Filed 6/22/17 P. v. Oerding CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER DOUGLAS OERDING,

Defendant and Appellant.
C081206

(Super. Ct. No. 14F01659)





Appointed counsel for defendant Christopher Douglas Oerding has asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
FACTS AND PROCEEDINGS
In the morning hours of March 8, 2015, Gregory Benson Johnson and his wife, Michelle, left their house to go for a walk with their German Shepherd around the neighborhood. Because Gregory and Michelle share the same surname, we will refer to them by their first names. While on their walk, the Johnsons noticed police cars parked near their home.
They returned home about 30 minutes later and walked in the front door. Inside, Gregory went right and Michelle went left, down a hallway, with the dog. As she walked down the hallway, the dog began to growl then ran out the back door. Michelle looked into their office where she saw defendant going through their desk and drawers. Michelle asked defendant what he was doing; he told her to get out of the way, he did not want to hurt her.
Gregory, hearing a man’s voice, went to investigate, and found defendant in one of the bedrooms. At this point, Michelle ran outside and began to scream for the police officers she had seen on their walk. As Gregory approached defendant, defendant rushed past him and ran for the front door. Gregory saw defendant was carrying Gregory’s backpack.
Gregory went after defendant and backed him up against a window so they were face-to-face. Gregory tried to kick defendant but defendant grabbed Gregory’s foot and knocked him off balance.
The next thing Gregory knew, he was flat on his back and his glasses were in the doorway. He momentarily lost consciousness; when he came to, he was in a lot of pain. Gregory started to get up but defendant punched him, knocking him out for another few seconds.
As Gregory tried to get up a second time, defendant ran over him and ran toward the back door. Gregory went out the front door and began yelling for the police.
The police arrived, guns drawn, just as defendant ran out the front and past Gregory. The police arrested defendant and found Gregory’s backpack on the front porch. Inside the backpack, the police found several rounds of ammunition and a small safe that belonged to the Johnsons. The police searched defendant and found jewelry in his pants pocket. The Johnson’s home also had been ransacked; drawers were emptied and the mattress lifted.
Defendant identified himself to the police as a man with the last name “Steed”; he had a Georgia’s driver’s license with the same name.
The People charged defendant with two counts of robbery (Pen. Code, § 211; undesignated section references are to the Penal Code) and a single count of burglary (§ 459). The People also alleged defendant was previously convicted of two strike offenses (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C)) and two serious felonies (§ 667, subd. (a)).
Jury trial began on November 9, 2015. Defendant testified on his own behalf. In sum, he testified that he was using drugs on March 7, 2015, and March 8, 2015. On the morning of March 8, 2015, he said he was riding his bike through the Johnson’s neighborhood and was being chased by a man with a bat in a Buick. He went into the Johnson’s home looking for help. He walked around the house to calm himself down and found some valuables and a backpack.
After his arrest, defendant wrote the Johnsons a six-page letter apologizing for the break-in and said he was desperate for money to pay bills.
After deliberating for approximately two days, the jury informed the court it could not reach a verdict on the two robbery charges. The trial court declared a mistrial as to those two counts. The jury, however, did find defendant guilty of burglary.
A bifurcated trial followed wherein the People presented evidence that on March 23, 2004, defendant was convicted of first degree burglary (prior conviction number one) and on August 1, 2006, was convicted of vehicular manslaughter (prior conviction number two). After deliberating, the jury returned with two signed verdict forms finding both allegations true. On the verdict form for prior conviction number one, however, the jury drew a line through the words “Code section 667(b)-(i) and 1170.12 and 667 (a).”
When the court read the modified verdict form, the following colloquy took place: “THE COURT: . . . Uh, Mr. . . . (Juror No. 1), I notice you struck something out of the verdict form.
“JUROR 1: Yeah. Because reading through the material that you gave us, that part on the bottom did not--had no reference to the--the manslaughter. They--on both pages is [sic] giving you the same.
“THE COURT: Okay. Well, this actually did not relate to--this particular finding that you have here actually is just a description of how that will be treated this time. So you did not need to actually make--
“JUROR 1: We were we were actually looking--for looking at it as a reference
to--
“THE COURT: Okay. All right. But let me just clarify for the record.
“Counsel, why don’t you approach.
“(Sidebar conference.)
“THE COURT: Ladies and gentlemen, I’m going to have to send you back. I will ask that you return at 1:45 today. I will send you back, because of the nature of the way this form is filled out.
“JUROR 12: Can we just reprint it?
“THE COURT: What’s that?
“JUROR 12: Can we just reprint it?
“THE COURT: Yeah. We can do that. But you need to return to the jury deliberation room to do this.
“Please do not strike anything from the verdict forms.
“All right.
“We’ll see you guys back here at 1:45.
“(Proceedings held outside the presence of the Jury.)
“THE COURT: Counsel, let me just for the record indicate, uhm, the jury modified the verdict form. And because of the modification, I’m just a little uncomfortable with the modification. Basically what they deleted, they deleted the descriptive part that made the conviction a serious or--a serious felony.
“I would haven [sic] a problem with that if it had been a charge like a 211 that by only definition it would be a serious felony.
“But because it reads, uhm, just burglary and not residential first degree burglary in the form, I think, just because of the nature of this case we should do it right. That way there won’t be any question as to the fact that the jury found true not a second degree burglary but a first degree burglary.
“[Defense Counsel]: What was the section?
“THE COURT: Just the [sections] 667[, subdivisions] (b) through (i)[, and] 1170. And their confusion was that they looked at the original charging documents from 2004 and thought that you needed that language in the original charging documents because they didn’t do the same thing with respect to the other verdict form.”
“When the jury returned later that day, the court addressed them: “Uh, I am going to send you back in to further deliberate on the issue. You have--we received your verdict as it relates to prior conviction two. However, with respect to prior conviction one, the modification to the verdict form created an ambiguity that left the Court feeling the necessity for further clarification.
“So I am resubmitting a slightly different verdict form to you.
“Again, please don’t modify the language in the verdict form.
“But I do want to remind you of what your responsibilities are in terms of what it is you are doing in attempting to find that the People have established as it relates to the prior conviction. And it’s contained in instruction 3107.
“Your job is to determine only whether or not the defendant has been convicted, as it relates to prior conviction one, of a violation of Penal Code section 459, first degree burglary on--I think it was March--
“JUROR 1: March 1st, 2004.
“THE COURT: Correct.
“In the Superior Court of Placer County. That is the only determination that you are to make.
“The other language in there is--has legal significance only to the Court and not to the jury.
“All right.
“So we’ll send you back out with a new and revised verdict form. Hopefully, we’ll see you some time later today.”
The jury returned minutes later with a signed verdict form finding true the allegation that on March 23, 2004, defendant was convicted of first degree burglary.
Defendant then moved to strike his prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court denied the motion and sentenced defendant to 25 years to life in state prison, with an additional determinate term of 10 years. The court awarded defendant 1,358 days of presentence credit and ordered him to pay various fines and fees.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant filed a supplemental brief raising two claims on appeal. He contends: (1) the trial court erred in failing to instruct the jury on grand theft as a lesser included offense of burglary; and (2) the trial court “contaminated” the jury during deliberations on defendant’s prior convictions, thus rendering them unable to reach an unbiased verdict. Neither claim has merit.
First, as noted by the trial court, grand theft is not a lesser included offense of burglary because burglary can be committed without stealing. (See People v. Tatem (1976) 62 Cal.App.3d 655, 658; People v. Bernal (1994) 22 Cal.App.4th 1455, 1458.) The trial court was, therefore, correct in refusing to instruct the jury on grand theft.
Defendant seems also to suggest the trial court should have instructed the jury on grand theft as a lesser included offense of the robbery charges. The robbery charges, however, were dismissed so even were that error, defendant suffered no prejudice as a result. (See People v. Breverman (1998) 19 Cal.4th 142, 154.)
Second, the record does not support defendant’s contention that the jury was biased by the trial court’s discussion of the modified verdict form on prior conviction number one.
In discussing the issue with the jury, the trial court did not, as defendant suggests, imply the jury now could “find [defendant] guilty of a prior conviction of 1st degree burglary without consideration of the facts with impartial scrutiny.” Rather, the court correctly explained to the jury that section 667, subdivisions (b) through (i) and section 1170.12, included in the original verdict form, were only of legal relevance to the court and were not related to any finding the jury was required to make.
That said, the court gave the jury a new verdict form eliminating those Penal Code sections and directed them to again follow their instructions and reach a verdict on whether on March 23, 2004, defendant was convicted of first degree burglary. We find no error.
In a second supplemental brief, filed in this court on March 6, 2017, defendant raises two more contentions on appeal. First, he contends the modified jury instructions relative to the burglary charge “created a mandatory presumption which unconstitutionally shifted to the defendant the burden of persuasion on element of intent. . . .”
The trial court modified the instruction on burglary by combining three separate instructions: CALCRIM Nos. 1700, 1701, and 1800. Accordingly, the jury heard the following instruction: “The defendant is charged in Count Three with first degree 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 an inhabited dwelling house or any other room within that dwelling home-- . . . of the dwelling house; and
“2. When he entered an inhabited dwelling house, he intended to commit theft.
“The crime of theft is defined as follows:
“1. A person takes possession of property owned by someone else;
“2. The property is taken without the owner’s consent;
“3. When the property is taken the person intended to permanently deprive the owner of the property permanently; and
“4. The person moved the property, even a small distance, and kept it for any period of time.
“A house is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry.
“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.” (Emphasis added.)
In so modifying the instruction, the trial court simply “eliminated the necessity to instruct on 1701”--the instruction on degrees of burglary. (CALCRIM No. 1701.) The modification did not, as defendant contends, unconstitutionally shift to defendant the burden of proving intent. On the contrary, the instruction continued to leave that burden squarely on the shoulders of the People.
In his second supplemental brief, defendant also contends he was denied his due process right to a fair trial because of the “cumulative effect of the trial court’s failure to instruct grand theft as a lesser included offense of the robbery allegation and also from the inclusion of the instruction of theft within the burglary allegation. . . .” Defendant claims these “errors” combined to create a “ ‘perfect storm’ in that the jury was influenced to improperly resolve the fact that I had committed theft by finding me guilty of burglary as it was the only instruction which included the language of theft.” Again, defendant is mistaken.
Defendant was not charged with theft. Nor is theft a lesser included offense of burglary. (See People v. Tatem, supra, 62 Cal.App.3d at p. 658; People v. Bernal, supra, 22 Cal.App.4th at p. 1458.) Accordingly, theft as a separate charge was not available for the jury’s consideration. As such, defendant was not entitled to a separate instruction on theft.
In addition, as discussed above, the jury was unable to reach a verdict on the robbery charges and they were dismissed. Thus, any error in not instructing the jury on theft as a lesser included offense of robbery was harmless. (See People v. Breverman, supra, 19 Cal.4th at p. 154.)
DISPOSITION
The judgment is affirmed.



HULL , J.



We concur:



BLEASE , Acting P. J.



BUTZ , J.