Opinion
A145873
03-08-2017
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL MENDOZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. Nos. SCN221378 & SCN221830)
I. INTRODUCTION
Rafael Mendoza appeals a judgment following his jury convictions for three counts of second degree burglary (Pen. Code, § 459); one count of receiving stolen property (§ 496, subd. (a)); one count of possession of burglary tools (§ 466); and one count of resisting a peace officer (§ 148, subd. (a)(1)). Mendoza contends his convictions for burglary and possession of burglary tools must be reversed because of prejudicial jury instruction errors. We disagree and therefore affirm the judgment.
Unless otherwise stated, subsequent statutory references are to the Penal Code.
II. STATEMENT OF FACTS
A. The September 2013 Incident
In September 2013, San Francisco Police Sergeant Matt Sullivan was assigned to the undercover plainclothes unit at the department's Central Station. During the two-year period Sullivan was assigned to that unit, his work focused on auto burglaries. He and his team drove around in undercover cars and looked for suspects who were "casing cars" and "looking into car windows."
On the evening of September 26, 2013, at around 9:40 p.m., Sullivan was in his undercover police vehicle driving down 8th Street toward the Hall of Justice when he saw Mendoza standing on the sidewalk next to the passenger window of a silver Acura coupe. Mendoza was bent over, and his head, hands, and the upper portion of his body were inside the car. Sullivan pulled over and parked on the opposite side of the street. He got out of his car and walked toward Mendoza, who then was walking away from the Acura and carrying a backpack. As Sullivan approached, Mendoza sat or knelt on the ground and dug around in the backpack. Sullivan walked past, noting that the window of the Acura was broken and there was glass on the ground. Sullivan turned and looked behind him and saw Mendoza return to the Acura. Sullivan continued to move, hiding behind cars and trying to get different views. From those vantage points, he saw Mendoza inside the Acura, with the car doors closed. Mendoza's head was moving around and it looked like his body was moving as well.
Mendoza got out of the Acura and walked to the corner, looked both ways, and then returned to the car again. Sullivan did not see how Mendoza entered the car, but he could see that Mendoza was back inside. A loud metallic banging noise came from inside the car and then Mendoza's body came out of the right passenger window and he proceeded to walk away. At that point, Sullivan radioed dispatch and requested a patrol vehicle to apprehend Mendoza. When a marked patrol car with lights and siren activated pulled up next to Mendoza, Sullivan saw Mendoza take off running.
At around 9:40 p.m., San Francisco Police Officer John Silvestri and his partner responded to Sullivan's request for a marked unit to come to the scene and detain an auto burglary suspect. Silvestri, who was dressed in his police uniform, got out of the patrol car when he was about 15 feet away from Mendoza and ordered him to stop. Mendoza took off in a "full sprint," dropping a backpack and running down the middle of the street. Silvestri gave chase, continuing to identify himself as a police officer and yell commands for Mendoza to stop. Mendoza was running fast and at one point he tried to climb a fence. Silvestri chased Mendoza for approximately 100 yards and then apprehended him.
When Officer Sullivan arrived at the scene, Mendoza was being placed in handcuffs. Sullivan found a car stereo face plate on the ground near Mendoza, and he seized a screwdriver from the back pocket of Mendoza's pants. Sullivan also took a flashlight from Mendoza's person. Inside Mendoza's backpack the police found a car stereo. Based on his experience investigating automobile burglaries, Sullivan concluded that a flashlight and screwdriver are burglary tools. According to Sullivan, people who break into cars at night use flashlights to see what is inside the cars and screwdrivers "to break car windows and break locks and pry into locks."
According to the trial evidence, the "face plate" is the part of an after-market car stereo that detaches from the system and can be removed to discourage theft. Since the face plate contains all the buttons, the stereo cannot be activated unless the face place is attached to it.
Police contacted Dellea Chew, the owner of the silver Acura. After work that day, at around 5:00 p.m., Chew had parked her car "off of 8th Street on the alley." As was her routine, Chew made sure the windows were up and locked the car. The stereo that she had installed after she bought the car was intact when she left. When Chew returned to her car after the police contacted her, the window had been shattered, the glove box was opened, items from the box were scattered about, and somebody had ripped out the stereo console. Chew identified the console and face plate that police recovered from Mendoza as her property.
B. The January 2014 Incidents
In January 2014, San Francisco Police Officer David Goff was assigned to the plainclothes unit at the department's Southern Station, which covers the South of Market district. Goff and his unit wore plainclothes in order to blend in with civilians as they patrolled the area, did undercover narcotics work, and conducted investigations that regular patrol officers often did not have time to do.
On January 16, 2014, at around 10:30 a.m., Goff was dressed in plainclothes and working near the Hall of Justice when his partner, Officer Brent Reeder, reported that a person was casing vehicles nearby. When Goff went to the location Reeder had provided, he saw Mendoza walking down 7th Street. Goff followed Mendoza as he continued on 7th for several blocks, stopped mid-block and began to look around. Goff stopped at the corner and hid behind a parked car. There was no other foot traffic. The street was lined with parked cars, the passenger side of the vehicles alongside the curb. Mendoza removed his grey sweatshirt, under which he was wearing a burgundy T-shirt. Mendoza continued to look around as he approached a parked Nissan Sentra.
Mendoza faced the passenger side of the car, acting as if it belonged to him and he was going to put a key in the door. He looked around, both left and right and up and down the street. Then he placed both hands on the top of the door frame, grabbed onto something, and began "pulling on the vehicle." Mendoza pulled back and forth on the car multiple times for approximately 10 seconds. A few seconds later, Mendoza made a fist and struck the front passenger window. He looked around again and then leaned forward so that his upper body was inside the car and his feet were still on the sidewalk. He "rifl[ed] around" for about 10-20 seconds, and then exited the car and walked down 7th Street. Goff continued to follow until he reached the Sentra, at which point his partner, Officer Reeder, "took over surveillance from there."
The defense elicited testimony that when Officer Goff called dispatch on January 16, 2014, to report Mendoza's suspicious behavior in connection with the Nissan Sentra, he used the word "594," which is the Penal Code provision for vandalism, rather than "495," which is the burglary statute.
Reeder, the officer who originally notified Goff about Mendoza's suspicious activity, was dressed in plainclothes, sitting on a bike, and trying to blend into the crowd the first time he saw Mendoza on the morning of January 16, 2014, and formulated the opinion that Mendoza was casing cars. When he heard Goff's radio report that Mendoza may have broken into a car, Reeder rode his bike to that location, saw the broken car window and then rode his bike down 7th Street, where he found Mendoza and followed him. While Mendoza was under a freeway overpass, he took off a red shirt under which he wore another shirt, which was purple. When Mendoza looked around, Reeder became concerned that Mendoza saw him, so he tried to hide behind a pillar and then lost sight of Mendoza when he went into a bushy area.
Reeder rode his bicycle around to the other side of that area and found Mendoza again. At that point, Mendoza was walking toward Reeder and wearing the grey sweatshirt and a black hat. Reeder circled around and found Mendoza on Texas Street. Mendoza appeared to be eating from a food tray as he stood between two cars that were parked horizontally facing the curb. One of the cars was a red Toyota truck, with intact windows that were rolled up. Reeder rode by on his bike and became concerned that Mendoza saw him again, so he went to exchange his bike for an unmarked vehicle that was being used by another officer in the area. Reeder then drove back to the location of the red Toyota, where he found Mendoza sitting in the driver's seat of the truck. The truck door was closed, the window completely smashed, and there was glass on the street.
Reeder drove past the Toyota truck and Mendoza's face registered surprise. As Reeder turned his car around, Mendoza got out of the truck and "started sprinting down the hill." Reeder alerted other members of his team and then followed in his car as Mendoza headed back toward the railroad area. Mendoza dropped his backpack and threw some items to the side. Reeder pulled his car up near Mendoza, and said "Police, stop." Mendoza continued to run. When Reeder thought he was in a good position to catch Mendoza, he stopped his car, put it in park and began to open his door. But Mendoza ran toward the car and pushed back on the door with both hands. Then he turned and ran away. Reeder got out of the car and ran after Mendoza. Mendoza dove through what appeared to be a pre-cut hole in a fence leading into a railroad area. Reeder followed, both men fell to the ground, and Reeder was able to tackle and detain Mendoza.
From the area near the fence, police recovered a tarp, a sleeping bag, two screwdrivers, and a car stereo face plate. Along the route where Reeder had chased Mendoza, the police found a black baseball cap and a screwdriver in the middle of the street. Farther down the street they also found a backpack which contained a grey sweatshirt and other clothing; a face plate to a car radio/CD player; and two screwdrivers. They also found an empty food tray on the hood of a car parked adjacent to the Toyota truck.
The police contacted Edward Cekovic, the owner of the Nissan Sentra. When Cekovic parked his car before work that morning, the windows were rolled up, and he locked the doors. When he returned to his car after the police contacted him, the windows were broken and things had been moved around. However, Cekovic did not notice that anything was missing from his car.
Police also contacted the owner of the red Toyota truck, Andrew Pitts. When Pitts parked the truck before going to work that day, the windows were not broken and he locked the doors. When he returned later, the car window had been smashed and it appeared as though somebody had rifled through his belongings. The ashtray had been removed and, although he later found it under the car seat, the change that he kept inside his ashtray was gone. Also, the face plate for his car stereo had been removed and was left on the driver's seat.
C. Trial Proceedings
The incidents described above resulted in a consolidated information charging Mendoza with eight offenses. With respect to the September 2013 incident, Mendoza was charged with felony second degree burglary (count 1); felony receiving stolen property (count 2); misdemeanor possession of burglary tools (count 3); and misdemeanor resisting a peace officer (count 4). For the January 2014 incidents, Mendoza was charged with two counts of felony second degree burglary (counts 5 & 6); misdemeanor possession of burglary tools (count 7); and misdemeanor resisting a peace officer (count 8).
A jury trial was held over five days in the summer of 2014. After all the evidence was presented, the court excused the jury and conferred with counsel regarding jury instructions. That conference was not recorded. Nor do we find any indication that either party formally proposed any specific jury instructions in this case. On the morning of August 12, 2014, before the jury was called into the courtroom to receive the jury instructions, the court stated: "At this point, I just want to put on the record that we have had discussions, and we have a final set of jury instructions." The court asked whether either party objected to any instruction that it was going to give, and both sides responded no. Both counsel also stated that there were no other jury instructions that they wanted but the court had refused to give.
The jury deliberated for approximately one and a half court days, returning their verdicts on the afternoon of August 14, 2014. The jury found Mendoza guilty of all of the charges arising out of the September 2013 incident (counts 1 through 4). Mendoza was also found guilty of the two January 2014 burglaries (counts 5 and 6). However, the jury acquitted him of the charges that he possessed burglary tools and resisted a peace officer on January 16, 2014 (counts 7 & 8).
After finding several sentencing enhancement allegations were true, the trial court struck two enhancements, reduced the conviction for receiving stolen property to a misdemeanor, and sentenced Mendoza to an aggregate term of six years in state prison.
III. DISCUSSION
Mendoza contends that several of his convictions must be reversed because of errors in the jury instructions that he objects to for the first time on appeal.
A. The Duty To Instruct on Principles of Law
"The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense. [Citation.]" (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) However, with respect to matters that do not constitute a " 'general principle of law governing the case,' it is 'defendant's obligation to request any clarifying or amplifying instruction.' [Citation.]" (People v. Estrada (1995) 11 Cal.4th 568, 574.) "A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]" (People v. Lang (1989) 49 Cal.3d 991, 1024.)
" 'Errors in jury instructions are questions of law, which we review de novo.' [Citation.] An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. [Citation.]" (People v. Fenderson (2010) 188 Cal.App.4th 625, 642.)
B. Failure to Define Theft
1. Issue Presented
Mendoza contends that his convictions for burglary (counts 1, 5, 6) and possession of burglary tools (count 3) must be reversed because the trial court failed to define "theft," the target offense of the alleged burglaries.
Burglary is defined in section 459, which provides: "Every person who enters any house . . . or other building . . . vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit [theft] or any felony is guilty of burglary."
"The name of the crime formerly known as 'larceny' having been changed to 'theft' [citation], section 459 is to be read as if it used the word 'theft' instead of 'larceny.' [Citations.]" (People v. Corral (1943) 60 Cal.App.2d 66, 70 (Corral).)
In this case, the trial court instructed the jury regarding the elements of burglary by giving a modified version of CALCRIM No. 1700, which stated: "The defendant is charged in Counts one, five and six with burglary in violation of Penal Code section 459. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant entered a locked vehicle; [¶] AND [¶] 2. When he entered a locked vehicle, he intended to commit theft. [¶] To decide whether the defendant intended to commit theft, please refer to the separate instructions that I will give you on these crimes. [¶] If you find the defendant guilty of burglary, it is burglary of the second degree. [¶] A burglary was committed if the defendant entered with the intent to commit theft. The defendant does not need to have actually committed theft as long as he entered with the intent to do so. The People do not have to prove that the defendant actually committed theft." (Italics added.)
As Mendoza contends, the italicized sentence in the above instruction contemplates that the trial court would supplement CALCRIM No. 1700 with a separate instruction addressing the crime of theft. Indeed, a Bench Note to CALCRIM 1700 states: "Although actual commission of the underlying theft or felony is not an element of burglary [citation], the court has a sua sponte duty to instruct that the defendant must have intended to commit a felony and has a sua sponte duty to define the elements of the underlying felony. [Citations.]" (Bench Note to CALCRIM No. 1700 (Fall 2016 ed.) p. 1253, boldface omitted.) In the present case, however, the trial court did not provide the jury with any other instruction which either defined theft or set forth the elements of that offense.
On appeal, Mendoza characterizes this omission as a violation of the trial court's sua sponte duty to "to instruct the jury on all the general legal principles relevant to the case" and a violation of Mendoza's constitutional right to due process. The People contend that "theft" is a commonly understood word which does not need to be expressly defined for a jury and even if there was error, it was harmless.
2. Analysis
In Corral, supra, 60 Cal.App.2d 560, the defendant went into a department store, put a suit down inside his trousers, left the store, and was detained in the parking lot. In his subsequent burglary trial, the court instructed the jury regarding the definition of burglary by using the language of section 459, except that it substituted the word theft for larceny. (Id. at pp. 71-72.) On appeal, the defendant argued that the trial court committed an instructional error by failing to give the jury a definition of theft. (Id. at p. 72.) The defendant reasoned that several different acts can constitute a theft and that by failing to define that term, the court left the jury "in ignorance of the precise nature of the intent" that defendant had to have possessed in order to be guilty of the charged burglary. (Ibid.) Rejecting this claim of error, the Corral court held: "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." (Ibid.)
Corral was approved but distinguished by our Supreme Court in People v. Failla (1966) 64 Cal.2d 560 (Failla). The Failla defendant was charged with five nighttime burglaries involving different female victims. Each incident involved some type of sexual offense by the defendant, although some of the alleged conduct would not have constituted a felony. The jury found the defendant was guilty of the burglaries pursuant to an instruction that "a necessary element of burglary is a specific intent to commit theft 'or any felony.' " (Id. at p. 564.) Reversing the convictions, the Failla court found that the trial court committed prejudicial error by "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 [that] amount to felonies." (Ibid.)
The Failla court reasoned as follows: When "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 the '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." (Failla, supra, 64 Cal.2d at p. 564.)
In reaching its conclusion, however, the Failla court also acknowledged that when theft by larceny is the only target offense contemplated by the evidence, and evidence of the defendant's intent to commit that offense is so clear that the jury could not have any doubt about it, then even if an instruction defining theft should have been given, the error may be deemed harmless. (Failla, supra, 64 Cal.2d at p. 564.) On this ground, the court distinguished Corral, supra, 60 Cal.App.2d 66. (Failla, at p. 564.)
In the wake of Failla, the duty to instruct a jury regarding the target offense of a charged crime "has become well established. [Citations.]" (People v. Hughes (2002) 27 Cal.4th 287, 349; see also People v. Rathert (2000) 24 Cal.4th 200, 204 ["In a burglary prosecution, complete and accurate jury instructions include the definition of each felony the defendant is alleged to have intended to commit upon entry into the burglarized structure."].) However, cases finding a violation of this duty for failing to define the target offense of a burglary charge uniformly involve situations in which the target offense was a felony other than theft. (See, e.g., People v. Hughes, at p. 349 [failure to define target offense of rape]; People v. Smith (1978) 78 Cal.App.3d 698 [failure to define target offense of assault].) Furthermore, as noted, the Failla court implicitly approved the rule applied in Corral, supra, 60 Cal.App.2d 66, that when theft by larceny is the only target offense contemplated by the evidence, and the jury could not reasonably conclude otherwise, even if an instruction defining theft should have been given, the error may be deemed harmless. (Failla, supra, 64 Cal.2d at p. 564.)
In the present case, the People argue that Corral, supra, 60 Cal.App.2d 66, establishes that an additional instruction regarding the definition of theft was not required because theft by larceny was the only target offense suggested by the evidence. The People further contend that the jury could not have been confused or misled by the challenged instruction because the word "theft" is analogous to the word "steal," which has a " 'fixed and well-defined meaning.' " (Quoting People v. Parson (2008) 44 Cal.4th 332, 352.)
In his opening brief, Mendoza does not address Corral, supra, 60 Cal.App.2d 66. In his reply brief, Mendoza contends that Corral is inapposite because in the present case there was evidence that his conduct was nothing more than vandalism. In the trial court, Mendoza's core defense was that the police officers were not credible witnesses and that the jury should disregard their testimony. In argument, Mendoza's counsel did argue that all of his actions were innocuous and that, at worst, he was guilty of vandalism. However, this defense could not have created any confusion as to what "theft" meant in the context of the charged burglaries. Furthermore, Mendoza also overlooks the fact that the jury was also instructed regarding the lesser included offense of tampering with a vehicle (Veh. Code, § 10852) and rejected that option, finding instead that Mendoza was guilty of all three charged burglaries.
In any event, we will assume for purposes of argument that the trial court erred by failing to define the crime of theft for the jury. We conclude, however, that the error was harmless. In addressing the prejudice issue, the parties agree that the federal harmless beyond a reasonable doubt standard applies. (See People v. Hughes, supra, 27 Cal.4th at pp. 352-353.) The prosecution's theory with respect to all three burglary charges was that Mendoza forced entry into a car with the intent to steal the owner's property including, in particular, a car stereo. There was no confusion about these allegations, and the People did not pursue any alternate theories. Furthermore, the evidence supporting these charges was overwhelming and essentially uncontradicted. Under these circumstances, we conclude that, regardless of the applicable standard of prejudice, the outcome of this trial would not have been different if the jury had been given an additional instruction defining the word "theft."
We note, however, that in Failla, supra, 64 Cal.2d at page 567, the court applied the prejudice standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, when considering whether failure to define a target offense of burglary constituted prejudicial error. --------
C. Characterizing a Flashlight as a Burglary Tool
1. Issue Presented
Mendoza contends this his count 3 conviction for possession of burglary tools during the September 2013 incident must be reversed because the trial court "wrongly instructed the jury that it could find [him] guilty of possession of a burglary tool by finding that he possessed a flashlight."
Section 466 states: "Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, trailer coach, or vehicle as defined in the Vehicle Code, . . . is guilty of a misdemeanor."
As noted above, the appellate record contains little information about how the jury instructions were prepared for this case. However, the agreed instructions included a special instruction regarding the possession of burglary tool charges, which stated: "The defendant Rafael Mendoza is charged in Counts 3 and 7 with possession of Burglary tools. [¶] To prove the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant was in possession of any of the following items: screwdriver, flashlight, ceramic or porcelain spark plug chips or pieces, [¶] AND [¶] 2. When the defendant possessed the item(s) he did so with the felonious intent to break or enter into any building or vehicle without the owner's consent. [¶] Felonious intent is defined as the intent to commit burglary in the first or second degree. [¶] Second degree burglary includes burglary of a vehicle or commercial/non-residential building."
Mendoza now contends that a flashlight is not a burglary tool as a matter of law because it is not identified as a burglary tool in section 466 and it is not similar to tools that are listed therein. The People contend that, under the circumstances of this case, a flashlight is an "other instrument or tool" within the meaning of section 466, and even if it is not, the alleged instructional error was harmless.
2. Analysis
The elements of the crime of possession of burglary tools in violation of section 466 are: "(1) possession by the defendant; (2) of tools within the purview of the statute; (3) with the intent to use the tools for the felonious purposes of breaking or entering. [Citation.]" (People v. Southard (2007) 152 Cal.App.4th 1079, 1084-1085.) " ' "The offense is complete when tools or other implements are procured with intent to use them for a burglarious purpose." ' [Citation.]" (Id. at p. 1088.) "Such intent is usually proven by circumstantial evidence. [Citation.]" (In re H.W. (2016) 2 Cal.App.5th 937, 941 (H.W.).)
Arguing that a flashlight does not constitute an instrument within the purview of section 466, Mendoza relies on People v. Gordon (2001) 90 Cal.App.4th 1409, 1412 (Gordon). In Gordon, the appellate court reversed a conviction for possession of burglary tools based on evidence that police found defendant in possession of pieces of a porcelain spark plug, an item that was not listed in the version of section 466 that was in effect when Gordon was decided. Applying the doctrine of "ejusdem generis," the court found that the "other instrument or tool" language in section 466 was limited to devices that were similar to those set forth in the statute and that a spark plug did not fall into that category because it is not a key, key replacement, or tool that can be used to pry open a door or to pick or otherwise remove a lock. (Gordon, at pp. 1412-1413.)
Contending that a flashlight can constitute a burglary tool under certain circumstances, the People rely primarily on People v. Kelly (2007) 154 Cal.App.4th 961 (Kelly), a case decided by Division Three of the First District. The Kelly court found that a slingshot and box cutters were burglary tools within the scope of the "other instrument or tool" language of section 466 where the evidence showed that these items were possessed by the defendant with the intent to be used in a burglary. (Kelly, at p. 961.)
In reaching its conclusion, the Kelly court declined to follow Gordon for two main reasons. (Kelly, supra, 154 Cal.App.4th at pp. 966-968.) First, the Kelly court pointed out that "the Legislature disagreed with the decision in Gordon and amended section 466 the following year to specifically include 'ceramic or porcelain spark plug chips or pieces' among the enumerated burglary tools. (Stats. 2002, ch. 335, § 1.)" (Kelly, at p. 966.) The Kelly court reasoned that "[t]he legislative response to Gordon undermines its conclusion that section 466 was intended to encompass only items that can be used to unlock, pry, or pull something open." (Id. at pp. 966-967.) Second, and in any event, the Kelly court disagreed with Gordon's application of the doctrine of "ejusdem generis" to justify a narrow construction of the "other instrument or tool" language in section 466. (Kelly, at p. 967.) The Kelly court reasoned that "the plain import of 'other instrument or tool,' and the only meaning that effectuates the obvious legislative purpose of section 466 includes tools that the evidence shows are possessed with the intent to be used for burglary." (Kelly, at pp. 967-968, fn. omitted.)
Gordon was followed in People v. Diaz (2012) 207 Cal.App.4th 396, 404 (Diaz), where the appellate court found that latex gloves and a large bag used by the defendant did not constitute burglary tools. Disagreeing with Kelly, the Diaz court found that the "instrument or tool" language in section 466 is limited to "instruments and tools used to break into or gain access to property in a manner similar to using items enumerated in section 466." (Diaz, supra, 207 Cal.App.4th at p. 404.)
However, Kelly was followed in H.W., supra, 2 Cal.App.5th 937, where the appellate court found that pliers can constitute a burglary tool. Disagreeing with Gordon and Diaz, the H.W. court held: " 'the plain import of "other instrument or tool," and the only meaning that effectuates the obvious legislative purpose of section 466 includes tools that the evidence shows are possessed with the intent to be used for burglary.' [Citation.] Such an interpretation is consistent with the purpose of the statute, which is to prevent the crime regardless of whether the tool is used to gain entry, to break into the building, or to effectuate the theft." (H.W., supra, 2 Cal.App.5th at p. 944.)
Notably, none of these cases either reviewed a jury instruction regarding the elements of section 466 or decided whether a flashlight can constitute a burglary tool. Although the Kelly defendant argued that a flashlight, box cutter knife and slingshot do not qualify as burglary tools, the appellate court limited its analysis to the box cutter and slingshot, and declined to express an "opinion on whether possession of a flashlight alone may satisfy section 466." (Kelly, supra, 154 Cal.App.4th at p. 968, fn. 4.) We also decline to decide whether a flashlight can ever constitute a burglary tool within the meaning of section 466. Instead, we conclude that if the trial court in the present case committed an error of law by instructing the jury that possession of a flashlight could satisfy an element of section 466, that error was harmless.
"Instructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict. [Citations.]" (People v. Chun (2009) 45 Cal.4th 1172, 1201.) Applying this test, we conclude the alleged instructional error was harmless for a combination of two reasons. First, the challenged jury instruction also identified a screwdriver as a potential burglary tool, and section 466 expressly states that a screwdriver does qualify as a burglary tool. Second, the record demonstrates beyond a reasonable doubt that the jury based its verdict on evidence that Mendoza possessed a screwdriver with the intent to commit a burglary. As discussed in our factual summary, on September 26, 2013, Officer Sullivan saw Mendoza rummaging around inside the Acura with a "completely shattered" window. When Mendoza was arrested, items taken from the car were on the ground next to him and a screwdriver was in his back pants pocket. Furthermore, Sullivan testified that, in his experience, individuals use screwdrivers to break into vehicles in order to commit burglaries.
Mendoza contends that Sullivan's testimony that Mendoza also possessed a flashlight on the night in question makes it impossible to conclude beyond a reasonable doubt that the jury based its verdict solely on the screwdriver. This argument mischaracterizes the pertinent issue. Unquestionably, evidence that Mendoza had a flashlight was admissible; indeed, the fact that Mendoza was in possession of a flashlight on the night in question was circumstantial evidence of his intent to use the screwdriver as a burglary tool. (See People v. Southard, supra, 152 Cal.App.4th at p. 1088 ["possession of items commonly used by burglars to facilitate a burglary, but not themselves within the statutory definition of burglary tools, can evidence the requisite felonious intent"].) Thus, to the extent the jury based its verdict on a finding that Mendoza possessed a flashlight and a screwdriver, the alleged instructional error was harmless beyond a reasonable doubt.
The only conceivable prejudicial error that could have resulted from using the challenged instruction was if the jury based the conviction solely on the fact that Mendoza possessed a flashlight. However, the record forecloses the possibility that the jury took that option. It is simply not feasible that the jury accepted evidence that Mendoza possessed a flashlight, but rejected evidence that he also possessed a screwdriver. Thus, we find beyond a reasonable doubt that the conviction for violating section 466 was based on a finding that Mendoza possessed a screwdriver.
Finally, Mendoza contends that even if the alleged instructional errors were independently harmless, cumulatively they were prejudicial because the evidence against him was not overwhelming. As we have discussed, there is some question as to whether any instructional error occurred. But assuming there were errors, they were harmless precisely because the evidence supporting Mendoza's convictions was overwhelming.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.