Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR67864
BLEASE , Acting P. J.
A jury convicted defendant John Ray Stewart of second degree commercial burglary (Pen. Code § 459) and grand theft (§ 487, subd. (a)) after hearing evidence that he and three codefendants stole auto parts from a wrecking yard. After the verdicts were rendered, defendant informed the trial court he wanted to fire his attorney.
References to an undesignated section are to the Penal Code.
Defendant argues the trial court erred because it did not give him a Marsden hearing. Defendant also argues the jury was incorrectly instructed on the elements of second degree burglary when it was not instructed on the statutory definition of a “cargo container.” Finally, defendant argues the imposition of the upper term of three years for second degree burglary violated his right to have the jury determine facts that increased his sentence beyond the statutory maximum in violation of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).)
People v. Marsden (1970) 2 Cal.3d 118.
We shall conclude that the trial court was not required to inquire into defendant’s reasons for wanting to fire his attorney because defendant did not imply by his statement that he had received ineffective assistance of counsel. We shall reverse defendant’s conviction for second degree burglary because the jury was not instructed, and no evidence was presented, as to every element of the offense. Because the trial court imposed the upper term, which it stayed, based on facts not tried to a jury, we shall affirm the conviction for grand theft but remand for resentencing. (§ 654.)
FACTUAL AND PROCEDURAL BACKGROUND
All-Star Auto Recycling is an auto dismantling business located in Corning, California. The business stores car parts, including rims and catalytic converters, in an overseas container and a semi-truck/trailer on its property. The property is fenced, and the containers are padlocked. Evidence was presented that defendant, Sean Pelton, Lorenzo Thomas, and Jerome Solomon cut the locks on the containers and took tire rims, wheels, and catalytic converters, valued at more than $400.00.
Following the jury verdict on both charges (second degree burglary and grand theft) defendant asked the trial court, “Can I have another attorney? Can I fire my attorney?” The trial court responded by addressing defendant’s trial counsel, and the following exchange ensued.
“[The Court]: Mr. Hilligan, I just heard your client say he wanted to fire you. Mr. Stewart, you don’t wish Mr. Hilligan to be your attorney?
“THE DEFENDANT: No, sir, I do not.
“THE COURT: Do you want to hire your own attorney, sir?
“THE DEFENDANT: Yes, I would like to.
“THE COURT: How much time is it going to take you to do that?
“THE DEFENDANT: I don’t know. I have to go back and get on the phone.”
After discussing whether defendant would waive time for sentencing, the court told defendant, “whoever you hire, you tell them to be in this court March 16th at 8:30.” The sentencing hearing was held on March 16, 2006. Ronald McIver made a special appearance on behalf of defendant’s trial counsel, Thomas Hilligan. The trial court sentenced defendant to the upper term of three years on the second degree burglary count and the upper term of three years on the grand theft count, but stayed that sentence pursuant to section 654.
DISCUSSION
I
Failure to Conduct Marsden Hearing
Defendant argues the trial court erred when it failed to inquire into the reasons for his desire to discharge his appointed counsel and retain a different attorney. We disagree.
“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance.” (People v. Crandell (1988) 46 Cal.3d 833, 854, disapproved on another point in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) When a defendant requests new counsel, “he necessarily indicates some dissatisfaction with the attorney who has been representing him.” (People v. Molina (1977) 74 Cal.App.3d 544, 548-549 (Molina).) However, the trial court’s duty to inquire is not triggered unless, “defendant asserts directly or by implication that his counsel's performance has been so inadequate as to deny him his constitutional right to effective counsel.” (Ibid.) In Molina, the court held that the defendant had not triggered the trial court’s duty to inquire where he stated only that he wished to substitute private counsel for his public defender and needed a continuance to find a lawyer. (Ibid.)
Defendant argues we should not find Molina controlling under the circumstances here because here defendant, himself, rather than his attorney, brought up the issue. We are not persuaded. When defendant made the request he was represented by trial counsel, who could have clarified any request. Moreover, the request was made after the verdicts were rendered and defendant had not previously indicated any concern regarding the competence of his trial counsel. The trial court had no duty of inquiry under these circumstances.
II
Burglary Instruction
Count one of the information charged defendant had “unlawfully enter[ed] a commercial building occupied by All Star Auto Wrecking with the intent to commit larceny and any felony.” Section 459 provides in pertinent part that “[e]very person who enters any . . . shop, warehouse, store . . . or other building, . . . railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” Section 458 defines “cargo container” for purposes of burglary as “a receptacle with all of the following characteristics: [¶] (a) [o]f a permanent character and accordingly strong enough to be suitable for repeated use[;] [¶] (b) [s]pecially designed to facilitate the carriage of goods, by one or more modes of transport, one of which shall be by vessels, without intermediate reloading[;] [¶] (c) [f]itted with devices permitting its ready handling, particularly its transfer from one mode of transport to another[;] [¶] (d) [s]o designed to be easy to fill and empty[; and] [¶] (e) [h]aving a cubic displacement of 1,000 cubic feet or more.”
The trial court instructed the jury on burglary as follows:
“The Defendant is charged in Count 1 with burglary. To prove the Defendant is guilty of this crime, the People must prove that, number one, the Defendant entered a locked or sealed cargo container; and two, when he entered, he intended to commit theft. . . .”
Defendant argues the jury was instructed that he could be found guilty of burglary if the jury found he entered a cargo container with the intention of committing theft, but it was not instructed as to the statutory requirements of a cargo container for purposes of the burglary statute, nor was any evidence introduced as to whether the container had a cubic displacement of 1,000 cubic feet or more or whether it was fitted with devices permitting its ready handling. The People do not contend there was any evidence as to the two challenged elements of a cargo container, and concede that if defendant were being prosecuted for burglary of a cargo container being used to transport cargo, proof of the elements listed in section 458 would be required. However, they argue that because the cargo containers in question were being used as storage buildings, the containers may be considered buildings for purposes of the burglary statute. They argue that in California, a building for purposes of the burglary statute is any structure enclosed by walls and covered by a roof.
We disagree with the People’s claim that defendant’s counsel made any sort of concession that the containers were buildings for purposes of the statute. Defense counsel told the jury: “We are dealing with sealed or locked containers. These are structures under the law, but because of their nature, the law requires that they be sealed or locked.” Because section 459 requires cargo containers, but not buildings, to be locked or sealed, counsel’s statements evidence no intent to concede the containers were buildings for purposes of the statute.
We agree that the meaning of a “building” for purposes of the burglary statute is to be broadly construed. (People v. Brooks (1982) 133 Cal.App.3d 200, 205.) The problem here is that the jury was not instructed that it had to find defendant entered a “building,” but that it had to find he entered a “locked or sealed cargo container,” and a “cargo container” has specific requirements under the statute.
Section 459 specifically lists a “locked or sealed cargo container” as being the subject of burglary. It also lists “other building[s]” that are the subject of burglary. The fact that cargo containers are listed separately from buildings indicates the Legislature distinguished between cargo containers and buildings, and did not consider a cargo container to be a building. Those structures that are ordinarily considered “buildings,” i.e., “any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, [or] outhouse . . .” are listed before “other building” and the position of the term “other building” indicates the term is intended to define, encompass, and expand upon the preceding list. On the other hand, those structures that are not ordinarily considered “buildings,” i.e., “tent, vessel, . . . floating home, . . . , railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, . . . , any house car, . . . , inhabited camper, . . . , vehicle . . , when the doors are locked, aircraft . . . , or mine or any underground portion thereof . . .” are listed after “other building.” The placement of these in the statutory language indicates they are covered by the burglary statute in addition to buildings. We must conclude that for the purposes of the burglary statute, a cargo container is not a building.
Section 459 states in full: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.”
Since no evidence was presented as to at least two of the requirements for a “cargo container,” and the jury was not instructed as to each element of the burglary of a “cargo container,” we must reverse the burglary conviction. We review the record in the light most favorable to the judgment to determine whether there was substantial evidence from which a reasonable trier of fact could have found defendant guilty of burglary of a cargo container beyond a reasonable doubt. (See People v. Johnson (1980) 26 Cal.3d 557, 562.) We do not find substantial evidence to support the conviction for second degree burglary.
III
Imposition of Upper Term
Defendant argues the imposition of the upper term of three years violated his constitutional right to have the jury find every fact necessary for the imposition of the upper term, pursuant to Blakely and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. We agree.
The trial court imposed the upper term for both the burglary and grand theft counts, but stayed the sentence for grand theft pursuant to section 654. The trial court based the imposition of the upper term on the aggravating factors set forth in the probation report. These were: (1) defendant was in a position of leadership, (2) defendant tried to dissuade one of his companions from cooperating with investigators, (3) the crime demonstrated criminal sophistication and planning, and (4) defendant was on felony probation at the time he committed the offense.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455] (Apprendi), the United States Supreme court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The high court extended this rule to California’s Determinate Sentencing Law in Cunningham v. California, supra, 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), where it held that a defendant’s Sixth and Fourteenth Amendment right to a jury trial was violated when a judge imposed an upper term sentence based on the judge’s, rather than the jury’s, finding of aggravating circumstances. The court held that the middle term sentence is the maximum sentence a judge may impose unless the facts supporting the aggravating circumstances are found true by a jury. (Id. at p. ___ [166 L.Ed.2d at p. 876].) In California and elsewhere, courts have interpreted Apprendi to mean that, not only is no jury trial required as to the precise fact of a prior conviction, but also no right to jury trial exists on matters more broadly described as recidivism. (People v. McGee (2006) 38 Cal.4th 682, 700-709 and cases cited.)
In the present case one of the four factors, defendant’s commission of the crime while on felony probation, was related to recidivism. While a single factor in aggravation is sufficient to render a defendant eligible for the upper term (People v. Osband (1996) 13 Cal.4th 622, 728-729), we cannot say beyond a reasonable doubt that the court would have sentenced defendant to the upper term of three years for grand theft based solely on its finding that defendant was on felony probation at the time the current offense was committed.
Grand theft of personal property is punishable either as a felony or a misdemeanor. (§ 489.) Since the trial court sentenced defendant to three years (stayed) in state prison on this count, it determined defendant should be punished for this offense as a felony. The sentence range is set forth in section 18 as 16 months, two or three years. We will therefore vacate the sentence and remand to the trial court for resentencing on the conviction for grand theft.
DISPOSITION
The judgment of conviction for second degree burglary is reversed. The stay as to count two, grand theft, is lifted and defendant’s sentence as to that count is vacated and remanded to the trial court for resentencing in accordance with the views expressed herein. In all other respects the judgment is affirmed.
We concur: DAVIS , J., RAYE , J.