People v. Valencia
Decision Date | 12 January 2001 |
Docket Number | No. G023666.,G023666. |
Citation | 86 Cal.App.4th 201,103 Cal.Rptr.2d 142 |
Court | California Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Cuahutemoc Sanchez VALENCIA, Defendant and Appellant. |
Chris Truax, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Crystal L. Bradley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Cuahutemoc Sanchez Valencia of burglary, but we hold he did not "enter" the victim's house when he only removed a window screen and no part of his body passed the closed window beyond. Accordingly, the conviction must be reduced to attempted burglary.
Lee Florea returned to his Santa Ana home around lunchtime on February 4, 1998, to find the screen of his bathroom window on the ground and a bedroom screen slightly askew. There were pry marks the width of a screwdriver head on the bedroom window frame "where a tool had been inserted between the window frame and the sliding part of the window" and what "looked like rub marks from a hand trying to push the [bathroom] window open." The windows remained closed and locked. Florea's neighbor across the street had called 911 after she saw defendant remove the screen and attempt to open the window with a tool. He also tried to open a door and banged a wall in frustration. Police officers found a screwdriver with a bent shank and blade and some black gloves in his pants pocket.
During jury voir dire and while explaining various legal concepts (burden of proof, reasonable doubt), the court sought to convey the idea that neither the charging document nor defendant's not guilty plea were evidence: (Italics added.)
Defense counsel objected a short time later and asked for a mistrial. The gist of her complaint was that the statement violated defendant's constitutional right to remain silent and shifted the burden of proof: "It is in effect telling them he's pleading not guilty, he's not saving to you by pleading not guilty I didn't do it." The court responded, Counsel responded, "But by saying a not guilty plea is [not] saying I didn't do it is basically saying I did commit the crime but I just want my jury trial, that's how it was phrased, I believe that's how it came off to me." The court asked, "You are saying that I told them that the defendant has admitted doing the crime?" Counsel replied, "In a sense, yes, if we could [have the voir dire read back]." Following a readback, the court asked if there were "any additional or ... supplementary comments you wish me to make on that area?" Counsel said, "No."
Assuming defense counsel's silence after the readback was not an acknowledgment that she had overreacted to the court's law lesson, we find no prejudicial error. The jury was instructed defendant was presumed innocent, that the prosecution had the burden of proof, that the defendant had the right not to testify and his silence could not be considered against him. We assume the jury followed these express admonitions; there is no possibility that the jury would have thought it could properly infer guilt from defendant's not guilty plea.
That said, we think regardless whether the court's statement was susceptible to the kind of inference defendant decries (i.e., "maybe I did, maybe I didn't, prove it!"), to say his plea was "synonymous" with "I want a trial" is misleading. It is certainly possible that defendant pleaded not guilty because he was or believed himself to be innocent. He may not have wanted a trial at all. Most importantly, the court's comment was unnecessary, which was reason enough to omit it.
Defendant complains an instruction, drawn from People v. Nible (1988) 200 Cal.App.3d 838, 247 Cal.Rptr. 396, included an impermissible mandatory presumption. The jury was told that in order to prove the crime of burglary (Pen.Code, § 459),1 it must be proved he "entered a dwelling." The jury was further instructed that, (Italics added.) The court rejected a defense instruction that "whether an entry has occurred is whether a reasonable person would believe a window screen provides some protection against unauthorized intrusions."
We agree the instruction was erroneously given to the jury in this case. As a matter of law defendant was guilty only of attempted burglary (we solicited additional briefing on this point). We will explain.
In Nible the defendant removed the screen from an open window: (People v. Nible, supra, 200 Cal. App.3d at pp. 842-843, 247 Cal.Rptr. 396.)
The trial court in Nible instructed the jurors they could find an entry if they believed a part of defendant's body or a tool or instrument used by him penetrated "the area inside where the screen was normally affixed in the window frame in question." (People v. Nible, supra, 200 Cal.App.3d at p. 843, 247 Cal.Rptr. 396.) The appellate panel held the court did not err: (People v. Nible, supra, 200 Cal.App.3d at pp. 843-844, 247 Cal.Rptr. 396, fn. omitted.)
Nible went on to describe a more "comprehensive test ... suggested by the California Supreme Court's analysis in People v. Gauze [(1975) 15 Cal.3d 709, 125 Cal. Rptr. 773, 542 P.2d 1365]," i.e., (People v. Nible, supra, 200 Cal.App.3d at p. 844, 247 Cal. Rptr. 396.) Nible noted that the opening of a screen door or window had satisfied the breaking requirement of traditional burglary statutes: "`In such cases the screen door [or window] is not to be considered as a mere protection against flies, but rather as a permanent part of the dwelling.'" (Id. at p. 845, 247 Cal.Rptr. 396.) Thus, (Ibid.)
Although Nible was not directly in issue (indeed the case was only mentioned by the majority in a footnote), the Supreme Court...
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