Filed 12/12/19 P. v. Rodriguez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR RODRIGUEZ,

Defendant and Appellant.

D074773

(Super. Ct. No. SCD276767)

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.

William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

A jury found Hector Rodriguez guilty of one count of first-degree burglary (Pen. Code, §§ 459, 460) (count 1). The trial court sentenced Rodriguez to two years in prison.

On appeal, Rodriguez claims that the trial court erred in failing to instruct the jury sua sponte on the purported lesser included offense of trespassing (§ 602.5). Rodriguez maintains that trespassing is a lesser included offense of the burglary charged in this case, in light of language contained in the operative accusatory pleading. Applying the “accusatory pleading test” for determining the existence of a lesser included offense, (People v. Reed (2006) 38 Cal.4th 1224, 1227–1228 (Reed), we conclude that trespassing is not a lesser included offense of the charged offense of burglary because the facts alleged in the information do not contain all of the elements of the offense of trespassing. Accordingly, we affirm the judgment.

II.

FACTUAL BACKGROUND

A. The People’s evidence

A.C. lived with his wife, R.C, and their six-year-old son in a house. Rodriguez lived in a trailer parked on the side of the house. One morning in May 2018, A.C. was out of town. At around 10:00 that morning, R.C. returned home from an outing and saw Rodriguez entering the trailer.

After entering her house, R.C. discovered that several items were missing, including a necklace, a video game console, and some money. She also noticed that her kitchen window had been damaged.

R.C. reviewed the footage from several outdoor security cameras. Surveillance footage from one of the cameras showed Rodriguez approach the house and turn off one of the cameras. The surveillance video also showed Rodriguez exiting the home through a kitchen window about 10 minutes later.

R.C. called 911. The police arrived several hours later and arrested Rodriguez.

B. The defense

Rodriguez testified in his own defense. Rodriguez stated that he entered A.C. and R.C.’s house on the day in question in order to retrieve food that he had been storing in their house. Rodriguez said that he had not asked R.C. for the food because he was shy, and that he had disabled the security camera due to embarrassment.

III.

DISCUSSION

The trial court did not err in failing to instruct the jury on the offense of

trespassing as a lesser included offense of the charged offense of burglary

Rodriguez claims that the trial court erred in failing to instruct the jury sua sponte on the offense of trespassing as a lesser included offense of the charged offense of burglary. We apply the de novo standard of review to Rodriguez’s claim. (People v. Cole (2004) 33 Cal.4th 1158, 1218 [“We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense”].)

A. Factual and procedural background

The People alleged in the operative information that Rodriguez “did unlawfully enter a building with the intent to commit theft, in violation of . . . section 459.” (Capitalization omitted.)

B. Governing law

1. Lesser included offenses under California law

“Under California law, trial courts must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed the lesser included offense and not the greater offense.” (People v. Gonzalez (2018) 5 Cal.5th 186, 196 (Gonzalez).) The Gonzalez court discussed the two tests that the California Supreme Court has developed for determining whether an offense constitutes a lesser included offense of a charged offense under California law:

“We have established two tests for whether a crime is a lesser included offense of a greater offense: the elements test and the accusatory pleading test. ([Reed, supra, 38 Cal.4th at pp. 1227–1228].) Either of these tests triggers the trial court’s duty to instruct on lesser included offenses. Under the elements test, one offense is another’s ‘lesser included’ counterpart if all the elements of the lesser offense are also elements of the greater offense. (Id. at p. 1227.) Under the accusatory pleading test, a crime is another’s ‘lesser included’ offense if all of the elements of the lesser offense are also found in the facts alleged to support the greater offense in the accusatory pleading. (Id. at p. 1228 [discussing circumstances where, because the accusatory pleading alleged that defendant was a felon as part of a charge of ‘carrying a concealed firearm,’ a lesser included offense of that alleged crime would be ‘being a felon in possession of a firearm’].)” (Id. at p. 197.)

2. Substantive law

a. The charged offense of burglary

Section 459 provides in relevant part, “Every person who enters any [of a list of enumerated structures], with intent to commit grand or petit larceny or any felony is guilty of burglary.” (§ 459.)

b. The purported lesser included offense of trespassing

Section 602.5 provides in relevant part, “(a) Every person other than a public officer or employee acting within the course and scope of his or her employment in performance of a duty imposed by law, who enters or remains in any noncommercial dwelling house, apartment, or other residential place without consent of the owner, his or her agent, or the person in lawful possession thereof, is guilty of a misdemeanor.”

C. Application

Rodriguez concedes that trespassing is not a lesser included offense of burglary under the elements test because trespass, but not burglary, “requires entry to occur ‘without consent.’ ” Thus, it cannot be said that all the elements of the lesser offense of trespass are also elements of the greater offense of burglary. (See Reed, supra, 38 Cal.4th at p. 1227.)

However, Rodriguez contends that the offense of trespass is a lesser included offense of burglary under the accusatory pleading test because the information alleged that he “unlawfully” entered a building. Rodriguez reasons, “[T]he inclusion of the word ‘unlawfully’ to describe the entry into a dwelling or structure in a burglary charge tends to indicate that the entry was without permission of the owner . . . .” We are not persuaded.

To begin with, Rodriguez’s argument is unsupported by any California authority and is contrary to People v. Birks (1998) 19 Cal.4th 108, 118 (Birks). In Birks, the California Supreme Court stated the following:

“It appears well settled that trespass is not a lesser necessarily included offense of burglary, because burglary, the entry of specified places with intent to steal or commit a felony (§ 459), can be perpetrated without committing any form of criminal trespass (see § 602). [Citations.] Nor did the allegations set forth in Count 1 of the instant information necessarily include criminal trespass. Count 1 simply alleged that defendant ‘did willfully and unlawfully enter a commercial building . . . with intent to commit larceny and any felony.’ ” (Id. at p. 118, fn. 8, italics added.)

While this statement from Birks court is dicta, “dicta from the California Supreme Court is highly persuasive and should generally be followed.” (Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 393, fn. 2.)

Further, even without Birks, Rodriguez’s argument is unpersuasive. Trespass requires that the defendant have entered a building “without [the] consent of the owner, his or her agent, or the person in lawful possession thereof.” However, one may “unlawfully enter a building” with the consent of the owner. For example, if a person enters a building with the intent to commit a theft, the person has unlawfully entered the building in violation of section 459 (burglary), irrespective of whether the owner has given the person consent to enter. Therefore, by alleging merely that Rodriguez did “unlawfully enter a building,” the information did not necessarily allege that Rodriguez did so “without the consent of the owner . . . .” (§ 602.5.) Since the information does not contain “all of the elements of [trespass],” (Reed, supra, 38 Cal.4th at p. 1228) the offense of trespass is not a lesser included offense of the charged offense of burglary under the accusatory pleading test.

We are not persuaded by Rodriguez’s argument in reply that we should not interpret the word “unlawfully” in the information to mean “with the intent to commit theft.” In support of this contention, Rodriguez argues that we should “borrow[ ] from the can[ ]ons of statutory interpretation,” the principle that ” ‘a construction that renders a word surplusage should be avoided.’ ” To begin with, the canon to which Rodriguez refers has no application in interpreting an accusatory pleading. On the contrary, the applicable principle is that “nonessential averments [in an accusatory pleading] may be disregarded as surplusage.” (People v. Matula (1959) 52 Cal.2d 591, 598, italics added [“Since an accusatory pleading need provide only reasonable notice of the offense charged . . . nonessential averments may be disregarded as surplusage”].) Thus, even assuming that Rodriguez is correct that the word “unlawfully” in the information is surplusage if interpreted to mean “with the intent to commit theft,” we may disregard as surplusage the averment that Rodriguez’s entry was unlawful. (Ibid.)

Further, we are aware of no principle of law that would support Rodriguez’s contention that the word “unlawfully” in the information should be interpreted to mean “without consent of the owner, his or her agent, or the person in lawful possession thereof,” (§ 602.5) as would be required for the information to contain all of the elements of trespass. Because Rodriguez must establish that the information included all of the elements of trespass in order for trespass to constitute a lesser included offense of the charged offense of burglary under the accusatory pleading test (Reed, supra, 38 Cal.4th at pp. 1227–1228), Rodriguez’s claim fails even assuming that he is correct that the word “unlawfully” in the information is surplusage.

Accordingly, we conclude that the trial court did not err in failing to instruct the jury on the offense of trespass as a lesser included offense of the charged offense of burglary.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.