People v. Smith, Cr. 30486

CourtCalifornia Court of Appeals
Writing for the CourtJEFFERSON; KINGSLEY; FILES
PartiesThe PEOPLE, Plaintiff and Respondent, v. Sam Roger SMITH, Defendant and Appellant.
Docket NumberCr. 30486
Decision Date15 March 1978

Page 330

144 Cal.Rptr. 330
78 Cal.App.3d 698
The PEOPLE, Plaintiff and Respondent,
v.
Sam Roger SMITH, Defendant and Appellant.
Cr. 30486.
Court of Appeal, Second District, Division 4, California.
March 15, 1978.
As Modified March 29, 1978.
Hearing Denied May 11, 1978.

[78 Cal.App.3d 702]

Page 332

Frank Morales, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Stephen M. Kaufman, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

By information, defendant was charged with the offense of burglary committed on August 31, 1976, in violation of Penal Code section 459. It was alleged that, on the date in question, defendant entered the apartment occupied by Eva Operskalski with the intent to commit larceny. The information was subsequently amended to add the allegation after the phrase "with the intent to commit larceny" the words "and or assault by means likely to produce great bodily injury." Defendant entered a plea of not guilty. Trial was by jury, with the jury finding defendant guilty of burglary and finding the burglary to be burglary of the first degree. Defendant's motion for new trial was denied, proceedings were suspended, and defendant was placed on probation for a period of three years under specified terms and conditions. Defendant has appealed from the judgment of conviction.

On August 31, 1976, Eva Operskalski returned to her apartment at about 10:30 p. m. She lived in one of eight units in an apartment complex at 1418 Colby in West Los Angeles. Eva lived alone.

After talking on the telephone and showering, Eva went into her kitchen, where she peeled some fruit. After doing this she proceeded to her bedroom. Before entering the bedroom, she noticed that the bedroom door was at an odd angle and not the way she left it. She pushed the door, expecting it to go back against the wall, but the door did not give. At that moment a man stepped from behind the door with a small knife or some other hard object in his left hand. He was about three feet from Eva. She looked straight in his face, screamed, and ran out of the front door of her apartment. She recognized the intruder as the defendant, who was a resident of the apartment complex. Although there was no light on in the bedroom, the light was on in the hall of Eva's apartment so that she was able to recognize the intruder whom she faced at her bedroom door.

[78 Cal.App.3d 703] When Eva returned to her bedroom with the police, the intruder was gone. An inspection of the apartment established that no property was missing. An inspection of Eva's bedroom revealed that one of two windows which she had left open only about two inches had been opened all the way. A screen on the window had been bent and removed and a chair was found at the foot of the window on the outside of the building which would enable a person to gain access to the bedroom through the window.

Several tenants came out of their apartments upon hearing Eva's screams as she ran from her apartment. Approximately 30 to 40 seconds after Eva's screams, George Centeno, one of the tenants in the apartment complex, observed defendant emerge from behind the apartment complex on the same side as Eva's bedroom window. Defendant walked towards George and then walked up the stairs into his own apartment. Defendant was wearing light powder blue pajama pants and a white pullover shirt.

Approximately five to ten minutes later, defendant emerged from his apartment wearing different clothes a sports shirt and cut-off jeans.

Defendant's defense was an alibi. Defendant attacks the judgment on two grounds. One ground urged for reversal is that the evidence was insufficient to sustain a conviction for burglary. The second ground urged is that several errors were committed with respect to the court's instructions.

I

Sufficiency of the Evidence to Support Defendant's Conviction of Burglary

In contending that the evidence was insufficient to support a conviction for burglary,

Page 333

defendant directs his attack upon the issue of defendant's intent to commit theft or to commit an assault by means of force likely to produce great bodily injury. Defendant argues that the evidence is insufficient to establish the necessary felonious intent to steal because there was no taking of any property from Eva or from her apartment, or any attempt to take any property.

With respect to the evidence regarding an intent to commit an assault by means of force likely to produce great bodily injury, defendant points [78 Cal.App.3d 704] out that the evidence simply shows defendant's presence in the victim's apartment with a knife or some object in his hand and that defendant made no movement toward the victim which could be construed as an attempt to harm her. Defendant asserts that, in the absence of some such aggressive action, it would be speculative to draw an inference that defendant intended to commit an assault by means of force likely to produce great bodily injury.

This contention of defendant is lacking in merit. It is true that the key question in issue here is defendant's "intent" at the time of his entry into the victim's apartment, and such intent, as a mental fact, must usually be proved by circumstantial evidence. "(S)uch intent must usually be inferred from all the facts and circumstances disclosed by the evidence, rarely being directly provable." People v. Matson (1974) 13 Cal.3d 35, 41, 117 Cal.Rptr. 664, 668, 528 P.2d 752, 756.) In Matson, the court held that evidence that the defendant entered a female victim's apartment surreptitiously, hid in her bathroom with the lights out, and then denied under oath that he had done so was sufficient to support a finding of entry with intent to rape.

In the case at bench, although we do not have denial testimony from defendant such as appeared in Matson, we have the factor that defendant was armed with a knife or other object of substance. (See People v. Shepardson (1967) 251 Cal.App.2d 33, 58 Cal.Rptr. 809.) The fact that no crime has been committed following entry into a structure does not preclude a finding of a felonious intent upon entry. (People v. Moody (1976) 59 Cal.App.3d 357, 131 Cal.Rptr. 923.) Any variety of circumstances may be sufficient to establish the necessary felonious intent. Thus, it has been held that "an intent to commit theft at the time of entry may be inferred from flight from the premises." (Moody, supra, 59 Cal.App.3d 357, 363, 131 Cal.Rptr. 923, 927; see People v. Martin (1969) 275 Cal.App.2d 334, 79 Cal.Rptr. 769.) "When the evidence justifies a reasonable inference of felonious intent, the verdict may not be disturbed on appeal." (Matson, supra, 13 Cal.3d 35, 41, 117 Cal.Rptr. 664, 668, 528 P.2d 752, 756.)

II

The Validity of the Court's Instructions Regarding Specific Intent

One contention made by defendant is that the trial court gave misleading and ambiguous instructions regarding the necessary specific [78 Cal.App.3d 705] intent for the offense of burglary. Defendant asserts that as a result of the instructions regarding specific intent, the jury was not told that defendant could be convicted of burglary only if the evidence established that, upon entry into Eva's apartment, he had the specific intent to commit an assault by means of force likely to produce great bodily injury.

The trial judge gave CALJIC Instruction No. 14.50 as follows: "Every person who enters any structure of the type shown by the evidence in this case, with the specific intent to steal, take and carry away the personal property of another of any value with the specific intent to deprive the owner permanently of his property or to commit an assault by means likely to produce great bodily injury, each a felony, is guilty of burglary. (P) The essence of a burglary is entering such a place with such specific intent, and the crime of burglary is complete as soon as the entry is made, regardless of whether the intent thereafter is carried out."

Defendant asserts that CALJIC Instruction No. 14.50 is so ambiguously worded

Page 334

that a jury could interpret the instruction as not requiring a specific intent to commit the offense of an assault by means likely to produce great bodily injury, but only a specific intent to steal. Defendant asserts that this ambiguity in CALJIC Instruction No. 14.50 is not cured by the fact that the trial court also gave CALJIC Instruction No. 14.59, which reads: "If you agree unanimously that defendant made an entry with the specific intent to steal or to commit an assault by means likely to produce great bodily injury, a felony, you should find the defendant guilty, and you are not required to agree on which particular crime the defendant intended...

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37 practice notes
  • People v. Schade, No. H009896
    • United States
    • California Court of Appeals
    • June 15, 1994
    ...(People v. Burns, supra, 88 Cal.App.2d 867, 873-875, 200 P.2d 134 ["traumatic condition"]; People [25 Cal.App.4th 1555] v. Smith (1978) 78 Cal.App.3d 698, 710, 144 Cal.Rptr. 330 ["assault"]; People v. McElheny (1982) 137 Cal.App.3d 396, 403, 187 Cal.Rptr. 39 ["assault"]; see also CALJIC No.......
  • People v. Hughes, No. S017869.
    • United States
    • United States State Supreme Court (California)
    • January 28, 2002
    ...563, 119 Cal.Rptr. 210, 531 P.2d 778; People v. May (1989) 213 Cal.App.3d 118, 129, 261 Cal.Rptr. 502 (May); People v. Smith (1978) 78 Cal.App.3d 698, 708-711, 144 Cal. Rptr. 330.) Indeed, at the time of trial, the Use Note to CALJIC No. 14.50—then the standard instruction for burglary—admo......
  • People v. Friend, No. S027264.
    • United States
    • United States State Supreme Court (California)
    • July 20, 2009
    ...an element of the offense." (5 Witkin & Epstein, Cal.Criminal Law, supra, Criminal Trial, § 634, p. 907, citing People v. Smith (1978) 78 Cal.App.3d 698, 710, 144 Cal.Rptr. 330.) We have observed that "special circumstances are sui generis—neither a crime, an enhancement, nor a sentencing f......
  • People v. Beach, Cr. 43047
    • United States
    • California Court of Appeals
    • September 30, 1983
    ...on another point in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1; People v. Smith (1978) 78 Cal.App.3d 698, 709, 144 Cal.Rptr. 330.) We note, however, that "[f]ailure to give such an instruction over objection does not require reversal ... since the ......
  • Request a trial to view additional results
37 cases
  • People v. Schade, No. H009896
    • United States
    • California Court of Appeals
    • June 15, 1994
    ...(People v. Burns, supra, 88 Cal.App.2d 867, 873-875, 200 P.2d 134 ["traumatic condition"]; People [25 Cal.App.4th 1555] v. Smith (1978) 78 Cal.App.3d 698, 710, 144 Cal.Rptr. 330 ["assault"]; People v. McElheny (1982) 137 Cal.App.3d 396, 403, 187 Cal.Rptr. 39 ["assault"]; see also CALJIC No.......
  • People v. Hughes, No. S017869.
    • United States
    • United States State Supreme Court (California)
    • January 28, 2002
    ...563, 119 Cal.Rptr. 210, 531 P.2d 778; People v. May (1989) 213 Cal.App.3d 118, 129, 261 Cal.Rptr. 502 (May); People v. Smith (1978) 78 Cal.App.3d 698, 708-711, 144 Cal. Rptr. 330.) Indeed, at the time of trial, the Use Note to CALJIC No. 14.50—then the standard instruction for burglary—admo......
  • People v. Friend, No. S027264.
    • United States
    • United States State Supreme Court (California)
    • July 20, 2009
    ...an element of the offense." (5 Witkin & Epstein, Cal.Criminal Law, supra, Criminal Trial, § 634, p. 907, citing People v. Smith (1978) 78 Cal.App.3d 698, 710, 144 Cal.Rptr. 330.) We have observed that "special circumstances are sui generis—neither a crime, an enhancement, nor a sentencing f......
  • People v. Beach, Cr. 43047
    • United States
    • California Court of Appeals
    • September 30, 1983
    ...on another point in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1; People v. Smith (1978) 78 Cal.App.3d 698, 709, 144 Cal.Rptr. 330.) We note, however, that "[f]ailure to give such an instruction over objection does not require reversal ... since the ......
  • Request a trial to view additional results

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