Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. LF008181A, LF007863A
BUTZ , J.
A jury convicted defendant David Schmidt of first degree residential burglary (Pen. Code, § 459) and attempted indecent exposure (§§ 664, 314, subd. 1) arising out of an incident in March 2005. In the midst of deliberations and in response to a question from the jury, the trial court told the jury that defendant could be found guilty of burglary by intending to commit the felony of attempted indecent exposure. Because the crime of attempted indecent exposure is a misdemeanor and not a felony, defendant contends the court gave a prejudicially flawed instruction. We agree and shall reverse and remand with directions.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2005, 17-year-old “M.D.” lived with her mother, stepfather and sister at their house in Lodi. When M.D. left for school shortly before 7:00 a.m., she locked the door behind her. She returned home from school at 11:00 a.m., which was unusual for her. As she entered through the front door, she saw a naked man, whom she did not know and later identified as defendant, come from the living room and run up the stairs. Defendant was holding a pair of black panties over his crotch, shielding his penis. Defendant stumbled as he climbed the stairs and M.D. caught a glimpse of his buttocks.
Believing she had caught her sister in the act with someone, M.D. called out her sister’s name, Marissa. Defendant replied “Mike?” and M.D. answered, “No.” M.D. could see defendant at the top of the stairs putting on clothes. Defendant began walking down the stairs in a normal fashion and faced M.D. directly. As he reached the bottom of the stairs, defendant stopped, and started buttoning up his shirt. Defendant looked at M.D. and asked, “[t]his isn’t Mike Kermgard’s house?” M.D. answered, “No.” Defendant then replied, “well, your doors were unlocked, so I thought I could come in.” At that point, M.D. realized there was something wrong, and departed.
According to M.D., a man named “Mike Kemether,” or a similar sounding name, lived around the corner.
Six months prior to this incident, defendant had been placed on probation after pleading guilty to felony indecent exposure in violation of section 314, subdivision 1 (LF007863A).
The same day defendant pleaded guilty to felony indecent exposure in LF007863A, he pleaded guilty to misdemeanor indecent exposure in LM030582A. When the March 2005 incident occurred, defendant was on probation in three misdemeanor cases (LM024549A, LM025133A and LM030582A) and the one felony case (LF007863A).
The amended information charged defendant with annoying or molesting a child, a felony (§ 647.6, subd. (b)--count 1), first degree residential burglary (§ 459--count 2) and indecent exposure with a prior indecent exposure conviction (§ 314, subd. 1--count 3), a felony.
Repeatedly throughout these proceedings, the attorneys and the court refer to “section 314.1.” There is no section 314.1 in the Penal Code. Obviously, the parties are intending to denote section 314, subdivision 1.
The court instructed the jury that it could find defendant guilty of burglary if he entered a building intending to commit the offense of either annoying or molesting a child in violation of section 647.6, subdivision (b), or indecent exposure in violation of section 314, subdivision 1.
The jury was instructed on the elements of both felony indecent exposure and the lesser included offense of misdemeanor indecent exposure. The jury was also given the option of convicting defendant of attempted indecent exposure. (CALCRIM No. 460.)
During deliberations, the jury sent several written inquiries to the court. One of the notes read: “Please clarify whether Penal Code Section 314[, subdivision 1] includes both CALCRIM [No.] 1160 (page 31) AND CALCRIM [No.] 460 (page 32), or can the Burglary charge be proven with either of the two above-referenced Indecent Exposure charges.”
CALCRIM No. 1160 defines “felony indecent exposure.” CALCRIM No. 460 defines “attempted indecent exposure.”
The court responded by first telling the jury that “Penal Code section 314[, subdivision 1], indecent exposure, a felony” was defined in CALCRIM No. 1160 and that “[a]ttempted indecent exposure, a felony, Penal Code section 664/314[, subdivision 1]” was defined in CALCRIM No. 460. The court then amended the burglary instruction, as follows:
“Defendant is charged in count 2 with burglary. To prove that defendant is guilty of this crime, the People must prove that, one, defendant entered a building; and, two, when he entered a building, he intended to commit the offense of annoying or molesting a child, a felony, a violation of Penal Code section 647.6, subdivision (b) or indecent exposure, a felony, a violation of Penal Code section 314[, subdivision 1], or attempted indecent exposure, a felony, a violation of section 664/314[, subdivision 1].
“[¶] . . . [¶]
“A burglary is committed if the defendant entered with the intent to commit annoying or molesting a child, a felony, or indecent exposure, a felony, or attempted indecent exposure, a felony, . . . as long as he entered with the intent to do so.” (Boldface and italics added.)
The trial court gave the jurors written copies of the amended instructions to take into the jury room and told them to replace the existing instructions with the amended ones.
The jury returned with a verdict finding defendant guilty of burglary and guilty of the felony of attempted indecent exposure. The jury could not agree on the charge of annoying or molesting a child, and a mistrial was declared with respect to that count.
Due to the above convictions, defendant’s probation was revoked on three prior misdemeanor probation cases (see fn. 3, ante), and he was sentenced to the upper term of six years in state prison on the burglary count (count 2), a concurrent sentence of one year for the attempted indecent exposure (count 3), and a concurrent two-year sentence on his 2004 conviction for felony indecent exposure (LF007863A).
DISCUSSION
I. Instructional Error
Defendant contends the trial court erred by telling the jury that it could convict him of burglary based on an intent to commit the felony of attempted indecent exposure, a crime that does not exist. (People v. Finley (1994) 26 Cal.App.4th 454, 455-456 (Finley).) We agree.
Burglary is committed when a person enters a house (or other statutorily defined structure) with the intent to commit larceny or any felony. (§ 459.) “‘The gravamen of a charge of burglary is the act of entry which must be accompanied by a felonious intent.’” (People v. Lamica (1969) 274 Cal.App.2d 640, 643, italics added.) Burglary is not committed if the entry is accompanied by an intent to commit one or more misdemeanors. (People v. Cortez (1970) 13 Cal.App.3d 317, 327.)
Subdivision 1 of section 314 is neither an enhancement nor an element of the offense of indecent exposure. Rather, it is a “penalty provision.” A penalty provision does not define a substantive offense, but “‘“focus[es] on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves.”’” (People v. Wallace (2003) 109 Cal.App.4th 1699, 1702, italics added.)
Under section 314, subdivision 1, a misdemeanor indecent exposure conviction is punished as a felony if the defendant has previously been convicted of a section 314 violation. Under section 664, an attempt to commit a felony is ordinarily punishable as a felony as well. However, as the court in Finley held, a defendant with a prior section 314 conviction cannot be convicted of the felony of attempted indecent exposure. The court noted that, although a person can certainly be convicted of attempted indecent exposure, the recidivist provision merely elevates the punishment for repeat offenders and does not create a new substantive offense. Because the recidivist provision of section 314 is silent on the punishment for attempted indecent exposure and because attempted crimes are substantively distinct from completed crimes, Finley held that a conviction for attempted indecent exposure was necessarily a misdemeanor and not a felony. (Finley, supra, 26 Cal.App.4th at pp. 456-458.)
Section 664, subdivision (a) provides that when a crime is attempted, “[i]f the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted.”
Even if the enhanced penalty provision of section 314 could somehow be considered the “functional equivalent” of an element of the offense (see In re McSherry (2007) 157 Cal.App.4th 324, 328), for the crime of attempted indecent exposure to serve as the predicate for a burglary conviction, the jury would have to find that defendant intended to (1) expose himself and (2) have a prior conviction for the same crime, a logical absurdity. (See People v. Bean (1989) 213 Cal.App.3d 639, 642, fn. 4 [“One cannot ‘attempt’ to have been convicted of an offense, or have served a term therefor”].)
The trial court’s “amended” burglary instruction told the jury that it could find defendant guilty of burglary based on the intent to commit the felony of attempted indecent exposure, a nonexistent crime. By instructing the jury it could find defendant guilty of burglary based on the intent to commit a misdemeanor, the court profoundly misdirected the jury on a key element of burglary. The error is obvious, and conceded by the Attorney General.
Although defendant’s trial counsel failed to object to the amended instruction, the omission does not absolve our obligation to determine whether the instruction was prejudicially erroneous. (People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7; § 1259.)
II. Prejudice
Defendant argues the court’s fallacious description of the crime of burglary was structural error affecting the entire integrity of the trial and therefore reversible per se. The Attorney General, without citing a standard for prejudice, asserts that the instruction was harmless under the facts of this case.
For reasons that follow, we conclude that this case falls within the rule of People v. Green (1980) 27 Cal.3d 1, 69 (Green), as modified by People v. Guiton (1993) 4 Cal.4th 1116, 1128-1130 (Guiton).
In Green, the trial court misinstructed the jury as to the asportation element of kidnapping. (Green, supra, 27 Cal.3d at pp. 62-64.) The California Supreme Court identified three distinct segments of asportation upon which the jury could have based its verdict, two of which were insufficient as a matter of law and the third of which was adequate. Green held that “when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (Id. at p. 69.) Although Green stated that “[t]he same rule [of reversal] applies when the defect in the alternate theory is not legal but factual, i.e., when the reviewing court holds the evidence insufficient to support the conviction on that ground (id. at p. 70, italics added), our Supreme Court abandoned this portion of the rule in Guiton.
In Guiton the court, citing Griffin v. United States (1991) 502 U.S. 46, 59-60 [116 L.Ed.2d 371, 381-382] (Griffin), distinguished between an instruction that contains “a mistake about the law, which is subject to the rule generally requiring reversal, and a mistake concerning the weight or the factual import of the evidence.” (Guiton, supra, 4 Cal.4th at p. 1125.) “[T]he Griffin court . . . carefully distinguished between two types of cases involving insufficient evidence: (a) those in which ‘a particular theory of conviction . . . is contrary to law,’ or, phrased slightly differently, cases involving a ‘legally inadequate theory’; and (b) those in which the jury has merely been ‘left the option of relying upon a factually inadequate theory,’ or, also phrased slightly differently, cases in which there was an ‘insufficiency of proof.’ [Citation.] The former type of case is subject to the rule generally requiring reversal; the latter generally does not require reversal if at least one valid theory remains. [Citation.] Among the examples [Griffin] gave for the former category, the one subject to the rule generally requiring reversal, is a case where the inadequate theory ‘fails to come within the statutory definition of the crime.’” (Guiton, at p. 1128, last italics added.)
Guiton therefore construed Green “as applying only to cases of legal insufficiency in the Griffin sense,” summarizing the rule as follows: “If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in Green, the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground.” (Guiton, supra, 4 Cal.4th at pp. 1128-1129.)
The trial court’s modified definition of burglary is one of the clearest examples of a legally erroneous instruction or, as the California Supreme Court later phrased it, a “‘legally incorrect’ theory of the case which, if relied upon by the jury, could not as a matter of law validly support a conviction of the charged offense.” (People v. Harris (1994) 9 Cal.4th 407, 419.) The court did not instruct the jury on a theory that merely found no support in the evidence. The court gave the jurors a definition of the crime that was contrary to law. By allowing the jurors to predicate a burglary conviction upon defendant’s intent to commit a misdemeanor, the trial court led them into an Alice-in-Wonderland world, where the evidence becomes unhinged from legal reality.
Both the state and federal high courts have observed that, unlike an instruction that tenders a correct legal theory but lacks evidentiary support, instructing the jury on a legally incorrect theory raises the presumption that the jury will not be able to find its way through to the truth. “‘Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law--whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.’” (Guiton, supra, 4 Cal.4th at p. 1125, quoting Griffin, supra, 502 U.S. at p. 59 [116 L.Ed.2d at pp. 382-383], italics added.)
Because the court’s instruction was legally incorrect rather than factually unsupported, we are required to reverse the conviction unless the record provides a basis for concluding that the jury “actually” premised its verdict on the legally correct theory. (Guiton, supra, 4 Cal.4th at p. 1129.)
We find no reasoned basis for concluding that defendant’s burglary conviction was predicated on a correct theory rather than the false option presented by the court’s errant “modified” instruction. To the contrary, the record strongly indicates the jury employed the incorrect theory to arrive at its verdict.
The record shows jurors were deadlocked on the burglary count and sent a note to the court asking if defendant could be found guilty based on the predicate crime of attempted indecent exposure, which had been defined to them as a misdemeanor.
The jury was obviously struggling with whether defendant was guilty of a crime, and if so which one. During their deliberations, the jurors sent five separate notes asking for clarification of the instructions.
Notwithstanding the court’s initial correct instruction that attempted indecent exposure was a misdemeanor, it inexplicably reversed course and told the jury that burglary could be based on the underlying felony of attempted indecent exposure. The court therefore not only wrongly recharacterized a misdemeanor as a felony but then told the jury it could use that misdemeanor as the predicate for a burglary conviction.
The jury found defendant guilty of burglary plus the “felony” of attempted indecent exposure. This sequence of events strongly suggests the jurors used a misdemeanor, wrongly redefined for them as a felony, as the predicate for burglary. The burglary conviction was therefore influenced by, if not directly based upon, the defective instruction. The court’s error was “misdirection of the jury” in the most fundamental sense of the term. (Cal. Const., art. VI, § 13.)
The notion endorsed by the erroneous instruction that burglary can be committed by harboring an intent to commit an attempted offense is legal fiction. An attempt requires the specific intent to commit (i.e., accomplish) the target crime. An essential element of an attempted crime is a direct but ineffectual act done toward its commission. (People v. Miller (1935) 2 Cal.2d 527, 530.) One cannot simultaneously harbor an intent to commit and not commit the same act. (See People v. Iniguez (2002) 96 Cal.App.4th 75, 79 [conviction for “conspiracy to commit attempted murder” was a “conclusive legal falsehood”].) For this reason alone, the instruction gravely misled the jury.
The Attorney General argues that the error was harmless because “[t]he facts of this case” show without question that defendant entered the home with the intent to expose himself. However, as we have indicated, an instruction that presents the jury with a false theory of liability cannot be found harmless based on the state of the evidence. (Guiton, supra, 4 Cal.4th at p. 1130.) When the jury is given a legally inadequate path to conviction, the Green/Guiton rule requires reversal unless “‘it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.’” (People v. Perez (2005) 35 Cal.4th 1219, 1233, quoting Guiton, supra, 4 Cal.4th at p. 1130, italics added; accord, People v. Pulido (1997) 15 Cal.4th 713, 727.)
Here, the jury found defendant guilty of burglary and the fictitious crime of “felony attempted indecent exposure,” while declining to find him guilty of either of the charged felonies of child molestation or indecent exposure. Nothing about these verdicts provides a safe basis for concluding that the jury convicted defendant of burglary without relying upon the court’s patently wrong instruction.
DISPOSITION
The judgment is reversed. Defendant’s conviction for attempted indecent exposure (§§ 664/314, subd. 1--count 3, LF008181A) is modified by reducing it from a felony to a misdemeanor. The cause is remanded to the trial court to permit the People to decide whether to retry defendant on the burglary count (count 2). If the People fail to bring defendant to a new trial within 60 days of the remittitur in the trial court (or any extended time limit resulting from defendant’s time waiver [§ 1382, subd. (a)(2)]), or if the People file a written election not to retry defendant, the remittitur shall include a direction to strike the burglary conviction (count 2). (See People v. Jones (1997) 58 Cal.App.4th 693, 720.)
Upon finality of the judgment, the trial court shall resentence defendant accordingly and send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
I concur:
RAYE , J.
Nicholson, Acting P.J., Concurring and Dissenting
OPINION
NICHOLSON, Acting P.J.
As I read the majority’s disposition, it modifies the conviction for attempted indecent exposure to reflect that it is a misdemeanor and affirms that conviction, as modified. I concur in that disposition. As to the reversal of the burglary conviction, I respectfully dissent. Although I agree that the trial court erred by instructing the jury that attempted indecent exposure is a felony, in my view, the error was harmless.
Specifically, I believe the majority’s reasoning falters in the following sentence: “By allowing the jurors to predicate a burglary conviction upon defendant’s intent to commit a misdemeanor, the trial court led them into an Alice-in-Wonderland world, where the evidence becomes unhinged from legal reality.” (Maj. opn. at p. 11.) This statement makes no attempt to determine what the jury would have understood by the instruction and how it would have applied the instruction. (People v. Garza (2005) 35 Cal.4th 866, 882 [“we ask whether it is reasonably probable that a properly instructed jury would have reached a result more favorable to defendant”].)
Burglary is the entry into a building with the intent to commit a felony. (Pen. Code, § 459.) It doesn’t matter whether, after entering, the defendant attempts but fails to commit the intended felony. The entry was still a burglary.
In order to find defendant guilty of burglary, even on the legally erroneous alternative theory that defendant entered the residence intending to commit an attempted indecent exposure, the jury would have been required to find that defendant intended to commit an indecent exposure, which, for him, would have been a felony because of his prior conviction for indecent exposure. (Pen. Code, § 314.)
One cannot attempt to intend to do something. Either you intend to or you do not intend to. Here, the jury, if it purported to rely on the attempted indecent exposure aspect of the instruction, would still have found that defendant intended to commit an indecent exposure when he entered the residence. That intent to commit a felony (even if an attempt is only a misdemeanor) is sufficient to support a conviction for burglary regardless of the erroneous nature of the instruction. I would therefore affirm the judgment as to the burglary conviction.