People v. Rivera

• Decision Date: 05 November 1984
• Docket Number: Cr. 44497
• Citation: 162 Cal.App.3d 141,207 Cal.Rptr. 756
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jess RIVERA, Jr., aka Jess Cabral Rivera, Defendant and Appellant.

Page 756

207 Cal.Rptr. 756

162 Cal.App.3d 141

The PEOPLE, Plaintiff and Respondent, v. Jess RIVERA, Jr., aka Jess Cabral Rivera, Defendant and Appellant.

Cr. 44497.

Court of Appeal, Second District, Division 6, California.

Nov. 5, 1984.

As Modified on Denial of Rehearing Dec. 3, 1984.

Hearing Denied Feb. 14, 1985.

Quin Denvir and Frank O. Bell, Jr., State Public Defenders, under appointment by the Court of Appeal, and James A. Uyeda, Deputy State Public Defender, for defendant and appellant.

John Van de Kamp, Atty. Gen., Andrew D. Amerson and Ernest Martinez, Deputy Attys. Gen., for plaintiff and respondent.

STONE, Presiding Justice.

Jess Rivera, Jr. appeals his conviction of burglary (PEN.CODE, § 459 )¹ after jury trial and the seven-year prison term imposed therefor (two year base term plus five years consecutive for an admitted prior conviction of assault with intent to commit rape ( § 667, subd. (a)). We affirm the judgment of conviction and the sentence.

At approximately 9:20 p.m. on December 26, 1982, one of the residents of an apartment complex in Port Hueneme heard a "commotion upstairs" and told John Martinez, a visitor of another resident, his cousin. Martinez went upstairs to investigate. On the way, he saw a "shadow" move toward the apartment's carport area and then go over a fence. The "shadow" was dressed in dark blue pants, a dark blue jacket and black shoes.

As Martinez returned to his cousin's apartment, he noticed that the door to Dennis Delfo's apartment was ajar. Martinez knew that Delfo was out of the state and concluded that someone had broken into Delfo's apartment. The "shadow" had disappeared.

Martinez attracted the attention of two police officers, who began a search of the complex. One officer saw appellant run from the area near Delfo's apartment toward the carport; both officers gave chase.

Appellant moved in a low crouch through the carport and then ducked down by a car. At the point where he ducked, the officers recovered the items taken from Delfo's apartment. Appellant was wearing dark blue corduroy pants, a blue bathrobe and gloves. The officer testified that appellant exhibited no outward appearance of intoxication.

The kitchen window of Delfo's apartment had been broken; the officer testified that that window was the point of entry. Outside the window, in the soft dirt, the officer noticed a pattern of straight parallel lines and opined that they appeared to be impressions left by someone kneeling in corduroy pants.

Appellant was arrested, waived his rights, and told the officers that he ducked down behind the car because he had some marijuana and was afraid to be caught with it. He said he stashed the marijuana under the tire of the car behind which he ducked. Appellant gave varying accounts of the extent of his intoxication, claiming that he could not remember a lot of what had occurred earlier in the evening. He did explain however that he was wearing gloves because he had taken out some messy garbage: two shopping bags containing wet tamale husks and Christmas wrappings.

No marijuana was found under the tire of the car behind which appellant ducked; no tamale husks or Christmas wrappings were found in the garbage dumpster.

At trial, appellant denied entering Delfo's apartment or taking anything therefrom. He testified that, although he had been drinking beer and had smoked marijuana, he "wasn't stumbling to where [he] didn't know [his] actions." He also stated that even though he might have told the officers he was "blown away on weed," that did not mean that he did not know what was happening. He explained that he ducked to avoid the police because he was on parole and that discovery of the marijuana could have resulted in his return to prison.

I. INSTRUCTIONS REGARDING VOLUNTARY INTOXICATION

Appellant contends that his conviction must be reversed because the jury was instructed first that they should consider his state of intoxication in determining whether he formed the requisite specific intent for the crime of burglary (CALJIC No. 4.21--1981 Rev.) and then, in the next sentence, that voluntary intoxication was no defense and would not relieve him of responsibility for the crime (CALJIC No. 4.20 (4th ed. 1979)).

We agree that CALJIC No. 4.20 should not be given in cases which involve specific intent crimes. (People v. Spencer (1963) 60 Cal.2d 64, 87, 31 Cal.Rptr. 782, 383 P.2d 134.) However, whether the giving of the instruction confuses the jury depends upon the manner and context in which it is given.

Where the court instructs the jury that the general rule is that voluntary intoxication is no defense to a crime and then explains that there is an exception to that general rule which applies to specific intent crimes, there is no danger of confusion. (See, e.g., People v. Kozel (1982) 133 Cal.App.3d 507, 184 Cal.Rptr. 208; People v. Yoder (1979) 100 Cal.App.3d 333, 161 Cal.Rptr. 35; People v. Patterson (1979) 88 Cal.App.3d 742, 152 Cal.Rptr. 183; People v. Asher (1969) 273 Cal.App.2d 876, 78 Cal.Rptr. 885; People v. Conley (1968) 268 Cal.App.2d 47, 73 Cal.Rptr. 673.) In this case, however, the jury was not informed that CALJIC No. 4.21 explained an exception to CALJIC No. 4.20. In the absence of that explanation, we think the giving of two such contradictory instructions constitutes error. (See, e.g., People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370; People v. Spencer (1963) 60 Cal.2d 64, 31 Cal.Rptr. 782, 383 P.2d 134; People v. Ford (1964) 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892.)

However, we fail to see in what manner this error could have prejudiced appellant. He denied entering Delfo's apartment and/or taking any items therefrom. Appellant suggests that his pretrial statements to the officers regarding the extent of his intoxication could have been utilized by counsel to argue that appellant entered the apartment after it had been broken into by someone else and that his intoxication accounted for his failure to remember the entry and also accounted for the unorthodox nature of the items which were taken (a bible, a book and an article on The Shroud of Turin; an old jewelry box containing backgammon pieces and a portable typewriter). However, appellant's own testimony at trial was that he was not so intoxicated that he did not know and/or could not remember what he was doing on the night in question. Accordingly, the error is harmless. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

II. THE ADMISSION OF THE PRIOR FELONY CONVICTION

Appellant next argues that his conviction must be reversed because of the "admission of an irrelevant prior felony conviction to impeach" him. The record reveals that the prior conviction was not admitted for the purpose of impeaching appellant. His own counsel stipulated that the fact of the prior conviction (but not the nature of the offense) could be introduced so that appellant, on direct examination, could explain that he was on parole and that that was the reason he attempted to avoid the police. However, despite the reason for its admission, appellant's prior conviction was used to impeach him: the jury was instructed that they could consider the prior conviction for the purpose of determining appellant's credibility. (CALJIC Nos. 2.20 (4th ed. 1982 pocket pt.) pp. 6-7, and 2.23 (4th ed. 1979).)

It is not necessary to address appellant's constitutional arguments because there was no objection to the instructions regarding credibility. "Normally, a defendant is held to waive the right to appeal alleged errors by failing to make an appropriate objection in the trial court; however, an appellate court may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected. (Pen. Code, §§ 1259, 1469.) The cases equate 'substantial rights' with reversible error, i.e., did the error result in a miscarriage of justice? (Cal.Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)" People v. Arredondo (1975) 52 Cal.App.3d 973, 978, 125 Cal.Rptr. 419.

In this case, even if the instructions were erroneous, we could not find a miscarriage of justice. This was not a close case. The evidence pointed unerringly to appellant as the perpetrator, and contradicted appellant's uncorroborated explanation of his activities. Any alleged error was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.

III. "BURGLARY OF A RESIDENCE"

Appellant argues that the consecutive five year enhancement was illegally imposed because his present conviction was not for a "serious felony." ² His argument goes something like this: (a) He was convicted of second degree burglary. (b) Section 460 provides that burglary of a residence is first degree burglary and that all other burglaries are second degree. Therefore, his second degree burglary conviction cannot be a "serious felony" because sections 667 and 1192.7, subdivision (c) require conviction of "burglary of a residence." (c) The trial court cannot look behind the "least adjudicated elements" of the conviction to determine whether defendant burgled a residence.

We find fault with each stage of this analysis:

a. Appellant's "Second Degree" Burglary Conviction:

Appellant was tried by jury on an information which alleged that he entered an "inhabited dwelling house and apartment ... with the intent to commit larceny ... in the nighttime." The jury found appellant "guilty of a violation of section 459 ... as alleged in the information." For some inexplicable reason, the jury did not expressly find the degree of the crime. Accordingly, appellant received the benefit of section 1157 which mandates that, in the absence of a jury determination regarding degree, "the degree of the crime ... of which the defendant is guilty ... shall be deemed to be of the lesser degree."

There can be no question here that in order to find appellant guilty, the...