felonious intent, and defense counsel argued that appellants intent, should the jury believe he was the person who broke the window, was ambiguous. Defense counsel posited the example of a celebrity who broke into a neighbors house merely to sleep and not to commit a felony. If the jury was speculating about what intent appellant had as he entered and did not understand that some criminal acts they may have posited were misdemeanors and not felonies, the erroneous instructions were prejudicial. Given a standard of Chapman review, we cannot find the error to be harmless beyond a reasonable doubt and therefore must reverse the conviction.
Appellant had filed a 995 motion based on no proof of specific intent to commit theft or any other felony as required by section 459, as well as lack of entry into the residence.
There is evidence to support a finding of felonious intent. See People v. Dreyer (1945) 71 Cal. App. 2d 181, 187, 162 P.2d 468, italics added, relied on by respondent: "As was so aptly stated in the case of People v. Martone, 38 Cal. App. 2d 392, 394 ; The contention is made by defendant that in order to convict him of burglarious intent, it was necessary to presume such intent. With this we cannot agree. The circumstances surrounding him at the time of his apprehension furnished sufficient evidence, which, if believed by the trial judge, would warrant the inference of intent to commit a burglary. (People v. Mize, 80 Cal. 41 ; People v. Perini, 94 Cal. 573 .) Certainly, breaking a door of a building belonging to a stranger at 2 oclock in the morning could not have been done with a view of protecting the property or for any other lawful purpose. (See, also, People v. Sturman, 56 Cal. App. 2d 173, 180 .)" The issue in People v. Dreyer supra, was whether substantial evidence supported the intent for burglary, not whether the correct target instruction was given. Here, too, we have no doubt there was substantial evidence to support appellants unlawful intent. Standing outside someones house at 2 a.m. with only shorts on and then breaking the window with a garden tool supports a conclusion that appellant did not intend anything innocuous by his conduct, but the evidence did not necessarily rule out an intent to commit a trespass, a misdemeanor. The question is whether the instruction given allowed the jury properly to consider the charge and the defense.
2. The denial of discovery regarding Deputy Sprengel requires a new Pitchess hearing.
Appellant filed a motion for pretrial discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535, 113 Cal. Rptr. 897, 522 P.2d 305, regarding misconduct relating to deputies Novelich and Sprengel. The motion specifically asked for information "relating to official misconduct amounting to moral turpitude, including but not limited to allegations of false arrest, fabrication of police reports, fabrication of probable cause, false testimony, perjury, as well as the dates of filing of such complaints;" "complaints of false arrest, the fabrication of charges and/or evidence, and general acts of dishonesty," and disclosure of discipline imposed. The defense expected "to show that Mr. Ramirez was not looking inside the house through a broken window, as stated in the police report," did not tell them they could not charge him with burglary "because you cant prove the intent," and thus wanted information on any fabrication by the officers. The courts tentative ruling was to grant an in camera hearing as to Novelich, who wrote the report, but not as to Sprengel. The court believed that the motion was based on discrepancies in the police report at the preliminary hearing, at which he thought that Novelich and not Sprengel testified. According to the court, "Deputy Sprengel told his partner that he, Sprengel, saw the defendant looking in the building. At prelim Novelich testified and said, no, he was standing by the window." In addition, Novelich wrote the report in which defendants alleged statement about not proving the intent was recorded, so the court believed Novelichs putting those statements in the report justified an in camera hearing as to Novelich but not Sprengel.
Defense counsel countered: "In regards to Deputy Sprengel, the police report is based on what Deputy Sprengel had told Deputy Novelich. And so based on that, a false statement that was given to Deputy Novelich, which incorporated into the police report that false statement . . . is, in essence, the report that Deputy Novelich has written. And so I believe there is grounds for seeing if theres any complaints against Deputy Sprengel in that regards because its a big factor in regards to the police report." The prosecutor argued that the supporting declaration does not "contain the specific factual scenario justifying disclosure against Deputy Sprengel."
The court then found a prima facie showing for the requested discovery had been made regarding Deputy Novelich, but not regarding Deputy Sprengel. The court conducted an in camera hearing and found there was no Pitchess discovery evidence to give to defense counsel as to Novelich.
If the Pitchess motion was granted as to Novelich, it should also have been granted as to Sprengel, a source of Novelichs information. Upon reversal and remand, we direct the trial court to conduct a Pitchess hearing as to Sprengel (see People v. Mooc (2001) 26 Cal.4th 1216 regarding the procedure to be followed.)
3. We need not reach appellants other contentions.
Appellants other issues are not likely to recur upon retrial, if any, so we need not reach them in light of the reversal for instructional error.
DISPOSITION
The judgment is reversed. Upon remand, the trial court is directed to conduct a Pitchess hearing as to Deputy Sprengel.
We concur: RUBIN, J., BOLAND, J.