THE PEOPLE, Plaintiff and Respondent, v. BRIAN CHRISTOPHER JENNINGS, Defendant and Appellant.
D074352
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 11/26/19
CERTIFIED FOR PUBLICATION; (Super. Ct. No. SCD271876)
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Marvin E. Mizell and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
On appeal, Jennings contends that because the new
As discussed below, we conclude that Proposition 47 changed the definition of burglary to exclude from that offense an entry of a commercial establishment with intent to commit larceny of property with a value of $950 or less while that establishment is open during regular business hours, which conduct now constitutes the misdemeanor offense of shoplifting under
An amended information charged Jennings with five counts of burglary (
Jennings waived his right to counsel and represented himself at trial. Prior to trial, he admitted the truth of the prior conviction allegations.
Count 2.2 At trial, the prosecution presented evidence showing that on December 24, 2016, Jennings committed a burglary of the office of Planck Aero Systems (count 2). Jennings and a male accomplice took two high-end commercial drones and their two hard plastic “Pelican” carrying cases from the office. One drone had a hardware value of about $2,000 and the second drone had a hardware value of about $3,000 to $5,000. Their retail prices were between $19,000 and $25,000 each.
Count 3. The prosecution also presented evidence showing that on January 6, 2017, Jennings entered the Discount Hobby Warehouse in Kearny Mesa with a drone. The store sold radio-controlled (RC) cars, helicopters, and drones. John Weaver, the
In his defense, Jennings testified that he knew the drone was stolen when he took the drone to the hobby store. His intent was to get rid of the drone by trading it for “a small RC or something for my neighbor,” explaining that his neighbor had four children.
Verdict and sentencing. The jury found Jennings guilty on counts 2 through 6. Because the jury was unable to reach a verdict on count 1, the court declared a mistrial on, and later dismissed, that count. The court sentenced him to a four-year prison term for his count 2 burglary, consecutive 16-month terms for each of his other burglary convictions (counts 3, 4, and 5), a consecutive eight-month term for his count 6 attempted burglary conviction, and a consecutive one-year term for one of the prior prison term enhancements, for a total prison term of nine years eight months.3 Jennings timely filed a notice of appeal. On August 2, 2019, we requested supplemental letter briefs by the parties on the impact of In re E.P. (2019) 35 Cal.App.5th 792 (E.P.), which opinion was issued after the parties’ briefs were filed in this case. At oral argument on October 18, 2019, we requested supplemental letter briefs to be filed by the parties within 30 days on the application to this case of Senate Bill No. 136, which was enacted on October 8, 2019, after the parties’ briefs were filed in this case.
I
Proposition 47 and New Crime of Shoplifting
In November 2014, “the electorate passed initiative measure Proposition 47, known as the Safe Neighborhoods and Schools Act (the Act), reducing penalties for certain theft and drug offenses by amending existing statutes. [Citation.] The Act also added several new provisions, including . . .
“(a) Notwithstanding
Section 459 , shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor . . . .“(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.”
The new misdemeanor crime of shoplifting “covers conduct that previously would have been classified as a burglary.” (E.P., supra, 35 Cal.App.5th at p. 797.)
E.P. stated: “Because a person cannot commit burglary if he actually committed shoplifting, a prosecutor who wishes to convict a defendant of burglary must prove the defendant did not commit shoplifting. [Citations.] Evidence the defendant committed shoplifting disproves the elements of the charged commercial burglary. Under these circumstances, the court must instruct the jury the prosecution has the burden to disprove the element(s) of shoplifting beyond a reasonable doubt to secure a burglary conviction.”
II
Insufficient Evidence to Support Count 3 Burglary Conviction
Jennings contends the prosecution was required, in the circumstances of this case, to prove that he intended to take property with a value that exceeded $950 to prove his guilt on the count 3 burglary charge. He further contends that the prosecution did not meet that burden of proof (i.e., there is insufficient evidence to support a finding that he intended to take property with a value exceeding $950) and therefore his count 3 burglary conviction must be reversed. We agree.
A
When a conviction is challenged on appeal for insufficient evidence to support it, we apply the substantial evidence standard of review. (People v. Vines (2011) 51 Cal.4th 830, 869; People v. Johnson (1980) 26 Cal.3d 557, 578.) In so doing, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence to support the conviction. (Vines, at p. 869; Johnson, at p. 578.) Substantial evidence is evidence that is reasonable, credible, and of solid value such that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Killebrew (2002) 103 Cal.App.4th 644, 660.) We do not reweigh the evidence, resolve
B
Contrary to the People‘s assertion, the language and legislative intent of
Proposition 47‘s voter pamphlet expressed the intent that under new
Furthermore, because
C
Jennings asserts that because the prosecution did not present any evidence showing that the value of the property he allegedly intended to take on his entry into the hobby store exceeded $950, his count 3 burglary conviction must be reversed for insufficiency of evidence to support it. We agree. The People have not cited, and our review of the record has not revealed, any evidence that would support a reasonable inference Jennings intended to take property worth more than $950. Weaver, the store‘s owner, testified that he thought the man who entered his store (who Jennings later admitted was him) “wanted to get rid of [the drone].” Weaver stated that Jennings “sort of got the impression I probably didn‘t want to buy [the drone], but he did mention that maybe he could trade [it] for a model truck. You know, we sell radio-controlled trucks also. But, again, I wasn‘t interested in [the drone].” Weaver later testified that Jennings “mentioned that . . . maybe we could trade [the drone] for an RC car or a truck, actually.” Weaver elaborated: “The only thing I recall was that he was interested in an RC truck. I
Jennings testified that he knew the drone was stolen and “just want[ed] to get rid of it.” He testified that at the time “[his] thought was, when I went there [i.e., to the hobby store], if I could get something for -- because my intent was to get a small RC or something for my neighbor. Because I have a neighbor that has four kids. I wanted to get something for them to play with.” Jennings admitted he was going to take the stolen drone “to get an RC car for [his] neighbor.” However, he did not obtain an RC car for his neighbor and left the store with the drone. Jennings testified that a couple of days later, he traded the two drones for a car someone was trying to sell on Facebook. He testified that before the trade he did not know if the two drones “were valuable enough. I didn‘t know what they were worth.” After the car owner “looked at them and . . . wanted them,” the car owner agreed to trade the car for the drones.
The evidence discussed above does not support a reasonable inference that Jennings intended to take property worth more than $950 when he entered the hobby store. First, Weaver did not testify that Jennings was interested in a specific RC car or truck, much less one that had a stated price exceeding $950. In fact, Weaver did not testify regarding the price range of the RC cars and trucks that his store had for sale at the time. Absent any evidence that Jennings was interested in trading the drone for a specific RC car or truck with a price in excess of $950, there is insufficient evidence to support a reasonable inference that he intended to take property worth more than $950 when he entered the store with the drone.
Therefore, we conclude there is insufficient evidence to support a finding that when Jennings entered the hobby store he intended to trade the drone for property (i.e., an RC car or truck) worth more than $950.6 (People v. Vines, supra, 51 Cal.4th at p. 869 [substantial evidence standard of review]; People v. Killebrew, supra, 103 Cal.App.4th at
III
Jury Instruction Error
Jennings alternatively contends that if his count 3 burglary conviction is not reversed for insufficiency of evidence to support it, the trial court prejudicially erred by not instructing sua sponte on count 3 burglary that the prosecution had the burden to prove he intended to take property worth more than $950 when he entered the hobby store. Although we are not required to address this contention in light of our conclusion above that there is insufficient evidence to support Jennings‘s count 3 burglary conviction, we nevertheless elect to address this issue to provide trial courts with guidance in future similar cases.
A
The trial court instructed the jury with the standard CALCRIM No. 1700 instruction on burglary, as follows:
“The defendant is charged in Counts 1 through 5 with burglary, and count 6 with attempted burglary, in violation of
Penal Code section 459 .“To prove that the defendant is guilty of burglary, the People must prove that: [¶] 1. The defendant entered a building, room within a building, or structure; [¶] AND [¶] 2. When he entered a building, room within a building, or structure, he intended to commit theft.
“To decide whether the defendant intended to commit theft, please refer to the separate instructions that I will give you on the crime.
“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.”
However, the court‘s instruction on count 3 burglary did not include the additional language recommended when the evidence in a case supports “a defense theory” that the crime was instead
“[AND] [¶] [3A. The value of the property taken or intended to be taken was more than $950](;/.)] [¶] [OR] [3B. The structure that the defendant entered was a noncommercial establishment(;/.)] [¶] [OR] [3C. The structure was a commercial establishment that the defendant entered during non-business hours.]” (CALCRIM No. 1700, italics added.)
In the circumstances of this case, the italicized language in paragraph 3A, quoted above, would have been the appropriate language for the trial court to add to correctly instruct the jury that the prosecution had the burden to prove the value of the property Jennings intended to take when he entered the hobby store exceeded $950.
B
“The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. [Citation.] [Not instructing on the elements of a charged offense] is, indeed, very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. (U.S. Const., 6th Amend.;
Furthermore, “[i]t is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury‘s understanding of the case. [Citations.] The trial court is [also] charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant‘s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047 (Montoya).) Alternatively stated, “a trial court‘s duty to instruct, sua sponte, or on its own initiative, on particular defenses is more limited [than its duty to instruct on lesser included offenses], arising ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant‘s theory of the case.’ ” (People v. Barton (1995) 12 Cal.4th 186, 195, italics added (Barton).)
C
Jennings asserts that because the prosecution had the burden to disprove that he committed shoplifting to prove that he committed burglary in the circumstances of this case, the trial court erred by not sua sponte instructing with a modified version of CALCRIM No. 1700 that would have included paragraph 3A, quoted above, instructing the jury that the prosecution had the burden to prove beyond a reasonable doubt that the
As quoted in part I above, E.P. concluded: “Evidence the defendant committed shoplifting disproves the elements of the charged commercial burglary. Under these circumstances, the court must instruct the jury the prosecution has the burden to disprove the element(s) of shoplifting beyond a reasonable doubt to secure a burglary conviction.” (E.P., supra, 35 Cal.App.5th at p. 798.) Alternatively stated, to prove that a defendant committed
Furthermore, as we stated in part II(B) above, because
Because we have concluded a finding that the value of the property Jennings intended to take when he entered the hobby store exceeded $950 is an element of
Because, as we concluded above, there is no substantial evidence to support a finding that Jennings intended to trade the drone for an RC car or truck worth more than $950, there
D
We further conclude, as Jennings asserts, that the trial court‘s instructional error was prejudicial and requires reversal of his count 3 burglary conviction. “Not instructing on [the] elements of [an offense] is constitutional error.” (Merritt, supra, 2 Cal.5th at p. 824.) “[T]he omission of one or more elements of a charged offense . . . is amenable to review for harmless error under the state and federal Constitutions . . . .” (Mil, supra, 53 Cal.4th at p. 415.) “A trial court‘s failure to instruct the jury on all of the essential elements of the charged offense is reviewed for harmless error according to the standard set out in Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705
Based on our review of the record in this case, we cannot conclude the court‘s instructional error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) As discussed above, there was no evidence presented on the value of the property (i.e., an RC car or truck) that Jennings allegedly intended to take on his entry into the hobby store. Therefore, there was no evidence, much less “overwhelming evidence,” to support a finding that he intended to take property worth more than $950 when he entered the store. (Merritt, supra, 2 Cal.5th at p. 828.) Likewise, because neither the prosecution nor the court informed Jennings that the property‘s $950 value was an element of the burglary alleged in count 3, he presumably was not, as a self-represented defendant, aware of that element. Therefore, that element cannot be deemed to have been “undisputed” by him, nor can we conclude he “was not prevented from contesting [that] omitted element[].” (Ibid.) Furthermore, because there was no evidence
Assuming arguendo that the court‘s instructional error did not involve the omission of an element of the charged burglary offense and instead involved only a failure to sua sponte instruct on a general principle of law commonly or closely and openly connected to the facts before the court and necessary for the jury‘s understanding of the case (Montoya, supra, 7 Cal.4th at p. 1047) or a failure to sua sponte instruct on the shoplifting defense theory (ibid.), we nevertheless conclude that error was prejudicial under either the Chapman standard, discussed above, or under the more lenient state standard for harmless error under People v. Watson (1956) 46 Cal.2d 818, 836. Under the Watson standard, an error is deemed harmless if it is not reasonably probable the defendant would have obtained a more favorable result in the absence of the error. (Ibid.) However, because our review of the record shows there is no evidence to support a reasonable finding that the value of the property Jennings allegedly intended to take on his entry into the hobby store was worth more than $950, the court‘s error in omitting that general principle of law or defense theory from its instructions on count 3 burglary was prejudicial under the Watson standard (i.e., it is reasonably probable he would have
IV
Senate Bill No. 136
In his supplemental letter brief, Jennings contends, and the People agree, that Senate Bill No. 136, which was enacted on October 8, 2019, and becomes effective on January 1, 2020, applies retroactively to his case pursuant to the Estrada rule. We agree.
A
Prior to January 1, 2020,
B
In Estrada, the California Supreme Court held that a statute that reduces the punishment for an offense will generally apply retroactively to any case in which the judgment is not yet final before the effective date of the statute. (Estrada, supra, 63 Cal.2d at pp. 742, 744-745.) Estrada stated: “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Id. at p. 745.) Estrada stated: “[W]here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Estrada, at p. 748; see People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195.) ”Estrada represents ‘an important, contextually specific qualification to the ordinary presumption that statutes operate prospectively: When the Legislature has amended a statute to reduce the punishment for a particular criminal
C
By eliminating
DISPOSITION
The defendant‘s burglary conviction on count 3 and one-year
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
GUERRERO, J.