People v. Epps

Opinion

Appellant has appealed from a judgment of conviction which, subject to the provisions of Penal Code section 1168, sentenced him to state prison following jury verdicts that found him and a codefendant each guilty of burglary in the second degree. He contends: (1) that in violation of principles set down in Bruton v. United States (1968) 391 U.S. 123 [ 20 L.Ed.2d 476 , 88 S.Ct. 1620 ], he was denied due process of law and confrontation of witnesses because his codefendant’s out-of-court statement implicating him was admitted in evidence at a trial where his codefendant did not take the stand; (2) that insofar as his separately appointed counsel failed to raise the foregoing objection at trial, he was denied the effective assistance of counsel; and (3) that the instructions given by the trial court were contradictory, confusing and misleading to the jury and contained a misstatement of the law.

Appellant’s contentions must be viewed within the framework of the following facts which were established by evidence in the record.

On March 27, 1971, at approximately 2:17 a.m. a burglary report came in to the Berkeley Police Department for the Bryant Laboratories, a company which stores and distributes some three or four thousand chemicals to pharmacies, hospitals and manufacturing laboratories. Officer Joseph Sanchez, testified that he was already cruising in the area on patrol, and arrived at the scene within seconds of the call. Before arriving, he had turned off his car lights when about three blocks away, however, he emphasized that the building involved and surrounding area were extremely well lighted.

As he drove up approximately one-half block away from the laboratory, he saw a 1963 green Pontiac Grand Prix with its hood up in a vacant lot next to the laboratory warehouse and one man standing near the hood.

The statements attributed to Freeland must be examined for their incriminatory effect on Epps. The testimony shows that Freeland asked, “What about the other guy?” This indicates a concern from which could be inferred some association, or acquaintance with the other suspect, which, in turn, could give rise to a common purpose for both in whatever activities were being pursued at that hour of the morning. Freeland allegedly first answered that his name was “Epps.” The knowledge of what proved to be the true name of the other person on the scene, gives rise to the same inferences. Similar inferences arise from Freeland’s reported recantation and statements, “Epps is the other guy. ... I know him.” The remainder of the statement in which Freeland confessed that he went into the building to look for some drugs and was apprehended did not mention Epps in any way.

In applying the rule suggested in Aranda (see fn. 5 above, and accompanying text), it is clear that Freeland’s extrajudicial statement was not a material factor in linking the defendants together. In the absence of any explanation, they were immutably linked by their joint presence at 2 a.m. in and about a vacant lot, and an adjoining building which was suspected as the scene of a burglary and which proved to have been forcibly entered. That conclusion was fortified by independent evidence that the two had been seen together as recently as nine days before. Under those circumstances it is arguable that the statement of Freeland contained cumulative evidence linking the two defendants together, but it is equally arguable that the content of the statement did not require the jury to ignore the limiting instruction in order to find that Epps and Freeland were acquainted. The balance of Freeland’s statement is no more than a statement that he (Free-land) went into the building (see fn. 5, supra). On this analysis there was really no Bruton or Aranda error in the sense of incompetent evidence which incriminated or inculpated Epps. (See People v. Floyd (1970) 1 Cal.3d 694 , 719 [ 83 Cal.Rptr. 608 , 464 P.2d 64 ] [cert. den. (1972) 406 U.S. 972 ( 32 L.Ed.2d 672 , 92 S.Ct. 2418 )]; People v. Flores (1968) 68 Cal.2d 563 , 568 [ 68 Cal.Rptr. 161 , 440 P.2d 233 ] [cert. den. (1969) 393 U.S. 1057 ( 21 L.Ed.2d 698 , 89 S.Ct. 697 )), overruled on other grounds People v. De Sanitago (1969) 71 Cal.2d 18 , 28, fn. 7 ( 76 Cal.Rptr. 809 , 453 P.2d 353 )]; People v. Wallace (1970) 13 Cal.App.3d 608 , 617-618 [ 91 Cal.Rptr. 643 ]; and People v. Irvin (1968) 264 Cal.App.2d 747 , 764 [ 70 Cal.Rptr. 892 ]. Cf. People v. Fortman (1970) 4 Cal.App.3d 495 , 497-498 [ 84 Cal.Rptr. 458 ] [cert. den. (1970) 400 U.S. 880 ( 27 L.Ed.2d 118 , 91 S.Ct. 124 )].)

In McGautha the court pointed out that Wilkinson was on notice of the existence, content and probable use of the testimony concerning the extrajudicial statements of McGautha because testimony relating to the statements was given at the preliminary examination (70 Cal. 2d at p. 785). In Aranda the court pointed out that Aranda erroneously had been denied discovery of extrajudicial statements obtained from his co-defendant by the police, and that he was entitled to such information. (63 Cal.2d at p. 527, fn. 6; and see People v. Martin (1971) 17 Cal.App.3d 661 , 671 [ 95 Cal.Rptr. 250 ].) In this case the record indicates that Freeland’s attorney, the public defender, had a copy of the police report of his Ghent’s statement because, when the officer was examined on voir dire, he used it to bring out that his client first stated that he was searching for tools. It may be assumed that when the public defender withdrew as the attorney for Epps and was replaced by separate appointed counsel over seven weeks before the trial, he advised new counsel of the available information. In any event, appellant’s counsel, having heard the same testimony elicited from the officer on voir dire, had ample opportunity at that time to request deletion of part, or exclusion of all of the testimony concerning the extrajudicial statement of Freeland and failed to do so. As stated in McGautha, having failed to exercise his right to bar the introduction of what he deems to be incriminating extrajudicial statements of his codefendant, he cannot now complain of any resulting prejudice.

—C—

In Harrington v. California (1969) 395 U.S. 250 [ 23 L.Ed.2d 284 , 89 S.Ct. 1726 ], the court reviewed a conviction which had been affirmed in People v. Bosby (1967) 256 Cal.App.2d 209 [ 64 Cal.Rptr. 159 ] where the court, as to three defendants, had applied the rule that when the detailed confession of each shattered his own case, there was no prejudice by a violation of the Aranda rule if the confession of another referred to the complaining defendant. (256 Cal.App.2d at pp. 213-217; and see People v. Lara (1967) 67 Cal.2d 365 , 392-393 [ 62 Cal.Rptr. 586 , 432 P.2d 202 ] [cert. den. (1968) 392 U.S. 945 ( 20 L.Ed.2d 1407 , 88 S.Ct. 2303 )]; and People v. Charles (1967) 66 Cal.2d 330 , 338 and 343-344 [ 57 Cal.Rptr. 745 , 425 P.2d 545 ] [cert. den. (1967) 389 U.S. 872 ( 19 L.Ed.2d 153 , 88 S.Ct. 159 )].) As to the defendant Harrington, who was implicated by the con

The courts of this state have applied the foregoing test of harmless error to preclude reversal in the face of a claim of alleged Bruton error. (See People v. Floyd, supra, 1 Cal.3d 694 , 721; In re Whitehorn (1969) 1 Cal.3d 504 , 517 [ 82 Cal.Rptr. 609 , 462 P.2d 361 ]; In re Lara (1969) 1 Cal.3d 486 , 489-490 [ 82 Cal.Rptr. 628 , 462 P.2d 380 ]; In re Hill (1969) 71 Cal.2d 997 , 1013-1015 [ 80 Cal.Rptr. 537 , 458 P.2d 449 ] [cert. den. (1970) 397 U.S. 1017 ( 25 L.Ed.2d 432 , 90 S.Ct. 1254 ), reversed as to one defendant on other grounds In re Saunders (1970) 2 Cal.3d 1033 , 1049-1050 ( 88 Cal.Rptr. 633 , 472 P.2d 921 )]; People v. Flores, supra, 68 Cal.2d 563 , 568; People v. Sosa (1972) 26 Cal.App.3d 514 , 518-519 [ 103 Cal.Rptr. 58 ]; People v. Martin, supra, 17 Cal.App.3d 661 , 670-672; People v. Wade (1971) 15 Cal.App.3d 16 , 23-24 [ 92 Cal.Rptr. 750 ] [cert. den. (1972) 405 U.S. 925 ( 30 L.Ed.2d 797 , 92 S.Ct. 972 )]; People v.

In Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ] [rehg. den. (1967) 386 U.S. 987 ( 18 L.Ed.2d 241 , 87 S.Ct. 1283 )], the court observed, “Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law hamlesserror rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.” (386 U.S. at p. 24, fn. omitted [17 L.Ed.2d at p. 710]. See also People v. Gardner (1968) 266 Cal.App.2d 19 , 25-27 [ 71 Cal.Rptr. 568 ].) (3) Appellant asserts that the prosecution has failed to show that the error was harmless beyond a reasonable doubt. In view of the uncontradicted testimony concerning the prior relationship between Epps and Freeland, the testimony of Epps’ desire to secure certain chemicals, the total circumstances surrounding the defendants’ apprehension and arrest, and the absence of any evidence tending to explain their presence at that time and place, this court has no hesitancy in concluding that the error, if any, in permitting the jury to consider the admissions of Freeland, under a limiting instruction, was harmless beyond a reasonable doubt.

The only countervailing consideration is the fact that the jury took almost nine and one-half hours of deliberation on two days to arrive at a verdict. During this period the jurors not only called for the exhibits, but also requested further instructions on three occasions. Reference to the inquiries on these occasions reveals that the issue involved was the distinction between burglary and attempted petty theft (see part III below). It cannot be assumed that the jury were perplexed about the relationship between appellant and his codefendant as revealed by the statement. Rather it appeared that they were confused as to the effect of the established and admitted entry.

No reversible error is found in the manner of admitting the testimony concerning the codefendant’s statement.

The failure of appellant’s attorney to raise either a Bruton or an Aranda objection at the trial gives rise to the shopworn contention that he

It is patent, however, that appellant has failed to make out a case for relief because of his trial attorney’s failure to object. Ibarra states: “It is counsel’s duty to investigate carefully all defenses of fact and of law that may be available to the defendant, and if his failure to do so results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled. [Citations.]” (60 Cal.2d at p. 464.) Appellant contends that the interposition of the Miranda objection, the failure to object on Bruton grounds, and the delayed hearsay objection and request for a limiting instruction demonstrate that defendant was unfamiliar with what was then a well established exclusionary rule. He also contends that there was no tactical advantage to be gained by failure to exclude the statement.

Ibarra requires that an omission, even when predicated upon unawareness of a rule of law basic to the case, must reduce the trial “to. a farce and a sham.” (60 Cal.2d at p. 466.) In People v. Floyd (1970) 1 Cal.3d 694 [ 83 Cal.Rptr. 608 , 464 P.2d 64 ], the court pointed out, “It is not sufficient to allege merely that the attorney’s tactics were poor, or that the case might have been handled more effectively. [Citations.] [1[] Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of-any knowledgeable choice of tactics.” (1 Cal.3d at p. 709. See also People v. McGautha, supra, 70 Cal.2d 770 , 783-784; People v. Hill (1969) 70 Cal.2d 678 , 688-691 [ 76 Cal.Rptr. 225 , 452 P.2d 329 ] [cert. den. (1972) 406 U.S. 971 ( 32 L.Ed.2d 671 , 92 S.Ct. 2416 )]; People v. Simms, supra, 10 Cal.App.3d 299 , 313-316; and People v. Doebke (1969) 1 Cal.App.3d 931 , 937-938 [ 81 Cal.Rptr. 391 ].)

It cannot be assumed that appellant’s trial counsel was ignorant of the Bruton and Aranda rules. He might have believed as set forth above (part I-A), and as stated by the deputy district attorney at the trial, “I don’t believe there was anything in the testimony of the officer which would implicate the co-defendant.” Furthermore, there was some tactical advantage in having the testimony concerning Freeland’s statement before the jury, particularly with a limiting instruction. Appellant’s counsel could, therefore, on the one hand, allude to Freeland’s original statement that he was attempting to get some tools to repair the car, and on the other hand, point out that Freeland’s admission of entry for drugs could not bind his client.

Appellant requested 30 instructions, 29 of which were listed by reference to CALJIC numbers, and one composed on the basis of Evidence Code section 1235. The court gave all but one of those instructions. No complaint is made of the refusal to give that instruction. Included was a request for CALJIC Instruction No. 17.10, which deals with lesser included offenses. (See Pen. Code, § 1159; People v. St. Martin (1970) 1 Cal.3d 524 , 532-533 [ 83 Cal.Rptr. 166 , 463 P.2d 390 ]; People v. Cooper (1968) 268 Cal.App.2d 34 , 36-39 [ 73 Cal.Rptr. 608 ]; People v. Morrison (1964) 228 Cal.App.2d 707 , 712-714 [ 39 Cal.Rptr. 874 ]; and Witkin, Cal. Criminal Procedure (1963) § 480, p. 486 and §§ 541-543, pp. 552-555.) It was accompanied by a notation “(Trespass and Petty Theft).” The information charged appellant and his codefendant with “Burglary, a violation of Section 459 of the Penal Code of the State of California, in that on or about the 27th day of March, 1971, in the County of Alameda, State of California, they entered a building, to wit: the business establishment of Bryant Laboratory located at 880 Jones Street in the City of Berkeley, County of Alameda, State of California, with intent to commit theft.” The court properly refused to give an instruction on criminal trespass as a lesser included offense. (People v. Harper (1969) 269 Cal. App.2d 221 , 222-223 [ 74 Cal.Rptr. 859 ]; People v. Lopez (1967) 249 Cal.App.2d 93 , 102-103 [ 57 Cal.Rptr. 441 ]; People v. Mitchell (1966) 239 Cal.App.2d 318 , 327-328 [ 48 Cal.Rptr. 533 ]; and People v. Harris (1961) 191 Cal.App.2d 754 , 757-759 [ 12 Cal.Rptr. 916 ].)

The court defined burglary to the jury in the language of CALJIC Instruction No. 14.50, and, as requested,by appellant, followed this with Instruction No. 14.56, to the effect that the offense if committed was second degree as a matter of law, and Instruction No. 17.00 regarding several defendants. The court then gave a general instruction on attempt in the language of Instruction No. 6.00, and followed it with the following instruction: “Every person who attempts to steal, take, carry, lead or drive away the personal property of another with the specific intent to deprive the owner permánently of his property, is guilty of theft by larceny. In this case it is known as attempted petty theft.” The next instruction was in the language of Instruction No. 17.10, and concluded: “The offense of burglary, with which each defendant is charged, necessarily includes the lesser offense of attempted petty theft.” The jury were given three verdict forms with respect to each defendant, and they were told they could find

In so doing the court gave the defendants more than their due. As early as 1866 it was established that larceny, if committed at the same time as a burglary, is not an included offense of the burglary. In People v. Garnett (1866) 29 Cal. 622 the court stated, “Our criminal code . . . [Stats. 1850, ch. 99, § 58, p. 235, as amended Stats. 1858, ch. 245, § 1, p. 206, reading similarly to Pen. Code, § 459] describes no such offense as burglary complicated and mixed with another felony. It describes simple burglary only. Hence under our practice burglary cannot, more than any other offense, be united in the same indictment with another offense. If in addition to the burglary, another offense has been committed, it must be made the foundation of a separate indictment.” (29 Cal. at p. 626.) The trial court instructed on larceny when the jury appeared deadlocked on the issue of burglary. The defendant’s conviction of larceny was reversed. The court further observed, “Larceny is not necessarily included in burglary, like manslaughter in murder, within the sense of the statute; on the contrary it is no part of it. The offense of burglary is complete without any larceny being committed. The relation contemplated by the statute does not exist between burglary and such other felony, if any, as may chance to be committed by the defendant at the same time.” (Id. at p. 628.) These principles have been uniformly followed. (See People v. Curtis (1888) 76 Cal. 57 , 58 [ 17 P. 941 ] [overruled on the issue that erroneous conviction of a lesser offense was not an acquittal of the charged major offense in In re Hess (1955) 45 Cal.2d 171 , 176 ( 288 P.2d 5 )]; People v. Devlin (1904) 143 Cal. 128 , 130 [ 76 P. 900 ] [questioned on suggestion that one can be punished for both burglary and the larceny attendant thereto in In re Dowding (1961) 188 Cal.App.2d 418 , 423-424 ( 10 Cal.Rptr. 392 ); and see Pen. Code, § 654; and People v. McFarland (1962) 58 Cal.2d 748 , 760-763 ( 26 Cal.Rptr. 473 , 376 P.2d 449 )]; People v. Snyder (1925) 74 Cal.App. 138 , 141-142 [ 239 P. 705 ] [disapproved on double punishment issue, People v. McFarland, supra, 58 Cal.2d 748 , 762]; People v. Shaffer (1927) 81 Cal.App. 752 , 754-755 [ 254 P. 666 ] [subject to similar criticism on double punishment]; In re Howe (1955) 135 Cal.App.2d 604 , 605 [ 287 P.2d 510 ]; and People v. Hamilton (1967) 251 Cal.App.2d 506 , 510 [ 59 Cal.Rptr. 459 ].) Unless estopped by having requested the instruction, appellant, if he had been convicted of attempted petty theft, would have been entitled to his release. (In re Howe, 135 Cal.App.2d 604 , 606-607 [ 287 P.2d 510 ].)

After the jury had been out 15 minutes it was furnished certain exhibits it requested. Fifty minutes later, shortly before noon, the foreman sent out a note reading, “Requesting-Rereading of Petty Theft & Burglary. . . .” No

The following morning, after deliberating for an hour and 35 minutes, the jurors sent in a second note reading, “. . . if Guilty-do we come to lesser charge if not agreed upon whitch [sic] charge. . . .” The clerk’s minutes reflect that thereafter “. . . all counsel in chambers with court, not reported, note from jury is discussed (no jurors or defendants present in chambers). All counsel agree as to how Court will reply to note.” The jurors were brought in some 20 minutes after the note was received, and the court, after ascertaining that the jurors did not want the foregoing four instructions read again, instructed them as follows: “All right, then this is the situation. You can only bring in a verdict that all twelve jurors agree to individually as to each defendant. You can only bring in a verdict that all twelve jurors agree to individually as to each defendant.” The foreman indicated that the judge’s remarks answered the question, but one juror interjected to request a reading of an undisclosed instruction, and she, in turn, was interrupted by a second juror who asked, “The question is how far up or down can we go?” The court then replied, “You can all agree as to a not guilty verdict as to each defendant. You can all agree to the charge, of burglary as to each defendant, or you can all agree to the charge of the lesser included, attempted petty theft. But in any event, if all twelve of you cannot agree to a single verdict as to each defendant, you don’t have a verdict.”

The juror who had been previously interrupted again spoke up, and at her request the court gave the standard instruction on reasonable doubt (CALJIC No. 2.90) supplemented by a statement, “Reasonable doubt is doubt based on reason.” Thereupon, a third juror spoke up and joined the previous juror in suggesting they wanted something else read. At this point in the proceedings appellant’s attorney sought the ear of the judge, and, following an unreported conference between court and counsel, the judge announced: “Counsel have suggested, and it is true that all the questions that are asked by the jury should come through the foreman, because otherwise we would have a jury deliberation practically in open Court. Why don’t you go back to the jury room, and if you have any further questions you can reduce them to writing, and then I can confer with counsel. We get in a very ticklish position here if I start to ad-lib and help you with your questions, I can create more confusion than there

The foreman then requested a rereading of the burglary charge and the petty theft charge. The court then read the four instructions which it had read the previous afternoon, but in reading the above-quoted instruction on attempted petty theft it inadvertently inserted the word “grand” so the instruction read, “Every person who attempts to steal, take, carry, lead, or drive away the personal property of another with the specific intent to deprive the owner permanently of his property, is guilty of a theft by grand larceny. In this case it is known as attempted petty theft.” (Italics added.)

The jurors then deliberated, with an interruption for another two-hour lunch break, for two hours and 20 minutes and then sent in a note reading “. . . Instruction on Petty Theft. ...” A few minutes later the jurors were returned to the courtroom, and were told by the court: “All right. This is entitled theft by larceny, and our law says that whenever any law or statute of this State refers to or mentions larceny, embezzlement or stealing, said law or statute shall hereafter be read and interpreted as if it were theft, or the word ‘theft’ were substituted therefor. So for your purposes, larceny and theft are synonymous.

“Definition: Every person who attempts to steal, take, carry, lead, or drive away the personal property of another, with the specific intent to deprive the owner permanently of his property, is guilty of theft by larceny. In this case it is known as attempted petty theft.” At the request of the foreman the part following “Definition” was reread, and the court added: “Rather than petty theft as such, it just merely puts the word ‘attempted’ in front of it.”

After one juror conferred with the foreman the latter asked, “. . . Anything outside of that would be some other charge?” and the court replied, “Yes.” After the jury retired, appellant’s counsel suggested that the court’s last answer failed to indicate that anything outside of attempted petty theft could be no offense at all, as well as some other charge. Counsel for Free-land joined in the objection, the report of the remarks was read back, and at the suggestion of the court appellant’s counsel drafted an instruction to be passed to the jury. It read, “The judge instructs you that if it is not petty theft it may be some other charge or no crime at all.” After further discussion, the prosecutor suggested that the instruction be worded, “If it is

Appellant contends the foregoing record discloses that the instructions given by the trial court were contradictory, confusing and misleading to the jury, and contained a misstatement of law. “The defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and regardless of how overwhelming the evidence of guilt may be, the denial "of such a fundamental right cannot be cured by section 13 of article VI of the California Constitution, for the denial of such a right is in itself a miscarriage of justice within that section. [Citations.]” (People v. Wilson (1967) 66 Cal.2d 749 , 764, fn. omitted [ 59 Cal.Rptr. 156 , 427 P.2d 820 ], See also People v. Cooper, supra, 268 Cal.App.2d 34 , 37, 39-40.) In this case the question is not whether all material issues were left to the jury. It in fact appears that at appellant’s request, and to his benefit, the jury were improperly requested to determine the issue of whether the defendants had committed the offense of attempted petty theft. The theory upon which these instructions were given is not set forth by appellant or respondent. In the absence of a record of the argument of counsel it may be assumed that there was some concept of no breaking and entering, or a concept of an entry without the requisite intent and then the development of the requisite intent to steal property which was found within. In any event the alleged contradictory, confusing and misleading nature of the instruction is not a matter of constitutional error. Therefore, the following principles are applicable.

“Error in an instruction which ordinarily would not prejudice the rights of a defendant may justify a reversal of the judgment where the jury is misdirected or misled upon an issue vital to the defense and the evidence does not point unerringly to the guilt of the person accused. [Citation.] The question for an appellate court under these circumstances is whether, considering the entire record, the challenged instruction may have prejudiced the convicted person’s rights. (Const., art. VI, § a4z.) If it is probable that in the absence of a misleading instruction the jury would not have returned the verdict complained of, then there has been a miscarriage of justice within the meaning of the constitutional provision. [Citations.]” (People v. Rogers (1943) 22 Cal.2d 787 , 807 [ 141 P.2d 722 ]. See also People v. Jenkins (1969) 275 Cal.App.2d 545 , 551 [ 80 Cal.Rptr. 257 ]; CannisY. Di Salvo Trucking Co. (1952) 111 Cal.App.2d 893 , 898

On the other hand it is recognized, “In California, an erroneous refusal to give a requested instruction or the giving of an erroneous instruction is not reversible error unless it results in a miscarriage of justice. (Witkin, Cal. Criminal Procedure (1963) § 491, p. 497.)” (People v. Smith (1968) 265 Cal.App.2d 775 , 779-780, fn. omitted [ 71 Cal.Rptr. 557 ].) In People v. Ramirez (1969) 2 Cal.App.3d 345 [ 82 Cal.Rptr. 665 ], which both sides recognize as expressing the principle applicable to this case, the court stated: “. . . since the presumed error was in the instructions to the jury, the test to be applied is that of article VI, section 13 of our Constitution, that is, whether there has been a miscarriage of justice. ‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ (People v. Watson, 46 Cal.2d 818 , 836. . . .)” (2 Cal.App.3d at p. 357. See also People v. Laster (1971) 18 Cal.App.3d 381 , 393 [ 96 Cal.Rptr. 108 ]; People v. Nichols (1967) 255 Cal.App.2d 217 , 223 [ 62 Cal.Rptr. 854 ]; and Cannis v. Di Salvo Trucking Co., supra, 111 Cal.App.2d 893 , 898.) In People v. Nichols, supra, the court stated, “To determine whether error has been committed this court must consider jury instructions as a whole. [Citations.]” (255 Cal.App.2d at p. 222.)

Appellant asserts that the fact that the jury requested three readings of the instructions demonstrates that they were confusing. It is equally arguable that the confusion was in the mind of one or more jurors as an attempt was made to apply the instructions to the evidence in the case. The court’s remarks after being subjected to requests from several jurors do not, as urged by appellant, demonstrate that the instructions were confusing, rather, those remarks express the court’s fear that a lack of orderly procedure in requesting instructions would, if unchecked, perhaps lead to remarks which might prove confusing.

The instruction under which the court engrafted language of attempt upon the normal definition of theft by larceny (see CALJIC No. 14.02) does have somewhat of an inherent contradiction in that it may literally be read as defining an attempt to steal as the equivalent of larceny. The interposition of the word “grand” on one rereading and the statement “This is entitled theft by larceny” on another occasion admittedly would not lessen the confusion. Nevertheless, the instruction must be considered with others as a whole, i.e., with the instruction on attempt, the concluding phrase “In

Finally, appellant asserts that the court’s answer to the ultimate question asked by the foreman, and its failure to give the requested ameliorating instruction caused prejudicial error because it created a conflict between the presumption of innocence, and what appellant interprets as a direction by the court to find the defendants either guilty of burglary or attempted petty theft. It is true that the court’s bare statement, “Anything outside of attempted petty theft would be some other charge” could be interpreted as “Anything outside of petty theft would be burglary.” Nevertheless, the jurors were instructed on several occasions that there were three possible verdicts for each defendant. They had the verdict forms before them. If the question is interpreted as, “Any wrongdoing outside of attempted petty theft would be some other charge?”, the court’s affirmative answer would not be deemed erroneous or prejudicial. The jurors certainly knew that the prosecution had to establish either burglary or attempted petty theft by the standard of proof required in criminal cases. If, as suggested by appellant, they merely wanted to punish appellant for a general wrongdoing it is fair to assume that they would have selected the lesser offense. The court’s remarks did not interfere with that choice. Moreover, because of the state of the evidence, and the fact that the confusion, if any, was engendered by appellant’s request for instructions on the lesser offense, no prejudicial error is found.

In the discussion concerning the last question and answer the judge remarked: “All I can see is that the jury apparently feels that there was something done there at that place that shouldn’t have been. Maybe it was destroying personal property of another, or malicious mischief, or something like that. That is what they are thinking about, and that is what they mean by ‘some other charge’. I don’t think that the foreman or they had burglary in mind at all. It looks to me like they have boiled this down to a question, they are arguing whether or not there was an attempt at petty theft, and if they are saying that this definition that I have read them, the facts don’t fit it, therefore it would be something else, not necessarily burglary by any means. You would think by the request for this instruction

The judgment is affirmed.

Molinari, P. J., and Elkington, J., concurred.