People v. Failla

• Decision Date: 16 May 1966
• Docket Number: Cr. 9734
• Citation: 51 Cal.Rptr. 103,414 P.2d 39,64 Cal.2d 560
• Court: California Supreme Court
• Parties: , 414 P.2d 39 The PEOPLE, Plaintiff and Respondent, v. Felice Paul FAILLA, Defendant and Appellant. In Bank

Page 103

51 Cal.Rptr. 103

64 Cal.2d 560, 414 P.2d 39

The PEOPLE, Plaintiff and Respondent, v.Felice Paul FAILLA, Defendant and Appellant.

Cr. 9734.

Supreme Court of California,

In Bank.

May 16, 1966.

Rehearing Denied June 8, 1966.

Felice Paul Failla, in pro. per., Albert C. Garber, Los Angeles, under appointment by the Supreme Court, Minsky, Garber & Rudof and J. M. Groshan, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Paul N. Wenger, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment convicting him, upon jury verdicts, of five counts of first degree burglary (Pen.Code, § 459) and one count of simple kidnaping (Pen.Code, § 207).

The facts of the alleged offenses need not be related in great detail.Counts I through V charged defendant with five burglaries arising out of nighttime entries into the apartments of five different female victims 'with the intent * * * to commit a felony and theft'; County VI, kidnaping, was predicated on an incident occurring in the course of the burglary charged in Count II.In summary, the evidence showed that defendant entered each apartment, awoke the victim, and threatened her into silence.On Count I there was evidence tending to show that defendant intended to commit an act of oral copulation in violation of Penal Code section 288a; but when the victim resisted and told him she was menstruating, defendant masturbated and left.On Count II defendant told the victim he wanted to show her his penis; he did so, and announced his intention to masturbate.A scuffle ensued, defendant struck the victim with his fist, and left.On Count III defendant told the victim, 'I want you to play with me'; he took her hand and forced her to masturbate him, then left.On Count IV defendant told the victim he did not want to have intercourse with her but just wanted to kiss her; he put his hand on her private parts, and left when she began screaming.On Count V defendant appeared on the victim's windowsill clad only in underwear, and said, 'I want you'; she screamed and he left.

The court instructed the jury in the language of the statute(Pen.Code, § 459) that one who enters an apartment with intent to commit theft 'or any felony' is guilty of burglary; a second instruction likewise told the jury that a necessary element of burglary is a specific intent to commit theft 'or any felony.'No other instructions on burglary were requested or given.

The court committed prejudicial error in failing to give a further instruction on its own motion defining 'felony' and advising the jury which acts the defendant, upon entry, may have intended to commit would amount to felonies.In People v. Chavez(1951)37 Cal.2d 656, 668, 234 P.2d 632, 639, we clearly intimated that on a proper occasion it is error to fail to define for the jury the acts which, if intended by the defendant, will transform an entry into a burglary.No error was found in the circumstances of that case because 'There was no evidence tending to prove that, when Chavez entered the house, he intended to commit any felony other than rape and murder.Both were defined by the court, and an instruction concerning other crimes would have had no evidentiary basis.'In People v. Corral(1943)60 Cal.App.2d 66, 72, 140 P.2d 172, 175, the jury was instructed on burglary in the terms of the statute; in rejecting an argument that a further instruction should have been given defining the different kinds of conduct proscribed as 'theft' in California (Pen.Code, § 484), the court reasoned: 'It may well be that in some cases of burglary such an argument would be well taken, but this is not one of them.Only one sort of theft--larceny--was indicated by the evidence, and the showing of defendant's intent to commit that crime is so clear that we do not see how the jury could have had any doubt about it, or misunderstood the instruction.(Citation.)Even if such an instruction should properly have been given here, its absence has not resulted in a miscarriage of justice.'But 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.

This rule is applicable to the case at bar.Since defendant made no admissions or confessions and relied on a defense of alibi, on each burglary count the jury was required to find his intent upon entry circumstantially from his conduct and statements after entry.But on the evidence presented such conduct and statements remained ambiguous: they were subject to an inference not only that defendant intended to commit one or more felonies (e.g., oral copulation or felonious assault), but also intended to commit one or more misdemeanors (e.g., indecent exposure or battery) or acts which are not crimes (e.g., masturbation).We cannot assume that the jury, uninstructed on this essential matter, knew the refined statutory distinctions between the foregoing types of conduct.Rather, on the facts of this case the jury could have found that the defendant's intent upon entry was to expose himself or force his victim to masturbate him, and, on the erroneous belief that these constituted felonies, could well have found the necessary 'felonious' intent therein to warrant a conviction of burglary.

The general rule provides that in defining the elements of a crime it is enough for the court to instruct in the language of the statute when the defendant fails to request an amplification thereof.(People v. Reed(1952)38 Cal.2d 423, 430, 240 P.2d 590.)But that rule is always subject to the qualification that 'An instruction in the language of a statute is proper only if the jury would have no difficulty in understanding the statute without guidance from the court.'(People v. Thomas(1945)25 Cal.2d 880, 895, 156 P.2d 7, 15.)The instruction here under discussion declares rules of law that were necessary to the jury's understanding of the charge and were 'closely and openly connected with the facts of the case before the court,' and hence should have been given by the court on its own motion.(People v. Wade(1959)53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 692, 348 P.2d 116, 125.)

The People insist that no prejudice is shown from the failure to instruct as indicated above because 'it appeared clear at the trial to all parties concerned' that defendant's intentions at the time of entry 'were bent upon oral copulation.'The facts, however, are otherwise.While there was evidence of such intent on Count I and evidence from which such intent could possibly be inferred on Count IV, the testimony on Counts II, III, and V lent no support to such a theory.The prosecutor appears to have been aware of this deficiency: in his closing argument he submitted an intent of defendant to commit oral copulation on Counts I and IV but did not do so on Counts II, III, and V, leaving the jurors to their own devices with respect to what felonies were allegedly intended in those instances.Moreover, even on Counts I and IV we cannot know whether the jury predicated its verdict of guilty on a finding of an intent of defendant to commit oral copulation or an intent to expose himself and masturbate.The case is thus distinguishable from People v. Chavez(1951)supra, 37 Cal.2d 656, 668, 234 P.2d 632, where the evidence left the jury no such choice.And in further distinction to Chavez, here no instruction was given defining the one felony which it is suggested the defendant did intend upon entry, i.e., oral copulation.

Finally, the People contend that the error in failing to give the instruction in question was not prejudicial as to Counts I and II at least, because on each of the latter there was evidence tending to show that defendant also engaged or attempted to engage in theft upon entering his victim's apartment.The argument is unconvincing.Even if the evidence of a preconceived intent to steal were not as weak as it is, ¹we still could not say with any confidence that on Counts I and II the jury found the requisite burglarious intent in defendant's larcenous conduct rather than in his undifferentiated sexual misbehavior.Nor does the evidence show a defined pattern in which defendant rifled his victims' purses before entering their bedrooms.On Counts III and IV defendant apparently entered the apartments without waking his victims, yet there was no evidence that he committed or attempted to commit theft before pursuing his sexual purposes; and on Count V defendant was frightened away in the very act of entering.Throughout the trial, moreover, the prosecutor stressed defendant's sexual intent and activities, and 'There is no reason why we should treat this evidence as any less 'crucial' than the prosecutor--and so presumably the jury--treated it.'(People v. Cruz(1964)61 Cal.2d 861, 868, 40 Cal.Rptr. 841, 845, 395 P.2d 889, 893.)

We have not overlooked the fact that defense counsel'conceded' in his arguments to the jury that whoever entered the apartments involved here was guilty of burglary.From the context the jury must have correctly understood that the concession was made for the limited purpose of reinforcing the chosen defense of alibi.For example, defense counsel told the jury that 'we must assume that everything that the girls (i.e., the victims) say in regard to the acts of the intruder was true.For our purposes, it is true.'(Italics added.)Once the...