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 Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Cuahutemoc Sanchez VALENCIA, Defendant and Appellant.

103 Cal.Rptr.2d 142

86 Cal.App.4th 201

The PEOPLE, Plaintiff and Respondent, v. Cuahutemoc Sanchez VALENCIA, Defendant and Appellant.

No. G023666.

Court of Appeal, Fourth District, Division 3.

January 12, 2001.

Review Granted May 16, 2001.

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.

OPINION

CROSBY, J.

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.

I

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.

II

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: "Just as I explained to you that the burden is on the prosecution to prove to you the events beyond a reasonable doubt, and that the charging document is not evidence in this case, also the not guilty [plea] is not evidence in this case. [¶] The defendant has a constitutional right not to be compelled to be a witness against himself in a trial. If the defendant chooses to testify, you must judge his credibility under the same standard as you would any other witness. [¶] Any of you have any problems with that? [¶] However, if the defendant chooses not to testify, the law requires, and you will take an oath to uphold the law, that you must not in any way consider that either mentally or overtly in your discussions. [¶] Any of you have problems with that? [¶] Now, just as I told you that the charging document is not evidence, the not guilty plea is not evidence. A not guilty plea is not synonymous with a defendant waiving his right under the Fifth Amendment, getting up on the stand and saying I didn't do it. A not guilty plea is synonymous with I want a trial." (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, "And he's not. It does not place any evidence before the jury of that." 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.

III

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, "Any kind of entry, partial or complete, will satisfy the element of entry. The entry may be made by any part of the body or by the use of an instrument or tool. In order for there to have been an entry, a part of the defendant's body or some instrument, tool or other object under his control must have penetrated the area inside where the screen was normally affixed in the window frame in question." (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: "[The] bedroom window ... consisted] of two panels, each three feet wide and four feet high, sitting three feet above the ground. Only one of the panels could be opened, by sliding it horizontally. The frames of both panels and the window screen were aluminum and rested within a larger aluminum frame that sat inside the wall. The window screen rested in a slot one-quarter inch from the window and did not have any protuberances to facilitate its removal from the exterior of the apartment. Between the time of the incident and trial, [the victim] attempted to remove the screen from outside her apartment; she was successful only by sliding a screwdriver under the screen and lifting it outward. There was no evidence defendant touched [her] window or crossed the boundary formed by the window into [her] bedroom." (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: "No California authority has considered whether the penetration of a window screen, without penetration of the plane formed by the window beyond, constitutes an entry within the meaning of section 459. Defendant contends the correct analysis to determine whether a burglarious entry has occurred is whether the `air space' of a protected structure has been penetrated by a part of the defendant's body or an instrument or tool wielded by him. (See People v. Ravenscroft (1988) 198 Cal. App.3d 639, 643-644, 243 Cal.Rptr. 827 [burglarious entry occurred when defendant penetrated the air space of an automated teller machine (ATM) with a stolen ATM card]; People v. Osegueda [(1984) 210 Cal.Rptr. 182, 163 Cal.App.3d Supp. 25,] 32 [burglarious entry consisted of penetration of air space of a store with a drilling tool].) The `air space' analysis of Ravenscroft and Osegueda does not necessarily lead to the result defendant suggests. Rather, it is reasonable to conclude that a window screen contains the outer boundary of a building's air space, especially when, as here, the window itself was left open." (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., "the ultimate test of whether a burglarious entry has occurred must focus on the protection the owners or inhabitants of a structure reasonably expect. The proper question is whether the nature of a structure's composition is such that a reasonable person would expect some protection from unauthorized intrusions." (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, "when a screen which forms the outer barrier of a protected structure is penetrated, an entry has been made for purposes of the burglary statute. [¶] The purposes of the burglary laws are best served by our holding the penetration of a window screen constitutes entry within the meaning of section 459." (Ibid.)

Although Nible was not directly in issue (indeed the case was only mentioned by the majority in a footnote), the Supreme Court...