Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07NF2437, W. Michael Hayes, Judge.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
O’LEARY, J.
We appointed counsel to represent Jeffrey Alan Williams on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client, but advised the court no issues were found to argue on his behalf. We have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.)
Williams was given 30 days to file a written argument on his own behalf. That period has passed, and we have received no communication from him. Pursuant to Anders v. California (1967) 386 U.S. 738, Williams’ appellate counsel suggests numerous issues: (1) prosecutorial misconduct during argument; (2) erroneous admission of evidence; (3) erroneous denial of Williams’ Penal Code section 1118.1 motion; (4) erroneous response to a jury question; and (5) two instances of instructional error. Finding no error, we affirm the judgment.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
Williams was apprehended by security guard Ricardo Aguirre as he was leaving a vacant store at twilight on July 3, 2007. Aguirre testified that while patrolling the property, he observed an individual moving inside a vacant furniture store within the complex. He described the person as a White male, more or less 5 feet 7 inches, around 175 pounds. He observed the man pulling copper cable out of the building. He also saw a woman with the man. Aguirre entered the building and detained Williams, but the woman escaped. Officer Kyle Brooks responded. Brooks searched Williams and recovered a flashlight and a piece of wire in his front pants pocket. Inside the store, Brooks also observed multiple gauges of electrical wire and spools of wire. The wire found in Williams’ pocket did not match any of the wire observed in the building.
A second officer, Connor Lee, also responded and saw the store’s rear door appeared to have been forced open. Lee also observed tools and wires laying on the ground near the rear door and that wire had been cut out of the walls. There were two bundles of black cable on the floor that had been tied with electrical tape. Lee found tools that are commonly used to break down drywall and/or cut wire near the bundled cables and the electrical panel. A bag containing burglary tools and a AA Kirkland battery was also discovered. The flashlight found in Williams’ pocket contained two AA Kirkland batteries. Other than the brand, no similarity between the batteries in Williams’ flashlight and the battery in the bag was established. No burglary tools were found on Williams. Lee testified used copper wire can be resold for money.
The commercial property manager for the property testified he visited the store after the incident and observed considerable damage. Drywall had been pulled from the walls and wiring was missing. He estimated repairs would cost from $4,000 to $8,000.
Williams was charged with, and convicted by a jury of, felony second degree commercial burglary (§§ 459, 460, subd. (b)), and misdemeanor possession of burglary tools (§ 466). He was placed on three years of probation with various terms and conditions, including a condition he serve 120 days in the Orange County Jail. Williams filed a timely notice of appeal.
DISCUSSION
Williams did not file a supplemental brief suggesting any potentially viable issues on appeal. His counsel, without elaboration, suggests numerous issues. We will discuss each in turn.
Prosecutorial misconduct during argument?
Counsel cites two pages of the clerk’s transcript and multiple pages of the reporter’s transcript for the proposition the prosecutor committed prejudicial misconduct in her closing argument by implying Williams had the burden of proving his innocence. We have reviewed the record and conclude it does not support a finding of prejudicial prosecutorial misconduct. Prosecutorial misconduct will not result in a reversal of the conviction unless it is reasonably probable the result would have been more favorable to the defendant in the absence of the misconduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
Error in admitting prejudicial evidence of copper wire found in Williams’ pocket?
Counsel suggests the court should have excluded the wire found in Williams’ pocket pursuant to Evidence Code section 352. We disagree. On appeal, we review for an abuse of discretion a trial court’s admission of evidence as relevant. (People v. Kipp (2001) 26 Cal.4th 1100, 1123 (Kipp).) Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210; Kipp, supra, 26 Cal.4th at p. 1123.) “‘The test of relevance is whether the evidence tends “‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive.”’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1117.) The wire in Williams’ pocket was relevant because wire was the subject of the theft. Admittedly, the wire found on him did not match any of the wire at the store, but wire is not a common pocket item such as coins, breath mints, or the like. “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” (People v. Karis (1988) 46 Cal.3d 612, 638.) There is nothing in the record to support a finding the prejudicial value of this evidence outweighed its probative value.
Erroneous denial of Williams’ section 1118.1 motion?
“‘The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.”’ [Citation.]... The question ‘is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.’ [Citation.]... The question is one of law, subject to independent review. [Citation.]” (People v. Stevens (2007) 41 Cal.4th 182, 200.)
A review of the record reveals more than adequate evidence, albeit mostly circumstantial, to support the existence of each of the elements of the two charged offenses. “‘“Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.”’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) We find Williams’ section 1118.1 motion was properly denied.
Correct response to jury request for clarification of elements of intent and possession?
During deliberations, the jury sent out a question: “Please clarify theft rule #3. 3) When the defendant took the property he intended it.’ What does ‘intended’ it mean?” The court conferred with counsel, and it was agreed the court would give no further instruction and simply advise the jury to reread the instruction as a whole. Counsel refers our attention to various cases and Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 1800, “Theft by Larceny,” without argument or reasoned analysis. We have reviewed the cases and are not persuaded they support a finding of prejudicial error. (People v. Huggins (2006) 38 Cal.4th 175, 210-211 [court’s response found to be flawed but not prejudicial requiring reversal]; People v. Cummings (1993) 4 Cal.4th 1233, 1312 [conceded erroneous failure to instruct on element of crime not prejudicial]; People v. Beardslee (1991) 53 Cal.3d 68, 85-87 [error, if any, on instruction regarding mental state found to be harmless]; People v. Gonzales (1999) 74 Cal.App.4th 382, 389-391 [error in failing to instruct the jury sua sponte on defense of accident found to be error and reversal required].) Likewise, a review of CALCRIM No. 1800, does not support a finding of prejudicial error. The court’s response to the jury’s inquiry was proper.
Erroneous instruction on aiding and abetting?
The court has a sua sponte duty to instruct the jury on aiding and abetting if the prosecution relies on this theory of culpability. (People v. Beeman (1984) 35 Cal.3d. 547, 560-561.) The record before us does not suggest the prosecution relied on aiding and abetting as a theory of culpability on the burglary charge. Rather, the prosecution relied on Aguirre’s observations of Williams removing the copper cable from the building to establish Williams was the perpetrator of the crime. Defense counsel disputed Aguirre’s testimony and argued Williams was not in the building to commit a burglary, but “just a guy who walked by a vacant building and saw a door open and decided to check out what was going on.” The theory of aiding and abetting was in no way implicated by the evidence in this case, and therefore, the court was not required to so instruct.
Although we have concluded the trial court was not required to instruct the jury on the theory of aiding and abetting, we note it did provide the jury with a portion of the aiding and abetting instructions. Without explanation, the court gave CALCRIM No. 400, “Aiding and Abetting: General Principles,” but failed to give the companion instruction, CALCRIM No. 401, “Aiding and Abetting: Intended Crimes.” We find no prejudice in this misstep. The court did instruct the jury with CALCRIM No. 200, “Duties of Judge and Jury,” in relevant part as follows: “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” We conclude Williams was not prejudiced by the giving of a portion of the aiding and abetting instructions.
Error in failing to instruct on the crime of trespass?
In People v. Birks (1998) 19 Cal.4th 108, 136, our Supreme Court held a criminal defendant does not have “a unilateral entitlement to instructions on lesser offenses [that] are not necessarily included in the charge.” Specifically, in Birks, the court concluded the trial court properly refused defendant’s request for instructions on trespass as a lesser related offense of the charged offense of burglary. (Id. at p. 137.) We discern no error in the court not instructing the jury of the crime of trespass.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.