People v. Alvidrez CA3 ( 2021 )

Filed 10/28/21 P. v. Alvidrez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C088913
Plaintiff and Respondent, (Super. Ct. No. 18FE010054,
17FE000461)
v.
EDWARD ALVIDREZ,
Defendant and Appellant.
A jury found defendant Edward Alvidrez guilty of attempted burglary and
possession of burglary tools, and the trial court imposed an aggregate nine-year term.1
On appeal, defendant contends (1) insufficient evidence established his intent to commit
burglary; (2) the trial court was required to instruct the jury sua sponte that it must
1 This appeal involves two cases: 17FE000461 and 18FE010054. The issues raised on
appeal pertain to 18FE010054 only.
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unanimously agree on the attempted burglary’s point of entry; (3) the court failed to
instruct on all elements of possession of burglary tools, omitting that defendant must have
intended to use the tool to break in and commit a felony; and (4) the trial court erred in
imposing fines and fees without first holding an ability to pay hearing. We agree only as
to the third contention.
We will reverse defendant’s possession of burglary tools conviction and otherwise
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Attempted Burglary
Around 5:00 p.m., a neighbor observed defendant on the victim’s apartment’s
porch, attempting to pick the front door lock by jamming in an ill-fitting key. The
neighbor confronted defendant and twice told him to leave, but defendant did not. The
neighbor then went inside and called the police, who did not immediately arrive. At
some point, defendant left.
The victim’s apartment is part of a large, gated complex with several hundred
units and multiple buildings. A key is required to enter through the complex’s front gate,
but the victim’s apartment is on the outskirts of the complex, near a chain link fence
abutting a freeway, and its front door is on the first floor, effectively under a stairwell.
The apartment also has a sliding glass patio door covered with a screen and blinds.
The victim was gone during the attempted break-in. When he left the previous
day, he had left the doors locked, blinds closed, and lights off. He said he made sure the
blinds were drawn. When he returned home, he noticed dirt and rocks from a nearby
planter were disturbed, and his welcome mat was moved. He also noticed the screen
door and wood trim was removed from the patio sliding door. The sliding door frame
was bent and scratched with pry marks and was partially off its track. A Sacramento
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Police Officer said the pry marks appeared fresh. But it did not appear that anyone got
inside.2 Nothing had been moved and nothing was missing.
After the victim reported the attempted break in, officers arrested defendant at a
fast food restaurant a quarter mile away. The neighbor identified defendant as the man
from the porch.
Defendant was found with an old, worn down key. An officer testified the key
was “modified” since it was bent, though there were no visible file marks. He testified
that modified, or “shaved,” keys are sometimes used to defeats locks.
The Defense’s Case
At trial, trial counsel argued to the jury that defendant’s intent to commit burglary
was not proven, and, in fact, his actions were inconsistent with such an intent: someone
intending to commit burglary would likely attempt at night, flee when discovered, and
not stay in the area. Defendant, however, was present at a busy apartment complex
during the day and when twice confronted by the neighbor did not leave.3 He was
detained only a quarter mile away and did not flee from police. Counsel argued to the
jury that sometimes it is possible to see through closed blinds, “[s]o someone, if they
were able to look in” they would not see anything inside, think that it was abandoned and
2 No trial witnesses testified to personally seeing defendant near the patio area. But the
victim testified that his attention was drawn to the patio door because a neighbor told him
he had seen someone attempting to pry open the patio door.
3 While the neighbor testified that he saw defendant trying to jam a key into the front
door lock, defendant maintained it was not reasonably probable that the witness could
actually see what he was doing with his hands.
3
“maybe I can go sleep for the night. . . Is that the more reasonable inference? I think it
is.”4
Verdict and Sentencing
The jury found defendant guilty of attempted burglary (Pen. Code, §§ 664/459)5
and possession of burglary tools (§ 466). It also found he had suffered a prior strike
(§§ 667, subd. (a)/1170.12).
The trial court imposed an aggregate nine-year term consisting of four years for
the attempted burglary (the lower term, doubled for the strike), and a five-year prior
serious felony enhancement. For possession of burglary tools, defendant was sentenced
to time served.6
DISCUSSION
I. Substantial Evidence
On appeal, defendant contends insufficient evidence established his intent to
commit burglary. He argues the record lacks evidence, even circumstantial, about his
state of mind when he attempted to enter the apartment. The key found in his possession
was not a burglary tool sufficient to demonstrate intent because it did not have visible file
marks and was merely worn down. And the record does not preclude a reasonable non-
nefarious intent, such as finding a place to sleep. Defendant’s contention is without
merit.
To find a defendant guilty of attempted burglary, the jury must conclude he had
the specific intent to commit the attempted crime — here, intent to commit burglary —
4 The victim was in the process of moving out of the apartment, and one officer testified
that, when he viewed the apartment’s interior, it appeared to have been packed up. The
victim testified that only the living room was empty.
5 Undesignated statutory references are to the Penal Code.
6 The clerk’s transcript states the court imposed 0 days on count two.
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and completed a direct but ineffectual act toward its commission. (People v. Mejia
(2012) 211 Cal.App.4th 586, 605.) The crime of burglary requires entry into a structure,
with intent to commit larceny or any felony. (§ 459) Usually, intent must be inferred
from the surrounding circumstances disclosed by the evidence. (People v. Matson (1974)
13 Cal.3d 35, 41.)
In determining the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to decide whether substantial evidence supports the
conviction. (People v. Jennings (2019) 42 Cal.App.5th 664, 671 [“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.”].) We accept all logical
inferences the jury might have drawn from circumstantial evidence. (People v. Zaun
(2016) 245 Cal.App.4th 1171, 1173, citing People v. Maury (2003) 30 Cal.4th 342, 396.)
A finding of insufficient evidence “ ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s
verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)
Here, defendant’s possession of a modified key as well as the location and
characteristics of the victim’s apartment’s constitute substantial evidence of intent to
commit burglary on a theft theory. Defendant’s possession of a burglary tool, the
modified key, supports a reasonable inference of intent to burglarize the apartment.
(People v Southard (2007) 152 Cal.App.4th 1079, 1088 [possession of burglary tools or
items commonly used by burglars to facilitate burglary can provide evidence of the
requisite intent].) And though defendant argues the key was not a “burglary tool”
because it did not have visible file marks, the jury was free to accept the officer’s
testimony that the key was “modified” and that such keys are often used to defeat locks.
The apartment’s location and characteristics further support a reasonable inference
of intent to commit burglary. The apartment is located in a complex that requires a key to
enter. But the victim’s apartment was on the complex’s outskirts, near a chain link fence
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abutting a freeway, providing a possible bypass to the front gate and access to the
apartment. Further, the front door was hidden from view. And during the incident, the
apartment was completely dark with all the doors locked and blinds drawn, indicating no
one was home. From this a jury could conclude the apartment was an inviting target to
burglarize and from that, infer intent.
While defendant maintains he harbored a non-nefarious purpose, such as finding a
place to sleep, which could explain his conduct, the general busyness of the complex and
the neighbor twice telling him to leave undermines that — suggesting defendant knew the
apartment was inhabited, and an owner would soon return. In sum, there was substantial
evidence from which the jury could reject defendant’s claim of non-nefarious intent, and
conclude he had intent to commit burglary. This is certainly not a case where “ ‘ “ ‘upon
no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s
verdict’ ” (Zamudio, supra, 43 Cal.4th at p. 357.)
Defendant’s substantial evidence contention therefore fails.
II. Unanimity Instruction
Defendant contends the trial court erred in failing to sua sponte instruct the jury
that it must unanimously agree on the attempted point of entry to sustain the attempted
burglary conviction. He reasons the prosecution presented evidence of two points of
entry — the front and back patio door — each of which could be a direct but ineffectual
act toward the burglary’s completion. Since the prosecution made no election between
the acts, the trial court was required to instruct the jury that it must unanimously agree on
which act constituted the attempted burglary. We disagree.
We review a claim that the trial court failed to instruct the jury on the applicable
principles of law de novo. (People v. Lueth (2012) 206 Cal.App.4th 189, 195.)
A court must give the unanimity instruction when the evidence suggests more than
one discrete crime, and the prosecution does not elect which it intends to prove beyond a
reasonable doubt. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) This
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instruction is intended to prevent a defendant being convicted without all jurors agreeing
on the crime committed. (Ibid.)
But jurors need not all agree on exactly how a single, discrete crime was
committed. (Russo, supra, 25 Cal.4th at p. 1135.) “Thus, the unanimity instruction is
appropriate ‘when conviction on a single count could be based on two or more discrete
criminal events,’ but not ‘where multiple . . . acts may form the basis of a guilty verdict
on one discrete criminal event. In deciding whether to give the instruction, the trial court
must ask whether (1) there is a risk the jury may divide on two discrete crimes and not
agree on any particular crime, or (2) the evidence merely presents the possibility the jury
may divide, or be uncertain, as to the exact way the defendant is guilty of a single
discrete crime.’” (Ibid. italics added.)
Applying this standard to a burglary example, the Russo court stated: “If the
evidence showed two different entries with burglarious intent, for example, one of a
house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday,
the jury would have to unanimously find the defendant guilty of at least one of those acts.
If, however, the evidence showed a single entry, but possible uncertainty as to the exact
burglarious intent, that uncertainty would involve only the theory of the case and not
require the unanimity instruction.” (Russo, supra, 25 Cal.4th at pp. 1132-1133.)
Here, instead of breaking into or attempting to break into two houses with the
intent to steal from each house as in the example discussed in Russo, the evidence
indicates defendant attempted to break into a single apartment by multiple acts with a
singular intent to steal from that apartment. Thus, the evidence forms the basis for a
verdict on one discrete criminal event: the attempt to break into the victim’s apartment.
Whether defendant attempted entry through the front door or the patio door concerns how
one discrete crime — attempted burglary of the same residence — was committed. This
case does not present a situation where “the jury may divide on two discrete crimes and
not agree on any particular crime”; rather “the evidence [here] merely presents the
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possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty
of a single discrete crime.” (Russo, supra, 25 Cal.4th at p. 1135.) Accordingly, the trial
court was not required to give a unanimity instruction on the attempted point of entry.
And even assuming arguendo the unanimity instruction was required, any
hypothetical error is harmless beyond a reasonable doubt. No witness who testified
actually saw defendant near the patio, and no surveillance footage, DNA or fingerprint
evidence placed him there. Thus, any juror concluding defendant attempted entry at the
patio necessarily also had to conclude he attempted entry at the front door, as indicated
by the neighbor who identified him as the man he saw attempting to enter that door with
a key.
Thus, defendant’s contention fails.
III. Possession of Burglary Tools Instruction
Defendant contends the trial court failed to instruct the jury on all the elements of
possession of burglary tools (§ 466). Specifically, the jury was not instructed that
defendant must have intended to use the burglary tools to break into a structure to commit
a felony. We agree the instruction was erroneous and prejudicial.
We review whether a jury instruction correctly states the law de novo. (People v.
Lopez (2011) 198 Cal.App.4th 698, 708.)
Here, no standard instruction exists for possession of burglary tools, so the trial
court created its own. The court instructed the jury that three elements were required:
“[(1)] the defendant possessed an instrument or tool; [(2)] the defendant knew that he
possessed this instrument or tool; and [(3)] the defendant intended to feloniously break or
enter into a building, railroad car, aircraft or vessel, trailer coach or vehicle.”
But a conviction for possession of burglary tools also requires intent to use the tool
to break into or otherwise effectuate physical entry into a structure in order to commit a
felony within. (In re H.W. (2019) 6 Cal.5th 1068, 1075 [“Unlike certain burglary tool
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statutes found in other states, section 466 does not merely prohibit possession of certain
devices with an intent to commit burglary . . .”].)
The instruction here merely required the jury to find defendant knowingly
possessed the key and had intent to break into the apartment to commit a felony. This is
precisely what the In re H.W. court rejected.7 Therefore, the instruction was erroneous.
An instructional error omitting a required element of the offense is reviewed for
prejudice under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. (People v.
Bay (2019) 40 Cal.App.5th 126, 137 (Bay).) Under this standard, reversal is required
unless we conclude the error was harmless beyond a reasonable doubt. (Chapman, at
p. 24.) The question is whether the guilty verdict rendered was “surely unattributable to
the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182].)
An instructional error omitting a required element will be harmless if “the factual
truth of the omitted element was implicitly found by the jury.” (People v. Lewis (2006)
139 Cal.App.4th 874, 890 (Lewis).) Similarly, an instructional error omitting a required
element will be harmless when the defendant did not, and apparently could not, bring
forth facts contesting the omitted element. (People v. Neder (1999) 527 U.S. 1, 17 [144
L.Ed.2d 35].) But “where the defendant contested the omitted element and raised
evidence sufficient to support a contrary finding — [the court] should not find the error
harmless.” (Id. at p. 19.)
7 The People maintain the instruction here was not in error because it adequately
conveyed that defendant’s intent to use the tool to break in must be felonious. We
disagree and find the People have misconstrued defendant’s argument and the law. The
missing element is “the intention to use the instrument to make a felonious entry, not
whether the entry in question was felonious.” The People further maintain defendant’s
contention is forfeited because his trial counsel did not object to the instruction or request
clarifying language. We disagree. “[I]t is well settled that no objection is required to
preserve a claim for appellate review that the jury instructions omitted an essential
element of the charge.” (People v. Mil (2012) 53 Cal.4th 400, 409.)
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Here, we cannot say the error was harmless beyond a reasonable doubt. Under the
instructions given, the jury concluded defendant intended to break into the apartment to
commit a felony, but it was not asked to decide whether he intended to use the key to do
so. And though substantial evidence supported the jury’s finding of guilt as to attempted
burglary, that verdict did not require a finding that defendant possessed the key found in
his possession to use to break into a structure.
Further, this is not a case where the omitted element was “uncontested and
indisputable.” (Lewis, supra, 139 Cal.App.4th at p. 890.) Defendant’s intent when
attempting entry was contested and indeed was the central issue at trial. (See Bay, supra,
40 Cal.App.5th at p. 138 [finding erroneous instruction on intent element of section 466
prejudicial where intent “was both contested and central to assessing guilt of the
charge”].) And although the neighbor testified to seeing defendant actually use a key to
attempt entry through the front door, defendant maintained that the neighbor would not
have been able to see what he was doing with his hands. While the jury was free to
accept the neighbor’s testimony as credible, we cannot say beyond a reasonable doubt
that the guilty verdict was unattributable to the instructional error.
Accordingly, we reverse defendant’s conviction for possession of burglary tools.
IV. Dueñas
Lastly, defendant contends the trial court improperly imposed court operations
(§ 1465.8) and criminal conviction fees (Gov. Code, § 70373), as well as restitution fines,
without first determining his ability to pay. He maintains under People v. Dueñas (2019)
30 Cal.App.5th 1157, this court should stay the fines and fees imposed until the trial court
holds a hearing to determine his ability to pay.
We join courts concluding Dueñas was wrongly decided and hold that defendant
was not entitled to an ability to pay hearing before the imposition of fines and fees.
(People v. Pack-Ramirez (2020) 56 Cal.App.5th 851, 860; People v. Cota (2020) 45
Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 272; People v.
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Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946; People
v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917.)
We therefore reject defendant’s contention.
DISPOSITION
We reverse defendant’s conviction for possession of burglary tools. In all other
respects, the judgment is affirmed.
/s/
MURRAY, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
KRAUSE, J.
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