Opinion
F040993.
10-14-2003
THE PEOPLE, Plaintiff and Respondent, v. JULIO PEREZ RODRIGUEZ, Defendant and Appellant.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Julio Perez Rodriguez was convicted of the second degree burglary of a sealed cargo container. He appeals, claiming defense counsel erred in advising him on his right not to testify, the trial court erred in failing to give CALJIC No. 2.15, the trial court erred in failing to instruct the jury on the term "cargo container," and the evidence is insufficient to support a finding that defendant burglarized a sealed cargo container. We agree the evidence is insufficient, causing us to reduce the conviction to a lesser included misdemeanor offense shown by the evidence.
FACTS AND PROCEEDINGS
On March 16, 2002, at approximately 9:30 a.m. Frank Winslow was making a produce delivery at the Rainbow Market. A train was stopped by the store. Winslow saw defendant trying to get into a trailer on the train. Defendant was trying the handles on the trailer and looking around. Winslow entered the store and called 911. He returned outside in 45 seconds to a minute. When he came outside he saw defendant running with a big box. Defendant put the box down and removed a toy truck from it. Defendant tried to sell the truck to Winslow for $50. Winslow told the defendant he had called the police. Defendant took the box down the street. Police arrived and arrested defendant. Winslow was positive that defendant was the person he saw breaking into the trailer on the train.
Andrew Garcia was heading up the street when a train blocked his path. He saw defendant prying open a "JB Hunt trailer" on the train. He was using a pry bar "like a piece of pipe." He saw defendant remove a big box from the trailer. Garcia was going to call the police, but then he saw some railroad personnel. He reported what he had seen to them. Garcia spoke to police officers after they arrived. At that time defendant was down the street with the box. Garcia had been convicted of first degree burglary in 1999.
Train security officers determined which train had been in Bakersfield at the time of the break-in. The train was no longer in Bakersfield. Officers in Fresno checked all the container trailers on this train. Security officers found that one trailer had its seal broken and one box was missing from the trailer. The box contained a Power Wheels motorized big truck.
A police officer called to the scene found a gray pipe near where the train had been stopped. There was a latent fingerprint on the pipe. The fingerprint was identified as coming from defendants left middle finger.
Defendant was charged with second degree burglary as found in Penal Code[] section 459. It was alleged that he willfully and unlawfully entered a Santa Fe railroad boxcar. Defendant proceeded to trial, the prosecution presenting evidence consistent with the facts stated above. After the People rested, the information was amended, without objection, to allege that defendant willfully and unlawfully entered a Santa Fe piggyback car. The information was amended one more time to allege that defendant committed a second degree burglary against Santa Fe Railroad by willfully and unlawfully entering a sealed container.
All statutory references are to the Penal Code unless otherwise noted.
Although no evidence was offered for the defense, it was the defense theory that Garcia, a convicted felon, actually broke into the cargo container and defendant was an opportunist who got the box from Garcia.
The jury was instructed that in order to prove the crime of second degree burglary it must be proved that he entered a "sealed container." The jury found defendant guilty of second degree burglary against Santa Fe Railroad. On July 8, 2002, defendant was sentenced to prison for the mitigated term of 16 months.
DISCUSSION
I. Substantial Evidence
Section 459 defines burglary as follows: "Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, 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 grand or petit larceny or any felony is guilty of burglary. As used in this chapter, `inhabited means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises." (Emphasis added.)
Section 458 defines "cargo container" as follows: "As used in this chapter, the term `cargo container means a receptacle with all of the following characteristics:
"(a) Of a permanent character and accordingly strong enough to be suitable for repeated use.
"(b) Specially designed to facilitate the carriage of goods, by one or more modes of transport, one of which shall be by vessels, without intermediate reloading.
"(c) Fitted with devices permitting its ready handling, particularly its transfer from one mode of transport to another.
"(d) So designed to be easy to fill and empty.
"(e) Having a cubic displacement of 1,000 cubic feet or more."[]
The definition of a cargo container is the same definition used in Revenue and Taxation Code section 232.
Defendant contends the evidence was insufficient to convict him of second degree burglary because there was no evidence presented at trial showing that the container had a cubic displacement of 1,000 cubic feet or more. He claims his conviction should be reversed with directions to the trial court to enter an acquittal.
On appeal "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (In re James D. (1981) 116 Cal.App.3d 810, 813.)
In In re Amber S. (1995) 33 Cal.App.4th 185, the jury found that the minor committed a burglary of a building, an open pole barn. In California a building, for purposes of the burglary statute, "is any structure which has walls on all sides and is covered by a roof." (Id. at p. 187.) Amber was caught stealing hay from the open pole barn. The barn was described by the owner as a "structure [that] was open on all sides, consisting of a roof and overhang held up by poles." (Id. at p. 186.) The appellate court held that Amber was not properly found to have committed a burglary because an open pole barn does not meet the test of a structure. "The open pole barn described by the owner in the present case does not meet this test, for lack of any walls whatsoever. There was no significant barrier to entrance, no protection from unauthorized intrusions." (Id. at p. 187.)
In People v. Knight (1988) 204 Cal.App.3d 1420, the defendant was convicted of second degree burglary of a "gang box" at a construction sight. On appeal, he claimed that a gang box does not constitute a building within the meaning of the burglary statutes. The appellate court agreed and reversed the burglary conviction.
"The photographs placed into evidence are revealing. The gang box is nothing more than a large metal tool box. It has wheels and a handle by which it can be pulled. A chain through that handle secured it to Warner Electric Companys construction trailer. It opens at the front and is slightly narrower at the top than at the bottom, but otherwise most closely resembles a small trash dumpster. This is not the type of man-made object Penal Code section 459 was designed to protect. If this is a `building, then so is a clothes dryer; the difference being one of degree in that the dryer is smaller and designed to hold something other than tools. That a human being might somehow fit inside either makes neither a `building. The Legislature has adequately protected such property in part 1, title 13, chapter 5 of the Penal Code commencing with Penal Code section 484. We decline the opportunity to extend additional protection by torturing the word `building to include the gang box." (People v. Knight, supra, 204 Cal.App.3d at pp. 1423-1424.)
In each of the above cases there was sufficient evidence in the record to determine the nature of the place burglarized. From this, the appellate court was able to determine if the place burglarized met the definition of one of the enclosures listed in the burglary statute. Here, we do not have sufficient evidence in the record to determine the nature of the place burglarized.
Winslow testified that a train was stopped and defendant was trying to get into a trailer on the train. The prosecutor kept referring to the situs of the break-in as a boxcar. The court questioned Winslow to clarify the matter.
"THE COURT: You mentioned a trailer. Was this one of those piggyback
"A. It was a JB Hunt trailer, like they put two on a rail car. It was a whole line of them.
"THE COURT: Right. So it was a trailer that was sitting on a piggyback on
"A. Like two trailers to a car and they were setting there.
"THE COURT: Right.
"A. They were — he was kind of in between them."
The prosecutor again referred to the item broken into as a boxcar and the court interjected: "You keep calling it a box car. It was a trailer, a piggyback trailer on a flat car.
"MS. MARSHALL [prosecutor]: Piggyback trailer on the flat car."
When Garcia was questioned he stated he saw defendant "prying into a train, one of those JB Hunt trailers."
According to respondent, the evidence was undisputed that a freight trailer, for all intents and purposes a "cargo container," was burglarized. Respondent contends that "cargo container" is not a term peculiar to the law and that burglary is simply the entry into a specified structure with the intent to commit theft or another felony. Respondent concludes, "There can be no question that appellant committed a burglary of the J. B. Hunt freight trailer and that this trailer was a `locked or sealed cargo container within the common meaning of that term."
Respondents argument fails. There is no question that the evidence clearly established that defendant broke into and stole something from a J.B. Hunt trailer that was on a train. Where we disagree with respondents analysis is that a cargo container for burglary purposes is not subject to the common meaning of the term, but must meet the requirements of Penal Code section 458.
In People v. Godwin (1996) 50 Cal.App.4th 1562, the jury found that the defendant used a deadly or dangerous weapon during the commission of a robbery. (Pen. Code, § 12022.) The weapon used was a starter pistol. The court found insufficient evidence to support the jurys finding that the weapon used, a starter pistol, was a deadly or dangerous weapon. "The situation here in the absence of any evidence about the starter pistols capacities as a deadly or dangerous weapon is the same as in Reid [(People v. Reid (1982) 133 Cal.App.3d 354.)]. The starter pistol was never shown to be capable of being used in the similar fashion to a firearm so as to be a deadly or dangerous weapon as a matter of law. There was no evidence appellant intended to use the starter pistol as a bludgeon, although it could be used as such. In fact, the evidence was to the contrary since appellant backed off so readily when Claire Pollard challenged appellant. The threats to shoot a nondischarging or unloaded starter pistol do not amount to evidence the starter pistol would be used as a bludgeon. On this record, the evidence is insufficient to support the findings of the use of a deadly and dangerous weapon in the Zornes and Larson robberies (counts 3 and 7)." (People v. Godwin, supra, at p. 1574.)
Here, as in Godwin, no evidence established the characteristics of the item in question. There was no evidence of the dimensions of the trailer. There was clearly no evidence that the cargo container had a cubic displacement of 1,000 cubic feet or more, nor was there evidence that it was fitted with devices permitting its ready handling, particularly its transfer from one mode of transport to another. We do not think these criteria are matters of common knowledge. (Compare In re Martin (1962) 58 Cal.2d 509, 512 [matter of common knowledge that the intoxicating effect of alcohol diminished with the passage of time]; People v. Bradford (1997) 14 Cal.4th 1005, 1063 [matter of common knowledge that women are employed as state prison guards].) The evidence presented at defendants trial was incomplete and failed to prove crucial facts sufficient for the jury to find that he burglarized a cargo container, as that term is defined in Penal Code section 458.
The judgment of conviction for second degree burglary must be reversed with retrial prohibited.
Although the evidence presented at trial would have been sufficient to convict defendant of theft, he was not charged with the actual theft of the box from the train. "An accusatory pleading provides notice of the specific offense charged and also of offenses included within the charged offense [citations], but it does not provide notice of nonincluded offenses; consequently, `[a] person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense [citation]." (People v. Toro (1989) 47 Cal.3d 966, 973.)
A defendant cannot be convicted of an uncharged lesser related offense when the evidence is insufficient to support the charged offense, but an appellate court may reduce the conviction to a lesser degree of the offense charged or a lesser crime included therein. (People v. Martinez (1999) 20 Cal.4th 225, 241; People v. Matian (1995) 35 Cal.App.4th 480, 487, § 1181, subd. 6.)
"The legal principles underlying the difference between lesser included and lesser related offenses are well settled. To qualify as a lesser offense that is necessarily included in another offense, `"all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense." [Citations.] Stated another way, when a crime cannot be committed without also committing another offense, the latter is necessarily included within the former. [Citations.] An offense is also included within a charged offense `"if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." [Citations.]" (People v. Lagunas (1994) 8 Cal.4th 1030, 1034.)
The accusatory pleading, as amended, charged defendant with willfully and unlawfully entering a Santa Fe Railroad sealed container with the intent to commit larceny or any felony. Although the prosecution failed to prove that the container defendant entered was a cargo container as that term is defined in section 458, the accusatory pleading described the offense in such a way that defendant could be convicted of the lesser included offense contained in section 587b. That section provides: "Every person, who shall, without being thereunto authorized by the owner, lessee, person or corporation operating any railroad, enter into, climb upon, hold to, or in any manner attach himself to any locomotive, locomotive-engine tender, freight or passenger car upon such railroad, or any portion of any train thereon, shall be deemed guilty of a misdemeanor, and, upon conviction thereof shall be punished by a fine not exceeding fifty dollars ($50), or by imprisonment not exceeding 30 days, or by both such fine and imprisonment."
The unlawful entry into a Santa Fe Railroad sealed container clearly met the requirements of section 587b. Defendants conviction for second degree burglary is reversed with retrial prohibited. The conviction is reduced to a misdemeanor conviction for a violation of section 587b.[]
We requested supplemental briefing on the proper disposition if the conviction for second degree burglary is reversed based on insufficient evidence. Defendant agrees the conviction could be reduced to the lesser included offense of violation of section 587b. Respondent maintains that the evidence is sufficient, but should we find otherwise, the conviction should be reduced to the lesser offense.
II. Failure to Instruct on Technical Requirements of a Sealed Container
Defendant argues that the trial court erred in failing to instruct the jury on the technical requirements of a sealed container. In light of the reversal of defendants conviction for burglary of a sealed container, this issue is moot.
III. Advisement to Defendant on Right to Testify
After the prosecution rested its case defense counsel wished to place on the record his advisement to defendant regarding his right to testify and his right against self-incrimination. The advisement occurred as follows:
"MR. MOORE [defense counsel]: Mr. Perez, you understand in connection with this trial that you have the right to testify.
"THE DEFENDANT: Yes.
"MR. MOORE: You have the right to get up on the stand and tell the jury under oath your side of the story.
"THE DEFENDANT: Yes.
"MR. MOORE: Do you understand if you do testify that anything that you say can and will be used against you?
"THE DEFENDANT: Yes.
"MR. MOORE: Do you understand that if you choose to testify, after you are done asking my — after you are done answering my questions, the prosecutor will be permitted to ask you questions?
"THE DEFENDANT: Yes.
"MR. MOORE: Do you understand that if you choose to testify and choose to answer my questions, then you will have to answer the prosecutors questions.
"THE DEFENDANT: Yes.
"MR. MOORE: And do you understand that you have the right to testify even if I tell you I dont think you should testify?
"THE DEFENDANT: Yes.
"MR. MOORE: Do you understand also that you have the absolute right to remain silent?
"THE DEFENDANT: Yes.
"MR. MOORE: You have the right not to testify.
"THE DEFENDANT: Yes.
"MR. MOORE: Called the right against self-incrimination. Do you understand that?
"THE DEFENDANT: Yes.
"MR. MOORE: Do you understand that if you choose to remain silent, that the jury would be instructed that they could not consider your silence as evidence against you?
"THE DEFENDANT: Yes.
"MR. MOORE: Now you understand in connection with our discussions I have shared with you certain judgments on my part.
"THE DEFENDANT: Yes.
"MR. MOORE: But you understand that whatever decision you make is your own. You are not bound in either direction to either accept or — and you certainly are free to reject any judgment or advice I may have given you in that regard.
"THE DEFENDANT: Yes.
"MR. MOORE: Do you understand it is your choice?
"THE DEFENDANT: Yes.
`MR. MOORE: Having those rights in mind, is it your decision to testify or to not testify?
"THE DEFENDANT: No.
"MR. MOORE: Thank you.
"THE COURT: Well, that doesnt tell us. Right?
"MR. MOORE: When you say no, do you mean — well, what do you mean?
"THE DEFENDANT: I dont want to go up.
"THE COURT: You dont want to testify?
"THE DEFENDANT: No, I dont want.
"THE COURT: All right." (Emphasis added.)
Defendant asserts that the above emphasized statement was coercive and carried an intimidating force infringing his right to testify in his own defense.
A defendant has a constitutional right to testify in his own behalf and also a privilege against compelled self-incrimination. These rights are of equal dignity. (People v. Barnum (2003) 29 Cal.4th 1210, 1223.)
We have found no cases on point where defense counsel may have misadvised the defendant regarding his right to testify and/or his right against compulsory self-incrimination. In the context of advisements made to witnesses that persuade them to not testify, thereby infringing the defendants compulsory process right, the defendant must show that the advisement transformed a willing witness to one who would refuse to testify. (In re Martin (1987) 44 Cal.3d 1, 31.)
In People v. Schroeder (1991) 227 Cal.App.3d 784 the trial court engaged in a lengthy interchange with a defense witness in an effort to fully apprise the witness of her privilege against self-incrimination. The witness indicated that she wished to testify. The trial court continued speaking to the witness and "in essence became an advocate repeatedly cautioning [the witness] about the folly of her decision. Even after defense counsel expressed concern that the courts comments were bordering on coercion and intimidation, the court persisted [¶]... . By its frequent interruptions, admonishments and questions, the court inappropriately made clear to [the witness] that it disagreed with her intended action and felt that she should not testify." (Id. at p. 793.) The appellate court found the trial court exceeded its duty to ensure the witness was fully apprised of her privilege against self-incrimination. (See also cases involving comments by a prosecutor to a witness—People v. Warren (1984) 161 Cal.App.3d 961, 971-976 [threat that witness would be prosecuted for any crimes revealed in testimony]; People v. Robinson (1983) 144 Cal.App.3d 962, 970 [threat that charges will be filed]; United States v. Hammond (5th Cir. 1979) 598 F.2d 1008, 1012-1013 [threat of "untoward consequences" if witnesses testified.].)
Nothing in the present record suggests that the advisement by defense counsel transformed defendant from a willing witness to one who chose not to testify. The comments were not of such a nature as to persuade defendant not to testify. There was no showing that defendant wanted to testify but changed his mind after hearing defense counsels advisement in court. The disputed language used by defense counsel "can and will be used against you" is commonly understood to mean that the prosecution can use any statements made by defendant against himself. This language is typically part of a Miranda (Miranda v. Arizona (1966) 384 U.S. 436) warning given during custodial interrogation. The warning is used as a procedural safeguard to protect the individuals privilege against self-incrimination. The advisement of rights given here to defendant reasonably conveyed that he had the right to testify on his own behalf and also had the right against self-incrimination. The words chosen by counsel, viewed in the context of the entire advisement, were not intimidating and did not infringe upon defendants right to testify in his own defense.
IV. CALJIC No. 2.15
The trial court failed to instruct the jury with CALJIC No. 2.15. It provides:
"If you find that a defendant was in [conscious] possession of recently [stolen] [extorted] property, the fact of that possession is not by itself sufficient to permit an inference that the defendant _______ is guilty of the crime of _______. Before guilt may be inferred, there must be corroborating evidence tending to prove defendants guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt.
"As corroboration, you may consider [the attributes of possession—time, place and manner,] [that the defendant had an opportunity to commit the crime charged,] [the defendants conduct,] [[his] [her] false or contradictory statements, if any,] [and] [or] [other statements [he] [she] may have made with reference to the property] [a false account of how [he] [she] acquired possession of the stolen property [any other evidence which tends to connect the defendant with the crime charged]."
CALJIC No. 2.15 "is a permissive, cautionary instruction which inures to a criminal defendants benefit by warning the jury not to infer guilt merely from a defendants conscious possession of recently stolen goods, without at least some corroborating evidence tending to show the defendants guilt." (People v. Barker (2001) 91 Cal.App.4th 1166, 1174.) "[W]here identity of a perpetrator is in dispute or sought to be proved by circumstantial evidence, CALJIC No. 2.15 protects the defendant from unwarranted inferences of guilt based solely on possession of property stolen in the charged offense." (People v. Holt (1997) 15 Cal.4th 619, 677.)
Defendant asserts that the omission of this instruction was a miscarriage of justice, a denial of due process, and had a substantial and injurious influence on the verdict. He contends the critical issue at trial was his identity and the error deprived the jurors of a crucial instruction regarding how they were to evaluate defendants possession of recently stolen property, namely, that the possession by itself was not sufficient to permit an inference that he was guilty of the burglary.[]
Although as previously discussed, we reverse defendants burglary conviction because it is not supported by substantial evidence, this instructional error is relevant to the question of whether defendant unlawfully entered a portion of the train.
Without conceding that it was error to give the instruction, respondent claims error, if any, was not prejudicial. We agree.
Under either the Watson (People v. Watson (1956) 46 Cal.2d 818, 836) standard requiring the defendant to show that without the error a more favorable outcome was reasonably probable or the Chapman (Chapman v. California (1967) 386 U.S. 18, 24) standard requiring the defendant to show that the error is harmless beyond a reasonable doubt, the error here, if any, was harmless.
Two eyewitnesses identified defendant as the person they saw breaking into the JB Hunt trailer on the train. His fingerprint was found on a bar found near the railroad tracks and in the area where he was seen breaking into the trailer. He was in possession of a box taken from the trailer. The proof of defendants guilt that he was the individual who broke into the trailer on the train was overwhelming. We fail to see how the giving of CALJIC No. 2.15 would have altered the jurys decision.
DISPOSITION
Defendants second degree burglary conviction is reversed with retrial prohibited. We reduce the conviction to a misdemeanor violation of Penal Code section 587b. The case is remanded to the trial court for resentencing.
WE CONCUR: CORNELL, J., GOMES, J.