P. v. Lucas
Filed 10/16/12 P. v. Lucas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
ANTHONY WAYNE LUCAS,
Defendant
and Appellant.
E054717
(Super.Ct.No.
FWV1000278)
OPINION
APPEAL
from the Superior Court
of
County. David B.
Downing, Judge. Affirmed.
Nancy
J. King, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and James D. Dutton and
Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant
Anthony Wayne Lucas was convicted of residential
burglary. (Pen. Code, § 459.
found true the allegation that he suffered two prior strike convictions
(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), two prior serious
felony convictions (§ 667, subd. (a)(1)), and served three prior prison
sentences (§ 667.5, subd. (b)). He
was sentenced to state prison for a total term of 35 years to life. He appeals, contending the trial court erred
in refusing to instruct the jury on the lesser related offenses and to strike
his priors. Finding no errors, we
affirm.
I. FACTS
Around
9:30 a.m. on January 25, 2010, Kyle Smolinski was awakened by
someone knocking on the door to his Rancho Cucamonga
home. Believing it was a salesperson, he
ignored it. Suddenly, he heard loud
bangs as someone kicked the front door open and then entered Smolinski’s
bedroom. Smolinski identified defendant
as the person who entered his room. As
Smolinski yelled at defendant, who looked shocked, defendant ran out of the
house and drove away in his wife’s car.
Defendant’s entry and exit of Smolinski’s house was recorded on a
surveillance video. Defendant stipulated
that he was the person in the video and that the car depicted in the video in
which he drove away was registered to his wife.
Defendant
was arrested approximately nine days after the incident. He initially denied being the person who
broke into the house, even when confronted with the surveillance video. However, after being told he was being
charged with residential burglary, he responded, “‘I did not steal
anything.’†Defendant offered no reason
for being in Smolinski’s home.
Sonia
Lucas, defendant’s wife, testified that she had married defendant two
times. During the first marriage, she
had a child by another man, which ended the marriage. After remarrying defendant, they had a child
together; however, defendant remained suspicious of his wife’s actions. The two would fight over defendant’s access to
dating services and porn sites on the internet.
In response, Mrs. Lucas would attempt to make defendant jealous. Around the same time, the couple had been
looking for foreclosed or distressed properties for purchase in the San
Bernardino Sun newspaper. One morning, Mrs. Lucas decided to play a
“childish†prank. She took a random
address out of the public notices section of the paper, wrote it on a piece of
paper, drew little hearts on it, and left it on the table for defendant to
see. After defendant’s arrest, Mrs.
Lucas told the investigator about the prank.
On
cross-examination, while Mrs. Lucas was watching the surveillance video, she
asked, “‘Why did my husband do that? Why
would he do something like that?’†At
trial, Mrs. Lucas no longer had the note with the address on it. Instead, she produced a newspaper published on
September 14, 2010,
nearly eight months after the date of defendant’s offense, with Smolinski’s
address in it.
II. INSTRUCTING ON LESSER RELATED OFFENSES
According
to defendant, the only issue for the jury to decide was whether he entered
Smolinski’s house with the intent to commit a theft. During their discussion about jury
instructions, defense counsel requested instructions on trespass (§ 602.5,
subd. (b)) and forcible entry/vandalism (§ 603). The prosecution objected to instructing the
jury on forcible entry/vandalism. The
trial court observed there was no evidence why defendant forced his way into
Smolinski’s home; “[h]e ha[d] no tools, he ha[d] no bag to throw property
in.†The prosecution replied that
defendant used his body, specifically his leg, as his weapon; however, if he
did not intend to commit a theft and he was there because of jealousy, then
instructing the jury on criminal threats (§ 422) would be proper.
In
response, the court noted defendant never said anything to Smolinski that could
be considered a threat, i.e., “I’m going to kill you.†“So . . . I don’t know what the
jury will do with it. The only person
who provides a motive is Mrs. Lucas.
The motive is his anger. He
thinks she’s in there with some other guy and he kicks down the door because he
wants to find out. That’s what the
defense’s motive [is]. You never claimed
this as a 603, [defense counsel]. You want
a 603 verdict so the priors don’t kick in.
I understand that part, but you haven’t shown that either. [¶] If
the jury believes that he went there because he thought his wife was inside,
they’re going to acquit him, they’re going to give him a pass because it wasn’t
for theft. If the jury doesn’t believe
that, they’re going to convict him of burglary in the first degree. [¶]
[F]rom my looking at the evidence, I think this is all or nothing; it is
or it isn’t. There’s no lessers. It’s guilty or not guilty or hung. I don’t know about that. I think that’s where we’re at. I don’t think there’s any reasonable lesser
on these facts, given these facts.
[¶] So I’m not going to give 603
because I don’t think it applies factually.
The defense has a great argument to the jurors. ‘Hey folks, what evidence is there of
theft? It’s a theory. The D.A.’s theory. Nothing else.
Nothing more, nothing less.’ And
the D.A. gets up in rebuttal and says, ‘Folks, do you really believe Ms. Lucas
was telling the truth about the newspaper?’
. . . I don’t see any lessers. I think that’s all there is here. [¶] So
I decline to give a lesser instruction on anything. I don’t think it fits. I think that . . . the defendant’s
guilty of the greater offense or he’s guilty of nothing.â€
On
appeal, defendant contends the trial court erred in refusing to instruct the
jury on the lesser related offenses of trespassing and forcible entry
vandalism. He further claims the error
amounts to a denial of his federal constitutional right to instruction on his
defense theory such that his conviction must be reversed.
Generally,
the trial court must instruct sua sponte on general principles of law relevant
to issues raised by evidence presented at trial (People v. Blair (2005) 36 Cal.4th 686, 744); that is, “principles
closely and openly connected with the evidence adduced before the court which
are necessary for the jury’s proper consideration of the case.†(People
v. Iverson (1972) 26 Cal.App.3d 598, 604, overruled on another point in
fn. 11.) This requirement applies only
to general principles necessary for the jury’s understandings and not to
pinpoint instructions for a particular case.
(People v. Flannel (1979) 25
Cal.3d 668, 680-681.)
In
People v. Birks (1998) 19 Cal.4th
108, 136, the California Supreme Court held that a defendant has no right to an
instruction on a lesser related offense.
Birks reasoned that a lesser
included offense is subsumed by the charged crime, and as such, is a “general
principle of law†that requires instruction to the jury. (Id.
at p. 118.) However, a lesser related
offense was deemed not to be one of those general principles to warrant a
court’s duty to instruct absent a request.
(Ibid.) Birks
concluded it was up to the prosecution to charge a lesser related offense as an
alternate charge. (Id. at p. 129.) Since the
prosecution has the right to decide what charges to try, it has no obligation
to charge a lesser related offense even if supported by the evidence. (Ibid.)
Neither
the state nor federal Constitution
requires the trial court to instruct on uncharged lesser related offenses, even
if requested by the defense. (
1343; People v. Schmeck (2005) 37
Cal.4th 240, 292 [“a trial court has no duty to instruct on an uncharged lesser
related offense when requested to do so by the defendant [citation
] . . . .â€]; Hopkins
v. Reeves (1998) 524 U.S. 88, 96-97; People
v. Hall (2011) 200 Cal.App.4th 778, 782 [“The ultimate decision of whether
to give an instruction on an uncharged lesser related offense should not be
removed from the trial court.â€].) In
to instruct the jury sua sponte on a lesser related crime of trespass where
defendant was charged with burglary.
“Regardless of defendant’s legal and factual theories concerning how his
conduct may have constituted trespass, that potential crime nonetheless remains
at most a lesser offense related to (but not included in) the offense of
burglary.†(Id. at p. 1344.)
According
to the relevant case authority, regardless of whether the parties below agree
on an instruction on a lesser related offense, the trial court is only required
to give such instruction where substantial evidence adduced at trial supports doing
so. Here, the court acted appropriately
in refusing to instruct the jury on trespass or forced entry vandalism as
lesser related offenses of residential burglary, because there was insufficient
evidence that defendant’s intent in entering the residence was anything other
than an intent to steal. Although
defendant, via his wife’s testimony, attempted to posit a theory that he
entered the residence expecting to finding his wife and/or her lover, the
objective facts fail to support such theory.
Defendant used his wife’s car to go to Smolinski’s home and did not
declare who he was or why he was at the front door when knocking. Upon breaking into the home, defendant
entered the bedroom, and when confronted with Smolinski, defendant looked
“shocked†and immediately left. He did
not accuse Smolinski of being involved with Mrs. Lucas. Defendant did not try to explain why he had
broken into Smolinski’s home. Rather,
like a child caught with his hand in the cookie jar, he ran off without a word
of explanation. To have accepted
defendant’s theory that he was a jealous husband, the trial court would have
had to reject the prosecution’s evidence.
(People v. Santos (1990) 222
Cal.App.3d 723, 739.) Thus, the trial
court acted within its discretion in determining that insufficient evidence
supported instructing the jury on trespass or forced entry vandalism.
Even
if we assume the trial court erred in failing to instruct on a lesser related
offense, the error was harmless. The
Constitution of the State of California reads in part, “No judgment shall be
set aside . . . on the ground of misdirection of the jury
. . . unless, after an examination of the entire cause
. . . the court shall be of the opinion that the error complained of
has resulted in a miscarriage of justice.â€
(Cal. Const., art. VI, § 13.)
Defendant contends the failure to
give his requested instructions deprived him of his right to due process and
his right to adequate instruction on his defense theory. However, the United States Supreme Court has
expressly refrained from recognizing a constitutional right to instructions on
lesser included offenses in noncapital cases, and therefore, the California
rule of sua sponte instructions is independent of federal law. (People
v. Breverman (1998) 19 Cal.4th 142, 168-169.) Thus, the Watson
test applies when a defendant argues that reversal is warranted by a trial
court’s failing to instruct the jury on a “general principle of law.†People
v. Watson (1956) 46 Cal.2d 818 (Watson)
states that a “‘miscarriage of justice’ should be declared only when the court,
‘after an examination of the entire cause . . .’ 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.†(Id.
at p. 836.) People v. Sedeno (1974) 10 Cal.3d 703, overruled in part on another
point in People v. Blakeley (2000) 23
Cal.4th 82, 89, held that even if “an instruction on a lesser included offense
was erroneously omitted, the factual question posed by the omitted instruction
was necessarily resolved adversely to the defendant under other, properly given
instructions,†then the prejudicial effect of such failure may be deemed
harmless if it “reasonably appears from the verdict and the instructions given
that the jury rejected the evidence tending to prove the lesser offense.†(People
v. Sedeno, supra, 10 Cal.3d at p.
721.)
In
the present case, the factual question is defendant’s intent upon entering
Smolinski’s home. According to the
defense theory, defendant broke into Smolinski’s home because defendant was a
jealous husband whose wife had previously cheated on him, giving birth to
another man’s child. Thus, counsel
argued that defendant may be guilty of vandalism or trespass, but since the only
crime charged was burglary, the sole issue for the jury to decide was whether
defendant had the intent to steal. At
the conclusion of his closing argument, counsel argued that the prosecution
failed to “prove his case beyond a reasonable doubt.†Rejecting counsel’s argument and
Mrs. Lucas’s testimony, the jury found defendant had the requisite intent
to steal and found him guilty of burglary.
Based on these findings, it is not probable that defendant would have
received a more favorable result even if the lesser related instructions were
read. The jury was well within its power
to reject the prosecution’s theory of the case and acquit the defendant. Nonetheless, the jury necessarily rejected
the defense theory. For these reasons,
defendant’s contentions fail on the merits, as any perceived judicial error was
harmless.
III. MOTION TO STRIKE PRIORS
Defendant
moved to dismiss a “strike†under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. At the hearing on the motion, the trial court
indicated it would strike defendant’s 2000 burglary conviction if allowed to do
so. Defendant’s 2000 burglary conviction
involved his wife’s initial infidelity that resulted in the birth of
defendant’s stepson. Defendant thought
his wife was still having an affair with the victim, and thus, he went to the
victim’s home, saw the door open, walked in, and took the victim’s wallet. Regarding the three strikes law, the court
did not hesitate to state it did not favor the law.
said, “If I had my way, I’d strike one of the strikes and sentence
[defendant].†However, the court
recognized it was required to follow the law and that defendant was a repeat
offender. The court summarized
defendant’s criminal background:
“[Defendant] had been to prison twice before he committed the first
degree burglary in 2000, which is his first strike. [¶]
And then after that, he goes to prison in 2000, for the first. He gets out, there is a parole violation, for
what we don’t know. In May of ’07, he’s
convicted of receiving stolen property.
And while he’s out on bail on the stolen property case, he picks up the
245. And then he’s out of prison on that
case, he picked up this case. So, he is
a repeat offender for which the three strikes law was designed.â€
The
court recognized that convictions that are 20 or 30 years old may be stricken;
however, it was still required to consider whether defendant had “‘led a
blameless life’†between strikes. As for
defendant, the court observed: “Had the
defendant just committed the first degree burglary in 2000, and had no other
offense between now and this crime, I probably would strike that strike. Probably would. [¶]
But the problem is, he didn’t—he had two previous prison commitments
before it, and at least two after it, one of them being a parole
violation. [H]e hasn’t led a legally
blameless life. So, therefore, I
can’t—then I have to find whether he fell within or without the three strikes
law. Was he a person who should fall
under the three strikes law or not. And
that’s the question. That was—where by
his prospects, character and background and character outside the scheme and
spirit and to show that. He can’t show
it. I can’t show it because it doesn’t
exist.â€
Noting
that recently this court had reversed the trial court’s decision to strike a
prior and sentence the defendant to 18 years, the court observed: “My job is just to uphold the law whether I
agree or not. I don’t agree with it, but
I’ve got to uphold it. [¶] So, I cannot find . . . that
[defendant] does not fall outside the spirit of the three strikes law. By his character and prospects, and that his
many, many felony convictions occurring before and prior to the three strikes,
so it puts him well within the three strikes law that was designed to gather
up. And I can’t find a way to get him
out of it. [¶] So, therefore . . . I can’t
strike either strike. There’s no way I
can do it. So I decline to strike the
strike because I don’t think legally, on this particular fact, with
[defendant’s] character and prospects, I don’t think I can. He’s stuck with the strikes.â€
On
appeal, defendant contends the trial court erred in denying his
believed it had no discretion, (2) it mistakenly relied upon an unpublished
case from this court, and (3) the facts support striking one of defendant’s
priors. We disagree.
In
Romero, the Supreme Court held that a
trial court has discretion to dismiss three strikes prior felony conviction
allegations under section 1385. (
The touchstone of the analysis is “‘whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects,
the defendant may be deemed outside the scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of
one or more serious and/or violent felonies.’
[Citation.]†(
377 (Carmony).)
“[A]
trial court’s refusal or failure to dismiss or strike a prior conviction
allegation under section 1385 is subject to review for abuse of
discretion.†(Carmony, supra, 33 Cal.4th
at p. 375.) “[A] trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.â€
(Id. at p. 377.) However, a trial court abuses its discretion
in striking a prior conviction if it is “‘guided solely by a personal antipathy
for the effect that the three strikes law would have on [a] defendant,’ while
ignoring ‘defendant’s background,’ ‘the nature of his present offenses,’ and
other ‘individualized considerations.’
[Citation.]†(
While
it is true that “an abuse of discretion occurs where the trial court was not
‘aware of its discretion’ to dismiss†a strike prior (Carmony, supra, 33
Cal.4th at p. 378), we do not believe the court’s remarks indicate that it
misunderstood the scope of its authority.
Examining the remarks in context, it reveals the trial court believed
there could be no real doubt that defendant’s behavior fell within the spirit
of the three strikes law, after examining the relevant circumstances as pointed
out by the parties. The court
stated: “I cannot find . . .
that [defendant] does not fall outside the spirit of the three strikes
law. By his character and prospects, and
that his many, many felony convictions occurring before and prior to the three
strikes, so it puts him well within the three strikes law that was designed to
gather up. And I can’t find a way to get
him out of it. [¶] So, therefore . . . I can’t
strike either strike. There’s no way I
can do it. So I decline to strike the
strike because I don’t think legally, on this particular fact, with
[defendant’s] character and prospects, I don’t think I can. He’s stuck with the strikes.†This statement does not suggest the trial
court lacked all authority to dismiss defendant’s prior strike convictions;
rather, the court was simply acknowledging it could not dismiss defendant’s
strike priors under the law or based on its personal sympathy for defendant or
dislike of the three strikes law.
Defendant
makes much over the court’s reference to a case where this court reversed the
trial court’s decision to strike a prior on the grounds of abuse of
discretion. However, considered in light
of the entirety of the court’s statements, we conclude the trial court’s reference
to a prior case illustrates simply that it properly understood a “court’s
discretion to strike prior felony conviction allegations in furtherance of
justice is limited.†(
“[A] primary purpose of the [t]hree [s]trikes law was to restrict
judicial discretion†(People v. Garcia
(1999) 20 Cal.4th 490, 501), and “the three strikes law not only establishes a
sentencing norm, it carefully circumscribes the trial court’s power to depart
from this norm and requires the court to explicitly justify its decision to do
so.†(Carmony, supra, 33
Cal.4th at p. 378.) The record is clear
that the trial court, in making its statements, was articulating the
requirements of the law and its dissatisfaction with the sentencing strictures
laid out by the three strikes law, not conveying any lack of awareness of its
discretion to dismiss prior strikes. We
therefore reject defendant’s contention that the trial court misunderstood the
scope of its discretion to dismiss his prior strike.
As
pointed out above, defendant cannot show that the refusal to strike one of his
prior convictions was arbitrary or irrational.
Defendant has proven by his own actions that he is a repeat offender who
has been to prison several times, committed parole violations, and continued to
offend. Prior to his first strike
offense burglary in 2000, defendant had been to prison twice. Later, while out on bail in a receiving
stolen property case, defendant assaulted a peace officer, and after being
released from prison for his assault offense, he committed the current
burglary. Clearly, defendant was well
within the spirit of the three strikes law.
Accordingly, defendant has failed to rebut the “‘strong presumption’
[citation] that the trial judge properly exercised his
discretion . . . .â€
(In re Large (2007) 41 Cal.4th
538, 551.)
IV. DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] “I don’t like it. I think it’s [D]raconian. Goes way too far. And I’m entitled to my personal opinion
because this is a person, and my personal opinion is entitled. The problem is that my personal opinion
hasn’t anything to do with what I have to do as a judge.†Later on, the court continued, “The three strikes
is [D]raconian, I don’t like it. I don’t
like having to deal with it, but the law requires me to do it. But I don’t think it’s fair. I don’t think this case is worth 30-odd years
in prison. I think that’s [D]raconian. I think it’s too much. On the fact of this offense, on this case
alone, standing alone, but the problem with three strikes is exactly what it
says, punishing defendant for his background of what he had done before, such
as the new crime. That’s the problem
with it, and it’s upheld by the court and the Court of Appeals enforces it.â€
