The opinion
Filed 2/25/21 P. v. Collins CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075405
Plaintiff and Respondent,
v. (Super. Ct. No. SCD277282)
BRIAN KEVIN COLLINS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Yvonne Esperanza Campos, Judge. Affirmed.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Robin
Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff
and Respondent.
A jury convicted Brian Kevin Collins of first degree burglary (Pen.
Code,1 § 459) and found true that the alleged premises constituted an
inhabited dwelling (§ 460, subd. (a)). The court sentenced Collins to four
years in prison.2
Collins appeals, contending: (1) the trial court violated his right to a
fair trial when it admitted evidence of Collins’s flight; (2) the court had a duty
to provide the jury with a criminal trespass instruction; and (3) the court
prejudicially erred when it withdrew the instruction on attempted burglary.
We conclude these contentions are without merit and affirm.
FACTUAL BACKGROUND
Collins and a female companion entered the front entrance of the El
Cortez apartment building around 3:30 a.m. on June 16, 2018. A sign at the
front door read: “No trespassing allowed.” The couple unsuccessfully tried to
use the lobby elevator, which required an access card. They then used the
internal stairway to climb to the roof of the building. Access to the roof was
limited. Collins removed bolts and a lock to open the hatch to gain access to
the roof. Collins and his female companion smoked, drank Gatorade, and had
sex on the roof of the building.
After spending hours on the roof, Collins jumped down to the
fourteenth-floor communal terrace. He then climbed over the ledge of the
terrace, scaled the outside ledges of the building, and jumped onto the
1 Statutory references are to the Penal Code unless otherwise specified.
2 As will be discussed in detail, Collins failed to appear at a readiness
conference, and the prosecution filed a new case (case No. SCD279012)
alleging failure to appear while on supervised recognizance (§ 1320,
subd. (b)). While the court sentenced Collins to four years for the residential
burglary case, it also imposed a concurrent two year sentence for the failure
to appear case.
2
twelfth-floor apartment balcony, connected to apartment unit 1201. He
removed pins to the balcony doors on two different balconies connected to
unit 1201. Collins then moved the washer and dryer unit away from the
apartment window and forced entry into the apartment by using a broom and
a metal pole, which were located on the balcony, to shatter the apartment
window. Collins tried to climb through the small window, but severely
injured the back of his calf on the broken glass. At about 8:00 a.m., he yelled
for help while still on the balcony of unit 1201. Police responded to the scene
and found Collins on the balcony lying in a pool of blood. The resident of
unit 1201, who was away from home on the night of the burglary, did not give
Collins permission to enter his home. Collins was transported to the hospital
and later charged with residential burglary.
Collins offered exhibits during the People’s case-in-chief but offered no
affirmative evidence. Collins did not testify in his defense.
DISCUSSION
I
ADMISSION OF EVIDENCE OF FLIGHT
A. Collins’s Arguments
Collins maintains that the admission of evidence of his flight after he
was arrested rendered his trial fundamentally unfair because it forced him to
choose between his right to testify in the burglary trial and his Fifth
Amendment right to remain silent in the pending failure to appear trial.
B. Background
On July 16, 2018, the court released Collins on supervised
recognizance, over the prosecution’s objection. The following day, at the
preliminary hearing, the court held Collins to answer on the burglary charge
and bound him over for trial. At that hearing, the court ordered Collins to
3
appear for a readiness conference on August 28, 2018. Collins failed to
appear at the August 28, 2018 readiness conference, and the court ordered a
warrant, which issued on September 12, 2018. North Carolina law
enforcement officers arrested Collins on September 12, 2018, and San Diego
law enforcement officers extradited Collins from North Carolina on
September 28, 2018.
The prosecution filed a new case against Collins, alleging a violation of
section 1320, subdivision (b), failure to appear while on own recognizance
release.
The prosecution subsequently filed a motion in limine to admit
evidence of Collins’s flight to North Carolina, arguing that it proved
“consciousness of guilt[ ] and [a] desire to avoid prosecution.” During
argument on the motions in limine, Collins’s trial counsel opposed the
admission of flight evidence, arguing, “If this evidence is admitted, it may be
a situation where the prosecutor is essentially forcing Mr. Collins to express,
to say things in violation of his right to silence that has been invoked on the
other case . . . . It may essentially put this rebuttable presumption that,
look—information that he went to North Carolina, that he fled as
consciousness of guilt, it kind of leaves the jury wanting, in my experience or
opinion, explanation, as to why did he leave if it wasn’t for guilt.” Collins also
argued that admitting evidence of flight opened the door to evidence
regarding potential punishment as a reason for his flight.
The prosecutor countered that “case law and jury instructions are clear
that regardless of the reason of a defendant’s failure to appear or what they
might purport to be the reason for failing to appear, that does show a
consciousness of guilt, that it is something that can legally and lawfully be
argued by the prosecution.”
4
The trial court ruled that the flight evidence is “clearly” admissible
under the case law. As to the potential for Collins to incriminate himself on
the pending section 1320 charge, the court stated:
“[E]very defendant when they testify ha[s] to evaluate
issues related to the pros and cons of testifying [¶] . . . [¶]
defendants always have the difficult decision of deciding
whether they want to testify, given all the issues that are
out there that . . . would be asked on cross-examination. [¶]
So I don’t think that’s a legitimate basis to exclude this
evidence, which [the court] think[s] does show, potentially
can show, a consciousness of guilt. . . . [I]t’s even way more
dramatic than just leaving the scene. Here, he goes to the
opposite side of the country. So I think it is pretty
compelling probative evidence that the jury is entitled to
hear.”
At trial, a San Diego Police Department extradition officer testified
regarding Collins’s extradition from North Carolina. After Collins missed a
court date in the burglary case, the officer extradited him from a North
Carolina jail on September 28, 2018, and brought him back to San Diego to
face his criminal charges. According to the officer, Collins was “polite, helpful
and presented no problems,” during the extradition process. The court took
judicial notice of the felony minute orders showing Collins’s release on
supervised recognizance and his subsequent failure to appear in court.
During closing arguments, the prosecutor explained that the jury was
allowed to consider Collins’s flight to show consciousness of guilt and directed
the jury to CALCRIM No. 372.3 The prosecutor argued, “It’s up to you to
3 The court instructed the jury with CALCRIM No. 372, as follows: “If
the defendant fled after he was accused of committing this crime, that
conduct may show that he was aware of his guilt. If you conclude that the
defendant fled, it is up to you to decide the meaning and importance of that
conduct. However, evidence that the defendant fled cannot prove guilt by
itself.”
5
decide its importance. And his flight alone cannot prove guilt by itself. But
it’s something that you all are allowed to consider. Because what reasonable
person just flees from the jurisdiction. It goes to show guilt.”
During Collins’s trial counsel’s closing argument, counsel acknowledged
that the prosecutor correctly stated the law regarding flight, but argued that
the evidence showed different reasonable interpretations. To this end,
defense counsel suggested that the court proceedings were a “scary process”
with “a lot of information,” and “maybe [Collins] missed his court day.”
Counsel offered other alternative explanations for Collins’s flight: “Maybe he
thought he only needed to come back on October 3rd for the jury trial”;
“Maybe he’s scared because he’s innocent. Because he didn’t do what they’re
accusing him of.” Defense counsel also argued another reasonable conclusion
was that someone would be “concerned because the wheels of the system keep
spinning, even though he’s not guilty.”
C. Analysis
In the instant matter, Collins challenges the admission of evidence of
his flight out of the jurisdiction after he was charged with first degree
burglary. As a threshold matter, we observe that evidence of flight and
efforts to avoid apprehension are probative of consciousness of guilt, and
thus, typically, such evidence is admissible under Evidence Code
section 1101, subdivision (b). (People v. Neely (1993) 6 Cal.4th 877, 896-897;
see People v. Pitts (1990) 223 Cal.App.3d 606, 877 [flight is relevant because
it may demonstrate consciousness of guilt]; People v. Sherren (1979) 89
Cal.App.3d 752, 763 [failure to appear showed consciousness of guilt].) The
evidence must be substantial, meaning that it must be reasonable, credible,
and of solid value. (People v. Turner (1990) 50 Cal.3d 668, 694-695.) The
prosecution is only required to show that a reasonable jury could find that the
6
defendant fled or attempted to flee, and based on that evidence, permissibly
infer that he harbored a consciousness of guilt and a purpose to avoid being
arrested or detected. (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
“Alternative explanations for flight conduct go to the weight of the evidence,
which is a matter for the jury, not the court, to decide.” (People v. Rhodes
(1989) 209 Cal.App.3d 1471, 1477.) A trial court has a sua sponte duty to
instruct the jury on flight whenever the prosecution relies on such evidence to
show the defendant’s guilt. (§ 1127c; People v. Jurado (2006) 38 Cal.4th 72,
126.)
Here, Collins does not take issue with the admissibility of the evidence
of flight as probative of his guilt, but, instead, he frames the issue as one of
constitutional dimension.4 He therefore argues his constitutional rights were
violated when the trial court admitted evidence of his flight because he was
forced to choose between his right to testify in the burglary trial and his Fifth
Amendment right to remain silent in the subsequent failure to appear trial.
We find this argument lacks merit.
A similar contention was made and rejected in People v. Carter (1993)
19 Cal.App.4th 1236 (Carter). At the trial for one killing allegedly committed
by the defendant, evidence of a second killing was introduced to show his
intent. (Id. at pp. 1244-1247.) The defendant contended he should have been
granted immunity for his testimony with respect to the second killing
because, without such immunity, he could not testify without risking self-
4 Collins argues that the evidence of flight does not necessarily establish
that he left the jurisdiction because he believed he was guilty. Such an
argument goes to the weight of the evidence, not its admissibility. It is
beyond the role of this court to weigh evidence in the instant matter. (See
People v. Pre (2004) 117 Cal.App.4th 413, 421.)
7
incrimination in connection with a subsequent prosecution for the second
killing. (Id. at pp. 1247-1248, 1249.)
For this contention, the defendant in Carter, like Collins here, relied on
People v. Coleman (1975) 13 Cal.3d 867 (Coleman). (Carter, supra, 19
Cal.App.4th at p. 1248.) In Coleman, our Supreme Court declared a judicial
rule of evidence that upon timely objection, “the testimony of a probationer at
a probation revocation hearing held prior to the disposition of criminal
charges arising out of the alleged violation of the conditions of his probation,
and any evidence derived from such testimony, is inadmissible against the
probationer during subsequent proceedings on the related criminal
charges . . . .” unless it appeared that the probationer had committed perjury.
(Coleman, at p. 889.) This rule was necessary to ensure that the state’s
discretion in scheduling the probation revocation hearing would not be used
to gain an unfair advantage at trial, through its opportunity to “coerce self-
incriminatory testimony by scheduling the probation revocation hearing in
advance of trial.” (Id. at pp. 888-889.) As the court stated, “Because of the
inapplicability of certain evidentiary rules and the lower standard of proof
obtaining at a probation revocation hearing, the People are generally more
likely to achieve a probationer’s incarceration through the probation
revocation process than through the new prosecution and conviction. When a
probationer is deterred from testifying at his revocation hearing by fears of
self-incrimination at his subsequent trial, the People’s chances of securing his
incarceration through the revocation proceeding are further enhanced. And if
a probationer does successfully fight revocation by testifying at the hearing,
the People’s chances of securing his conviction of a new offense will have been
improved by the probationer’s having been forced, in effect, to be one of the
prosecution’s principal witnesses in its case in chief at his trial.” (Id. at
8
pp. 876-877, fns. omitted.) The risks were particularly acute because, in a
probation revocation hearing, a probationer’s best approach might be to
explain the mitigating circumstances surrounding the charged probation
violation. (Id. at p. 878.)
The court in Carter declined to extend the rule of Coleman to evidence
of uncharged—and as yet untried—other offenses. In doing so, it reasoned
that the evidence of other crimes did not implicate the policy against self-
incrimination identified in Coleman and did not present the same
opportunity for abuse. As the court noted, it was unlikely that the
prosecution’s decision to proffer evidence of the second killing was made in
the expectation that the defendant would be compelled to take the stand to
explain it. (Carter, supra, 19 Cal.App.4th at p. 1249.) In addition, “as
Coleman points out, the need for judicially fashioned immunity is reduced
where the concurrent proceeding offers a ‘high degree of procedural
protection against arbitrariness,’ and the defendant’s choice is ‘generally one
of strategy rather than desperation.’ [Citation.] Unlike a probation
revocation proceeding, fitness hearing, or child dependency proceeding, a
criminal trial is replete with procedural protections, principally the
requirement that the state prove its case to a jury and establish guilt beyond
a reasonable doubt. That protection removes the incentive to testify that was
present in . . . cases . . . in which the defendants faced serious potential
consequences if they chose not to explain their actions to the trial judge.” (Id.
at p. 1250.) Moreover, the court in Carter explained, in cases such as
probation revocation proceedings, the probationer’s best course might be to
admit misconduct to the court but emphasize mitigating factors. In contrast,
in a subsequent criminal trial, the best course might be to deny responsibility
and trust to the higher standard of proof and to the presence of the jury. “A
9
defendant contemplating whether to rebut other crimes evidence is in a
different position. In most circumstances, the choice is one of timing rather
than strategy, because the defense to other crimes evidence is unlikely to
vary from one proceeding to the next. If the defendant intends to take the
stand to deny any connection with the other [crime], that intention would not
be different in a trial in which the other crime was charged. Similarly, if the
defendant intends to admit all or part of the uncharged conduct, and submit
mitigating or excusing evidence, there is no difference in the posture of the
two proceedings which would impel a change in that strategy from one to the
next. Thus, the decision to testify in the first trial rather than the second, or
in the second but not the first, is a choice having more to do with a
calculation of the likely effect of the testimony than with a dilemma posed by
differing defense objectives at the two proceedings. . . .” (Ibid.) Accordingly,
the court concluded the dilemma the defendant faced in deciding whether to
testify in rebuttal to evidence of crimes that had not yet been tried, “though
real, [was] not of such an order as to require immunity.” (Id. at pp. 1250-
1251.)
We recognize that the question before us now is not whether Collins
should have been granted immunity if he chose to testify in response to the
evidence of his flight at the trial in the burglary case, but whether the
evidence of flight should have been admitted at all. But the policies
considered in Coleman and Carter are similar to those Collins raises here.
There is no basis to conclude the timing of trial in the two cases was the
result of an attempt to disadvantage Collins. (See Coleman, supra, 13 Cal.3d
at pp. 888-889.) At both the trial in the burglary case and the anticipated
trial in the failure to appear case, Collins would have the protection of a jury,
and the People would be required to prove his guilt beyond a reasonable
10
doubt. The procedural posture of the two proceedings was the same, and
Collins would not face the dilemma posed by differing objectives in the two
proceedings. (See Carter, supra, 19 Cal.App.4th at p. 1250.) He was not
required to disclose evidence to the People to defend himself in the burglary
case. (See Teal v. Superior Court (2004) 117 Cal.App.4th 488, 492
[inappropriate to require defendant to reveal subpoenaed materials to
prosecution].)
As noted in People v. Kiney (2007) 151 Cal.App.4th 807, 814, “[t]he
Constitution does not forbid ever requiring a defendant to choose between
competing rights; the criminal process often requires ‘ “the making of difficult
judgments.” ’ [Citation.] ‘The threshold question is whether compelling the
election impairs to an appreciable extent any of the policies behind the rights
involved.’ ” We see no such impairment here. On the record before us, we
reject Collins’s contention that the pendency of the charges in the failure to
appear case rendered evidence of flight in the burglary case inadmissible.
II
THE CRIMINAL TRESPASS JURY INSTRUCTION
A. Collins’s Arguments
Collins asserts that the trial court erred in declining to provide the jury
a criminal trespass instruction (sometimes referred to as unlawful entry), a
lesser related offense of residential burglary, because the information
charged Collins with burglary and trespass in the conjunctive. In the
alternative, Collins maintains the court had a sua sponte duty to provide the
criminal trespass instruction.
B. Background
The information charged Collins with one count of burglary in the first
degree, stating: “On or about June 16, 2018, [Collins] did unlawfully enter a
11
building occupied by another with the intent to commit theft, in violation of
Penal Code section 459. [¶] And it is further alleged that said burglary was
a burglary of an inhabited dwelling house, within the meaning of Penal Code
section 460(a).” (Capitals omitted.)
At the close of trial, Collins’s trial counsel asked the court to provide
the jury with CALCRIM No. 2932 per section 602.5.5 In support of this
request, counsel admitted that a violation of section 602.5 is not necessarily a
lesser-included offense of the charged crime, but that it could be considered.
Defense counsel stated that a trespass charge conformed to the evidence in
the case and that the defense should not be faced with an “all or nothing”
situation.
Relying on People v. Foster (2010) 50 Cal.4th 1301 (Foster) and
People v. Jennings (2010) 50 Cal.4th 616, the prosecutor objected to the
requested instruction because section 602.5 was not a lesser included offense
of residential burglary, and Collins had no federal constitutional right to
compel the court to instruct on a lesser related offense.
The court declined to give the requested instruction, finding that
trespass was not a lesser included offense of residential burglary and the
prosecution held the sole authority to charge Collins.
Collins’s trial counsel then requested that the court amend CALCRIM
No. 1700 (the burglary instruction) to specify the nature of the building
entered. Specifically, defense counsel wanted the instruction to make clear
that the building at issue was not the El Cortez building, but an apartment
5 The CALCRIM No. 2932 instruction applies when a defendant is
charged with violating section 602.5, which makes it a misdemeanor to enter
into “any noncommercial dwelling[,] house, apartment, or other residential
place” without consent.
12
unit within the El Cortez building. The prosecutor agreed, emphasizing that
the burglary charge was not based on when Collins “entered the front doors of
the El Cortez.”
With the agreement of the parties, the court provided the following
instruction:
“Under the law of burglary, a person enters a building
unit if some or part of his or her body or some object under
his or her control penetrates the area inside the building
unit’s outer boundary. [¶] A building unit’s outer boundary
includes the area inside a window screen. [¶] An attached
balcony designed to be entered only from inside of a private
residential apartment on the second or higher floor of a
building is inside a building unit’s outer boundary.”
Following defense counsel’s closing argument,6 the court informed the
jury as follows:
“[I]n our system of government with three different
branches and separation of powers, it has been left to the
executive branch to determine what, if any, criminal
charges they wish to bring. The judicial branch does not
interfere with that. [¶] Moreover, there is no constitutional
right of a defendant which would compel the opportunity to
be given to jurors, as to any other crimes that they would
have preferred to face. [¶] . . . So in this case, the People
have charged a crime. You’ll receive legal instructions and
6 During closing argument, the prosecutor focused on the evidence
establishing burglary, specifically discussing unit 1201 and emphasizing that
Collins did not have to actually commit theft, but instead, must have had the
intent to commit theft when he entered unit 1201. During his closing, in
addition to arguing the evidence did not establish all the elements of
burglary, defense counsel reminded the jury that Collins was not charged
with trespass or merely breaking a window. He also emphasized Collins was
not charged with unlawfully entering the El Cortez building or unlawfully
entering the roof. Further, defense counsel told the jury that the prosecution
was “in charge of what charges [to] bring. They have chosen burglary. They
did not choose trespass. You do not have that option.”
13
you have received legal instructions for that crime. So
whether or not any other crimes might have been possible
charges, those are not at issue because the People did not
elect to bring those charges.”
C. Analysis
A court must instruct the jury regarding a lesser-included crime sua
sponte if substantial evidence would support a guilty verdict of that lesser-
included crime rather than the charged crime. (People v. Barton (1995) 12
Cal.4th 186, 194-198.) Instructions regarding lesser related offenses are not
to be given absent the mutual assent of the parties. (People v. Birks (1998) 19
Cal.4th 108, 112-113 (Birks).)
Here, Collins maintains the trial court was required, “under the unique
facts of this case,” to sua sponte provide the trespass instruction because
trespass was a lesser included offense of the burglary. It is not. (See
People v. Taylor (2010) 48 Cal.4th 574, 622 (Taylor) [“Trespass is a lesser
related crime of burglary”]; Foster, supra, 50 Cal.4th at pp. 1343-1344
[finding that because “trespass is a lesser related offense, not a lesser
included offense, of burglary,” the court had no sua sponte duty to deliver the
instruction].)7 Further, trial courts may instruct on lesser related crimes
only if both parties agree or one party fails to object. (See Birks, supra, 19
7 Both Taylor and Foster cite to Birks, supra, 19 Cal.4th 108 for the rule
that trespass is not a lesser included offense of burglary. (See Birks, at
p. 118, fn. 8 [“It appears well settled that trespass is not a lesser necessarily
included offense of burglary, because burglary, the entry of specified places
with the intent to steal or commit a felony (§ 459), can be perpetrated without
committing any form of criminal trespass [Citations.]”].) In Birks, the court
was applying a statutory elements test to determine if burglary was included
in robbery. (Ibid.; see People v. Shockley (2013) 58 Cal.4th 400, 404
(Shockley) [“ ‘Under the elements test, if the statutory elements of the greater
offense include all of the statutory elements of the lesser offense, the latter is
necessarily included in the former.’ ”].)
14
Cal.4th at pp. 112-113, 132.) To conclude otherwise would infringe on the
prosecution’s sole authority to decide what charges to file and would violate
the separation of powers. (Id. at p. 134.)
In the instant matter, the prosecutor objected to the giving of the
trespass instruction. We are bound to follow Birks. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Because the prosecution
did not agree to give the jury a trespass instruction, and trespass is a lesser
related crime of burglary, the trial court properly refused Collins’s request.
Nevertheless, Collins argues here that the trial court erred by not
giving the trespass instruction under the “accusatory pleading” test. Under
this test, “ ‘if the facts actually alleged in the accusatory pleading include all
of the elements of the lesser offense, the latter is necessarily included in the
former.’ ” (Shockley, supra, 58 Cal.4th at p. 404.) To this end, he contends
“the plain language of the accusatory pleading charged [him] with unlawfully
entering a building,” and, as such, “he was entitled to the instruction on
unlawful entry upon his request, as a matter of constitutional right.” In
other words, Collins contends trespass is a lesser included offense of the
burglary under the “accusatory pleading” test because of the charging
language in count 1 of the information. We disagree.
On the one hand, residential burglary is the entry of a dwelling with
the intent to commit a felony. (§§ 459 & 460, subd. (a).) Criminal trespass,
on the other hand, is the entry of a residence without the owner’s consent.
(See § 602.5, subds. (a) & (b).) In the crime of burglary, it is the defendant’s
felonious intent, not the absence of consent or permission, that renders an
entry unlawful. (See People v. Salemme (1992) 2 Cal.App.4th 775, 780
[noting the “ ‘law . . . is that one [who enters a structure with the intent to
15
commit petty theft or a felony] may be convicted of burglary even if he [or
she] enters with consent,’ ” as long as he or she does not have a possessory
right to enter].)
We thus independently conclude the words “unlawfully enter” are not
synonymous with the words “enter without consent,” as Collins contends. In
short, count 1 of the information did not allege Collins “unlawfully” entered a
building occupied by another “without the owner’s consent.” Instead, as
summarized ante, count 1 alleged Collins “did unlawfully enter a building
occupied by another with the intent to commit theft . . .” Under the
allegations in the information, it was Collins’s intent to steal that made his
entry unlawful, not the owner’s lack of consent.
Because the information did not allege a trespass under the accusatory
pleading test, the court was not required to instruct on attempted trespass as
a lesser included offense of attempted burglary. (See Birks, supra, 19 Cal.4th
at p. 118, fn. 8 [noting it is “well settled that trespass is not a lesser
necessarily included offense of burglary because burglary . . . can be
perpetrated without committing any form of criminal trespass,” even when
the burglary allegations provide that the defendant “ ‘did willfully and
unlawfully enter a commercial building . . . with intent to commit larceny and
any felony’ ”].)
In summary, the trial court did not err in refusing to give the trespass
instruction.
III
THE ATTEMPTED BURGLARY INSTRUCTION
A. Collins’s Argument
Collins insists the trial court committed prejudicial error when it
withdrew a jury instruction on attempted burglary before juror deliberations.
16
B. Background
During the jury instruction conference, neither party requested an
attempted burglary instruction. However, during oral instruction to the jury,
which followed closing arguments, the court, on its own accord, recited the
attempted burglary instruction, CALCRIM No. 460. Outside the presence of
the jury, the court addressed the parties and questioned whether the
attempted burglary instruction was needed. Collins’s trial counsel asked the
court to send a verdict form for the attempted burglary because they could
not “unring the bell.” The prosecutor objected to the instruction based on a
lack of supporting evidence. To this end, the prosecutor noted that
CALCRIM No. 1700 correctly stated burglary is committed if the defendant
intended to commit theft, and it need not be shown that a theft was actually
committed. The court responded, “[T]his is where I got sidetracked, was on
the inclusion of the theft, which is what they needed, since nothing, in fact,
was stolen.”
The prosecutor further argued that attempted burglary was not a
theory presented by either party, and neither party received an opportunity
to argue attempted burglary. She then requested the court instruct the jury
to disregard the attempted burglary instruction. The court agreed to
withdraw CALCRIM No. 460 and instructed the jury to only consider the
written instructions received.
C. Analysis
The law governing a trial court’s duty to instruct the jury on lesser
included offenses, and the standard of review that this court applies in
reviewing a trial court’s decision regarding whether to give such an
instruction, are well established:
“Instructions on lesser included offenses must be given
when there is substantial evidence for a jury to conclude
17
the defendant is guilty of the lesser offense but not the
charged offense. [Citations.] Substantial evidence is
defined for this purpose as ‘evidence sufficient to “deserve
consideration by the jury,” that is, evidence that a
reasonable jury could find persuasive.’ [Citation.] ‘In
deciding whether evidence is “substantial” in this context, a
court determines only its bare legal sufficiency, not its
weight.’ [Citation.] The trial court’s decision whether or
not the substantial evidence test was met is reviewed on
appeal under an independent or de novo standard of
review. [Citations.]” (People v. Garcia (2008) 162
Cal.App.4th 18, 24-25.)
Attempted burglary is a lesser-included offense of burglary, under the
statutory elements test. (See Birks, supra, 19 Cal.4th at p. 117.) Residential
burglary is committed when the defendant enters an inhabited dwelling
house with the intent to commit larceny or any other felony. (§§ 459, 460;
People v. Magallanes (2009) 173 Cal.App.4th 529, 535-536.) Attempted
burglary consists of two elements: (1) the specific intent to commit burglary;
and (2) “a direct but ineffectual act done toward its commission.” (§§ 21a,
459, 664; People v. Toledo (2001) 26 Cal.4th 221, 229.)
For an “entry” of a building to occur under the burglary statute,
something that is outside must go inside. (Magness v. Superior Court (2012)
54 Cal.4th 270, 273-274.) The railing of a victim’s balcony marks the outer
boundary of their apartment building under the burglary statute, and thus
intrusion onto the balcony is burglary, where the apartment was on the
second floor, or higher, and the balcony was designed to be accessed only from
within the apartment. (People v. Yarbrough (2012) 54 Cal.4th 889, 894-895.)
A burglary is complete upon the slightest partial entry of any kind, with the
requisite intent. (People v. McEntire (2016) 247 Cal.App.4th 484, 491.)
Indeed, the slightest entry by any part of the body or an instrument is
sufficient to satisfy the “entry” element of burglary. (People v. Goode (2015)
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243 Cal.App.4th 484, 489; see People v. Garcia (2004) 121 Cal.App.4th 271,
280 [An entry occurs for purposes of the burglary statute if any part of the
intruder’s body, or a tool or instrument wielded by the intruder is inside the
premises].)
Here, Collins argues the “direct but ineffectual act” supporting a jury
instruction for attempted burglary is that he entered the El Cortez building,
looking for a quick opportunity to grab something valuable. However, finding
no easy opportunity, he abandoned that intent. Collins further notes that
nothing was stolen from unit 1201, and the prosecutor did not identify any
item of value that was allegedly the target of Collins’s intended theft. This
argument, however, ignores the prosecutor’s theory of the case and the
overwhelming evidence of burglary offered at trial.
The prosecutor made it clear that she was not pursuing the burglary
offense based on Collins’s entry into the El Cortez building. Rather, the focus
was on the burglary of apartment unit 1201. As such, Collins’s intent when
he entered the El Cortez is not of the moment.
Instead, we look at the evidence offered regarding the alleged burglary
of apartment unit 1201. The record shows Collins broke the apartment unit
window using a broom and a pole, which both physically entered the
apartment and remained inside until the police arrived. Moreover, the injury
on Collins’s lower leg proved he also physically entered the apartment
window because such evidence was consistent with cutting his leg on the
broken window glass. Against this foundation, the burglary was completed.
There is nothing that Collins could point to that could be a “direct but
ineffectual act” to commit burglary. The window was broken by a pole and
broom. The unit was entered. The only way the jury could have found
Collins committed attempted burglary would have been for it to determine
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that Collins, at one point, intended to break unit 1201’s window to enter but
then did not do so. There is no evidence in the record to support that theory.
Simply put, on the record before us, this was an all-or-nothing burglary
case. The jury had to find beyond a reasonable doubt that Collins used the
broom and pole to break the window of apartment unit 1201 and had the
intent to commit theft when he did so. If not, the jury could not convict
Collins of burglary. Further, on this record, there would be no evidence to
support an attempted burglary conviction as well. The trial court did not err
by withdrawing the attempted burglary instruction.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
GUERRERO, J.
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