People v. Jarrell

Opinion

Defendant David Lee Jarrell (appellant) was found guilty by jury of first degree burglary (Pen. Code,^[1] §§ 459, 460, subd. 1). On appeal he argues (1) that the trial court erred in instructing the jury that if appellant was guilty of burglary, it was burglary in the first degree as a matter of law; (2) that the trial court should have suppressed appellant’s involuntary confession and the identification testimony of a key witness; (3) that he was denied effective assistance of counsel; and (4) that the trial court erred in advising the jury to first determine his guilt or innocence of burglary before deciding his culpability for receiving stolen property. We reject each of appellant’s contentions and affirm the judgment.

Facts

On October 28, 1985, Scott Sanders observed two persons, a male and a female, walk by his house in Antioch. The two persons, carrying a black flashlight and a clipboard, passed within about 10 feet of Scott.

Approximately one-half hour later Scott observed the same two persons in the backyard of his next-door neighbors, Mr. and Mrs. Hill. A third person had joined the original two and all three were loading items, such as a television set and microwave oven, from the Hills’ house into the trunk of a car. Scott called his mother, Melinda Sanders, and asked her if the Hills were moving. Walking out on her back patio, Melinda observed the three individuals attempt to close the car’s trunk with a television inside and then drive away. Scott yelled out the car’s license number to Melinda, who telephoned the police and relayed the information.

Several hours later Scott and Melinda went to Pittsburg and identified the three individuals for the police, who had found the described car there. All three, one of whom was appellant, were then arrested.

Following his conviction, appellant was sentenced to prison for the midterm of four years, with the recommendation that he be considered for

Appellant argues the trial court committed reversible error by instructing the jury that if it found “the defendant guilt[y] of the crime of burglary, ... [it is] burglary in the First Degree as a matter of law.” The Attorney General concedes error, but argues it is harmless; we agree the error does not require reversal in this case.

It is a fundamental constitutional principle that the prosecution must prove “every fact necessary to constitute the crime with which [the defendant] is charged” beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358 , 364 [ 25 L.Ed.2d 368 , 375, 90 S.Ct. 1068 ].) “[A] trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict [citations] regardless of how overwhelmingly the evidence may point in that direction.” (United States v. Martin Linen Supply Co. (1977) 430 U.S. 564 , 572-573 [ 51 L.Ed.2d 642 , 652, 97 S.Ct. 1349 ].) This proscription stems from the Sixth Amendment’s command to afford jury trials in serious criminal cases. (See Duncan v. Louisiana (1968) 391 U.S. 145 [ 20 L.Ed.2d 491 , 88 S.Ct. 1444 ].) Our Supreme Court has similarly condemned procedural devices which remove an element of the crime charged from the jury’s consideration as tantamount to a directed verdict. (People v. Figueroa (1986) 41 Cal.3d 714 , 725 [ 224 Cal.Rptr. 719 , 715 P.2d 680 ]; People v. Croy (1985) 41 Cal.3d 1 , 13 [ 221 Cal.Rptr. 592 , 710 P.2d 392 ]; People v. Garcia (1984) 36 Cal.3d 539 , 551, 553-554 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ].)

However, not all such constitutional errors require reversal. (Rose v. Clark (1986) 478 U.S. 570 [ 92 L.Ed.2d 460 , 106 S.Ct. 3101 ].) In People v. Garcia, supra, 36 Cal.3d at pages 554-556, our Supreme Court noted four exceptions to the rule of per se reversal^[2] and these exceptions were reaffirmed in People v. Croy, supra, 41 Cal.3d at page 13.

In Rose, the trial, court instructed the jury that “ ‘All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption.’” (Rose v. Clark, supra, 478 U.S. at p. 574 [92 L.Ed.2d at p. 468, 106 S.Ct. at p. 3104.) The instruction “violated the respondent’s right to have his guilt proved beyond a reasonable doubt, as that right was defined in Sandstrom v. Montana [(1979) 442 U.S. 510 ( 61 L.Ed.2d 39 , 99 S.Ct. 2450 )].” (Ibid.) The court held that the Chapman harmless error doctrine applied in the case of Sandstrom errors.^[4] (Id., at pp. 581-582 [92 L.Ed.2d at pp. 472-473, 106 S.Ct. at pp. 3108-3109.)

However, the court stated that “harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial....’’ (Rose, supra, 478 U.S. at p. 578 [92 L.Ed.2d at p. 471, 106 S.Ct. at p. 3106].) Thus, we must determine whether the jury instruction given here was the functional equivalent of a directed verdict in California.

Our Supreme Court addressed the question in People v. Figueroa, supra, 41 Cal.3d 714 , prior to Rose. In Figueroa, the trial court was reversed for

People v. Lawson, supra, 189 Cal.App.3d 741 , decided subsequent to both Figueroa and Rose, faced the question of what standard to apply to Figueroa error in light of Rose. The Lawson court recognized that “the Rose court [had] ruled Sandstrom error was not the equivalent to a directed verdict and [had] thus concluded the Chapman test should be applied.” (At p. 753.)^[5] However, the court in Lawson noted that our California Supreme Court in People v. Figueroa, supra, 41 Cal.3d 714 , had “concluded an instruction which characterizes something as a security under the corporate securities law was tantamount to a directed verdict.” (Lawson, supra, 189 Cal.App.3d at p. 753.) But recognizing that the Figueroa court did not decide the applicable standard of prejudice, it found reversal required without regard to prejudice in this case, but emphasized that “per se reversal may not be required under different circumstances.” (Id., at p.744.)

Turning to the case at bench, we believe determination of the degree of a crime as a matter of law is not tantamount to a directed verdict and, therefore, such an instruction can be tested by the harmless error standard. In Figueroa and Lawson, whether the instrument was a “security” was an essential element of the crime charged. The court in Lawson recognized that “each charge of which the defendant was convicted included as a necessary element the existence of a security.” (People v. Lawson, supra, 189 Cal.App.3d at p. 754.) A determination by the jury that securities were not involved would have been dispositive. Conversely, here appellant was charged with burglary under section 459; the degrees of burglary are set forth in section 460. The court’s instruction here did not remove any essential element from the jury’s consideration as in Figueroa and Lawson. The trial court instructed the jury on each of the necessary elements of burglary (entry, structure and intent) and the jury returned its verdict after weighing the evidence in light of this definition.

We reject appellant’s argument that People v. Shavers (1969) 269 Cal.App.2d 886 [ 75 Cal.Rptr. 334 ], compels us to reverse his conviction.

We believe the error here “does not compare with the kinds of errors that automatically require reversal of an otherwise valid conviction.” (Rose v. Clark, supra, 478 U.S. at p. 579 [92 L.Ed.2d at p. 471, 106 S.Ct. at p. 3107].) The United States Supreme Court has stressed that the errors to which the Chapman standard does not apply “are the exception and not the rule.” (Id., at p. 578 [92 L.Ed.2d at p. 471, 106 S.Ct. at p. 3106].) The instruction here did not “totally deprive[] [appellant] of his right to jury trial” on every essential element of the crime of burglary. (People v. Lawson, supra, 189 Cal.App.3d at p. 754, original italics.) Application of the harmless error rule here will “promote[ ] public respect for the criminal process by focusing on the underlying fairness of the trial-rather than on the virtually inevitable presence of immaterial error.” (Delaware v. Van Arsdall (1986) 475 U.S. 673 , 681 [ 89 L.Ed.2d 674 , 684-685, 106 S.Ct. 1431 , 1436-1437].)

When tested under the Chapman standard, the instructional error must be deemed harmless beyond a reasonable doubt. What made this burglary of the first degree was that the structure burglarized was “an inhabited dwelling house.” (§ 460, subd. 1.) Floyd Hill, the owner of the house burglarized here, testified that he and his wife lived in the house on the day of the break-in. Mr. Hill also identified items removed from the house as his personal property. Mr. Hill stated that the back door to his garage had been kicked in and a patio screen door had been cut. Both principal witnesses testified that Mr. Hill was their next-door neighbor. Not

Although we have concluded that the Chapman standard is applicable to the case at bar, we note that analysis under the Garcia exception produces the same result. It clearly appears from the record that the parties presented all evidence of current habitation at their disposal, and spoke of the burglarized house as Mr. Hill’s “home.” No evidence was presented to establish that Mr. Hill’s home was not “an inhabited dwelling house.” Indeed, the defense conceded the burglary, disputing only the identity of the burglar. Consequently, the case at bench falls within the Cantrell-Thornton exception set out in Garcia: “[T]he parties recognized that [the degree] was in issue, presented all evidence at their command on [the] issue, and . . . the record not only establishes the [degree] as a matter of law but shows the contrary evidence not worthy of consideration.” (People v. Garcia, supra, 36 Cal.3d at pp. 556.) Significantly, here there was no contrary evidence.

II.-V.^[7]

The judgment is affirmed.

Channell, J., and Sabraw, J., concurred.