People v. Sansing CA3

Filed 6/8/21 P. v. Sansing 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C088533
Plaintiff and Respondent, (Super. Ct. No. 18FE012224)
v.
BENJAMIN ERIC SANSING,
Defendant and Appellant.
On June 22, 2018, at approximately 6:30 a.m., defendant attempted to enter S.F.’s
house on Meadowview Road in Sacramento County through several windows. After
police arrested defendant, they found one window screen on the ground that had been
removed from a kitchen window. Later, S.F. found a portion of another screen that had
been cut from a window on a door leading into the garage.
A jury found defendant guilty of one count of first degree residential burglary and
found true the allegation that, during the commission of the offense, another person, other
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than an accomplice, was present in the residence during the commission of the burglary.
The trial court sentenced defendant to the midterm of four years.
On appeal, defendant asserts (1) the evidence was legally insufficient to support
the jury’s verdict because there was not substantial evidence he removed or cut any
window screen, (2) the trial court erred in failing to instruct the jury, sua sponte, on the
lesser included offense of attempted residential burglary, and, (3) relying on People v.
Dueñas (2019) 30 Cal.App.5th 1175 (Dueñas), that the trial court violated his due
process rights in imposing fines and fees without first conducting an ability to pay
hearing.
We affirm.
FACTS AND HISTORY OF THE PROCEEDINGS
An amended information charged defendant with a single count of first degree
residential burglary (Pen. Code, § 459 [statutory section references that follow are to the
Penal Code unless otherwise stated]). The information further alleged that, during the
commission of the offense, another person, other than an accomplice, was present in the
residence during the commission of the burglary, within the meaning of section 667.5,
subdivision (c)(21).
The Prosecution Evidence
S.F. lived in a house she rented on Meadowview Road in Sacramento County.
The house had a backyard that was enclosed by a wooden gate locked with a padlock.
The windows of the house had slide locks, and most of them also had an additional screw
lock “that prevents it from being jimmied open.” The windows were almost all covered
with blinds, pillowcases, and, in one case, a shower curtain.
S.F. arrived home from work at approximately 2:00 a.m. on the morning of
June 22, 2018. S.F. went into the kitchen and took her dog out a kitchen door into the
backyard. She did not notice anything unusual in the backyard. Asked if she observed
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the house windows when she was in the backyard, S.F. responded that everything
appeared to be intact. “In other words, the screens were still on the windows. The
windows were still closed.” She testified “it would have been blatantly obvious if they
weren’t” intact “because I come out through the interior door off of the kitchen and I exit
through this rear door and usually stand right here (indicating) . . . .”
At approximately 6:30 a.m., S.F. was startled awake by her dog. The dog, a
service dog, was “trained not to always bark.” Instead, the dog jumped on S.F.’s legs.
The dog stood up, her ears perked up, listening. S.F. heard someone near the front of the
house. Alarmed, S.F. got up.
S.F. heard someone wrestling with the iron security door at the front of the house.
She then heard “tapping, like knocking at the windows.” S.F. looked out the peephole
and saw defendant on her porch. Defendant was “going back and forth, looking in the
windows.” S.F. did not see anything in defendant’s hands, but she also testified that she
“honestly didn’t take note of his hands” because she “was really nervous.” Defendant
then went out of view in the direction of the garage.
S.F. then heard a very loud bang. S.F. “knew by the bang that he had busted the
gate open.” By that time, S.F. was on the phone with 911.
While she was on the phone with 911, S.F. moved from window to window,
watching what defendant was doing. S.F. described much of what she was observing to
the 911 operator. S.F.’s 911 call was played for the jury.
S.F. reported that a man was banging on her door, she did not respond, and the
man went to her side gate, kicked it open, and went into the backyard. S.F. reported the
man was still in her backyard. S.F. repeated to the 911 operator more than once that the
man remained in her backyard. S.F. reported that she did not see any weapons.
Looking out her master bedroom window into the backyard, S.F. could see the
casita (also referred to as a studio and a shed) that was used for storage. A separate
entrance in the structure led to a full bath and shower. On the interior, there was a barrier
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wall between the storage area of the casita and the bathroom area; on the interior, one
could not access the storage area from the bathroom. The storage area was locked, but
defendant went into the bathroom, went through the bathroom cabinets, and went back
and forth trying to gain access to the storage area. Defendant took items that were in the
bathroom portion of the casita, including a five-gallon Home Depot bucket “and some
other things.” Asked if defendant was holding anything in his hands during this time,
S.F. responded that she did not “recall specifically like taking note of his hands. I was
really afraid, and he was going back and forth. And then at some point I saw him remove
some things from the bathroom.”
At some point S.F. stopped watching defendant from the master bedroom window.
Four minutes 30 seconds into the 911 call, S.F. reported the man was still in her
backyard. S.F. and the 911 operator did not communicate for approximately 40 seconds.
Then, five minutes 17 seconds into the call, S.F. reported: “Yeah, I’m not watching him
in the back of the house anymore, I’m at the front of my house.” S.F. testified: “in my
mind, it seemed like it was taking a really long time for local PD to respond. And I was
afraid, and so I went back to check to see if they had arrived yet.” Thus, she went from
the master bedroom in the back to the front of the house to see if police had arrived yet.
S.F. and the 911 operator did not communicate for the next one minute 13 seconds, until
the 911 operator asked if there was somebody at the house with S.F. The 911 operator
then asked S.F. if the man had come out past her in the front yard, and S.F. responded
that he had not.
About 10 seconds later, seven minutes into the 911 call, S.F. said, “Oh, my God,
he’s at my fucking window.” S.F. had just returned from the front of the house to the
kitchen window to peer out to see where defendant was. And defendant was “right there”
in one of the kitchen windows trying to enter the main house. S.F. testified: “This is the
kitchen window that I -- when I came back from checking to see if PD had arrived yet. I
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was peeking -- I have a covering over it. I went to peek through the side, and [defendant]
was standing right there, and it startled me.”
S.F. reported to the 911 operator that the man was trying to open the kitchen
window. S.F. testified defendant had removed a screen, which she did not see him do,
and she saw him attempting to open the window with his hands. S.F. testified: “I know
he removed the screen from this window (indicating), and there were fingerprints on the
window from the outside. So at some point he had tried to open that one. [¶] But I did
see him try to open this, and he inevitably opened this one (indicating). He was trying to
gain access from -- by any means necessary.” S.F. testified that window did have a screw
on it. Defendant had removed the screen, but he could not manage to jimmy the window
open.
Asked if she saw him holding any tools in his hand when she saw him at the
window, S.F. responded, “I was terrified. I don’t recall specifically looking for tools or
weapons.” She testified, “I was at the point that I realized he was right there, and I was
startled. I think I lost my composure. I was afraid.”
With regard to another window, S.F. testified: “This is the garage entry door
(indicating). There is an additional interior door to the house. But this has a slide-up
window. And [defendant] cut the screen off of the window and proceeded to push that
window up and open.” S.F. did not see defendant cut the screen. She did see him slide
the window up.
Defendant “kept going back and forth, trying to find some way to enter.” S.F.
testified on cross-examination that he attempted to enter her house through at least three
windows. Asked about this again, S.F. testified: “I physically saw him at least with these
two, the garage door entry window and the one right next to it. [¶] I did not actually see
him at the kitchen window because that’s when I was afraid and backed away. And he --
but he removed the screen. And his -- his palm print, he tried to push that window up and
open, but it has a screw. [¶] As to the two windows in the front of the house, one of
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which is the living room and one of which is the dining room, I did not physically see
him manipulate the windows, but I heard him making noise at them attempting to open
them.” She clarified that she did see defendant at the kitchen window and she backed
away, afraid. Asked if she ever made eye contact with defendant, S.F. replied, “I don’t
believe he ever knew I was there.”
S.F. testified she did not see anyone else with defendant when she first saw him.
Nor did she see anyone in her backyard with defendant. Defendant was alone.
Approximately 11 minutes elapsed between when S.F. first called 911 and when
police arrived. Sacramento Police Department Officer Steven Halverson was among the
officers who responded to S.F.’s house at approximately 6:45 a.m. When Halverson
approached the house, S.F. reported that defendant was still in the backyard. Halverson
and other officers proceeded through the broken and splintered gate into the backyard.
Halverson saw defendant standing on a patio in the backyard. Halverson arrested
defendant.
After he placed defendant in his patrol vehicle, Halverson did a walkthrough with
S.F. Halverson characterized S.F. as “scared or nervous.”
S.F. inspected the wooden gate. The wood was splintered, there was a piece of
wood on the ground, and the latch was broken away from the wood fence.
S.F. also found a jagged-edged knife with a wooden handle in the backyard “at the
base of the door.” According to Halverson, the knife, a 12-inch sheetrock knife, was in
the location where he first saw defendant. S.F. testified that she would have noticed the
knife had it been there the night before. She testified, “several hours earlier when I had
taken the dog out, I came through this door and there was nothing there. [¶] Once the
defendant had been arrested, there was a knife at the base of that door.” S.F. testified
that, as far as she knew, the knife did not belong to her. S.F.’s landlord testified he did
not keep any knives or saws in storage in the casita.
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S.F. pointed out to Halverson a kitchen window where she had seen defendant.
Halverson saw the screen had been removed. The screen was on the ground a few feet
away. The screen had been bent to be removed from the kitchen window. S.F. testified
she never experienced trouble with the screens falling off.
Asked if she knew when or how the screen from the kitchen window was
removed, S.F. testified: “It had to have been removed by the defendant that morning,
because it was not like that when I took the dog out earlier.” Thus, according to S.F., the
screen must have been removed at some time after 2:00 a.m.
Halverson also saw what appeared to be a hand mark on the kitchen window, a
“smudge from someone that attempted to push the window open.” Police did not call for
a CSI team because Halverson’s training officer indicated that “latent prints would not be
obtainable because of the smudge mark on them.”
S.F. observed some baseball cards in a Home Depot bucket as well as a ball and
other loose items defendant had taken from the bathroom side of the casita. S.F. testified
that none of the loose items belonged to her. She testified the orange bucket had been
taken from the bathroom area of the casita. She also testified more than once that the
Home Depot bucket did belong to her. S.F.’s landlord testified he did not keep anything
in storage in the bathroom portion of the casita other than a gas stove. He did not have a
Home Depot bucket in the bathroom, although he may have had such items in the storage
portion of the casita. Shown a photograph of various items and a Home Depot bucket,
S.F.’s landlord testified that the items were not his.
After police left, S.F. found another piece of screen that had been removed. She
found it “in the back. In the grass near where the casita is.” This was from the screen on
the window on the garage entry door.
The defense presented no evidence.
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Verdict and Sentence
The jury found defendant guilty on count one, first degree residential burglary.
(§ 459.) The jury also found true the allegation that, during the commission of the
offense, another person, other than an accomplice, was present in the residence within the
meaning of section 667.5, subdivision (c)(21). The trial court sentenced defendant to the
midterm of four years.
DISCUSSION
I
Sufficiency of the Evidence
Defendant asserts the evidence was legally insufficient to support his conviction of
first degree residential burglary. His challenges to the sufficiency of the evidence relate
solely to the window screens. Defendant acknowledges that penetration into an area
behind a window screen amounts to entry of a building within the meaning of the
burglary statute. However, according to defendant, the conclusion that he penetrated the
window screen was wholly speculative. Defendant asserts that the evidence that he cut or
removed a window screen was “wholly circumstantial.” Defendant emphasizes S.F.’s
911 call, during which she narrated his activities. Defendant maintains that, with S.F.
focused on him “for almost the entirety of the incident, it is unreasonable that she missed
[defendant] cutting and discarding the screen behind the casita all while using the knife
that was found in her backyard.” According to defendant, the evidence “supports a
strong possibility that another person cut into the screen between the hours of 2:00 a.m.
and the time [S.F.] saw [defendant] in her backyard.”
Expanding on this third-party theory, defendant asserts: “[g]iven [defendant] was
trying to get into every window, he reasonably avoided two step processes; explaining
why [S.F.] found [defendant] attempting to slide open the window with the screen
already cut into.”
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“The law governing sufficiency-of-the-evidence challenges is well
established . . . . [Citations.] In reviewing a claim for sufficiency of the evidence, we
must determine whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
. . . beyond a reasonable doubt. We review the entire record in the light most favorable to
the judgment below to determine whether it discloses sufficient evidence—that is,
evidence that is reasonable, credible, and of solid value—supporting the decision, and not
whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither
reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume
in support of the judgment the existence of every fact the jury reasonably could deduce
from the evidence. [Citation.] If the circumstances reasonably justify the findings made
by the trier of fact, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding.” (People v.
Jennings (2010) 50 Cal.4th 616, 638-639 (Jennings).)
“The same standard of review applies to cases in which the prosecution relies
mainly on circumstantial evidence . . . .” (People v. Maury (2003) 30 Cal.4th 342, 396
(Maury).) “An appellate court must accept logical inferences that the jury might have
drawn from the circumstantial evidence.” (Maury, at p. 396; see also People v. Bloom
(1989) 48 Cal.3d 1194, 1208 (Bloom) [“Evidence of a defendant’s state of mind is almost
inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to
support a conviction”].)
“ ‘A reversal for 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. Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri), italics added.)
“Every person who enters any house . . . with intent to commit grand or petit
larceny or any felony is guilty of burglary.” (§ 459.) Thus, the “elements of first degree
burglary in California are (1) entry into a structure currently being used for dwelling
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purposes and (2) with the intent to commit a theft or a felony.” (People v. Sample (2011)
200 Cal.App.4th 1253, 1261 (Sample), citing §§ 459, 460 & People v. Anderson (2009)
47 Cal.4th 92, 101.) “[P]enetration into the area behind a window screen amounts to an
entry of a building within the meaning of the burglary statute even when the window
itself is closed and is not penetrated.” (People v. Valencia (2002) 28 Cal.4th 1, 13, fn.
omitted (Valencia), disapproved on another ground in People v. Yarbrough (2012)
54 Cal.4th 889, 894.)
Here, at approximately 2:00 a.m., S.F. took her dog outside in her backyard. She
noticed nothing unusual. With regard to whether she observed the house’s windows at
this time, she testified that everything appeared to be intact. “In other words, the screens
were still on the windows. The windows were still closed.” According to S.F., “it would
have been blatantly obvious if they weren’t” intact.
Approximately four and a half hours later, S.F.’s dog woke her up. S.F. heard
someone manipulating the iron security door at the front of the house. She looked out the
peephole and saw defendant on her porch “going back and forth, looking in the
windows.” Defendant then broke through the wooden gate to the side and went into the
backyard. S.F. called 911.
Over much of the next nine minutes, S.F. observed defendant moving in and
around the casita and from window to window of the main house trying to get in. S.F.
narrated some of what she saw for the 911 operator.
Anxious and growing impatient waiting for police to arrive, at some point, S.F.
abandoned the master bedroom window, where she had been watching defendant in the
backyard, and went to the front of the house to see if police had arrived. At the latest, by
five minutes 17 seconds into her 911 call, S.F. was at the front of the house. It was not
until seven minutes into the 911 call, at least one minute 43 seconds after she left the
master bedroom window to go to the front of the house, that S.F. returned and, shocked,
found defendant on the other side of her kitchen window.
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While S.F. did not actually see defendant remove any screens, she could see that
the screen had been removed from the kitchen window. She could also see him sliding
the window on the garage entry door, which he could not have done unless at least part of
that screen had been removed.
Defendant continued “going back and forth, trying to find some way to enter.”
S.F. observed defendant trying to get into the house through at least three windows.
S.F. never saw anyone else with defendant. Defendant was alone.
After police arrived and arrested defendant, S.F. found a jagged-edged, wooden-
handled knife on the ground. According to Officer Halverson, the sheetrock knife was in
the location where he first saw defendant. The knife had not been there when S.F. took
her dog out several hours earlier. S.F. testified that, as far as she knew, the knife did not
belong to her. S.F.’s landlord did not keep any knives or saws in storage in the casita.
Halverson and S.F. found a window screen that had been removed. The screen
had been bent to be removed from the kitchen window. After police left, S.F. found
another piece of screen that had been cut from the window on the garage entry door.
The foregoing is substantial evidence sufficient to support the jury’s verdict. It
establishes that defendant was attempting to enter S.F.’s house over approximately 11
minutes, representing the time from when S.F. was awakened to when police arrived.
Taking the elements in reverse order, the jurors could reasonably infer defendant’s
“intent to commit a theft or a felony” (Sample, supra, 200 Cal.App.4th at p. 1261) from
the foregoing circumstances of defendant persistently trying to enter into the occupied
house over the course of 11 minutes (see Bloom, supra, 48 Cal.3d at p. 1208 [“Evidence
of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial
evidence is as sufficient as direct evidence to support a conviction”]). By even greater
force of reason, defendant’s actions in taking items from the bathroom of the casita
demonstrated that intent.
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As for entry into the structure, as stated ante, “penetration into the area behind a
window screen amounts to an entry of a building within the meaning of the burglary
statute even when the window itself is closed and is not penetrated.” (Valencia, supra,
28 Cal.4th at p. 13, fn. omitted.) Further distilling the evidence on this point, according
to S.F., everything was normal and the windows and screens were intact as of 2:00 a.m.
Four and a half hours later, defendant was attempting to enter the house through several
windows. S.F. did not see him cut or remove the screens, but she saw him attempt to
move the windows. Following defendant’s apprehension, S.F. and Halverson found the
screen from the kitchen window defendant was attempting to enter, which had been bent
to be removed. S.F. later found a part of the screen which had been cut away from the
window on the garage entry door, where defendant had also been trying to enter. S.F.
found a sheetrock knife in the area where, according to Halverson, he first saw defendant.
The foregoing was more than substantial evidence from which the jurors could
reasonably infer defendant cut and removed screens to enter the house.
Defendant asserts that, with S.F. focused on defendant “for almost the entirety of
the incident, it is unreasonable that she missed [defendant] cutting and discarding the
screen behind the casita all while using the knife that was found in her backyard.” This
mischaracterizes the evidence. S.F. went to the front of the house as defendant was in the
area of the casita and in her backyard. At five minutes 17 seconds into the 911 call, S.F.
reported: “Yeah, I’m not watching him in the back of the house anymore, I’m at the front
of my house.” She did not return to the kitchen window, and see defendant on the other
side of it, until one minute 43 seconds later, 7:00 minutes into the 911 call. This was
ample time for defendant to remove one screen and cut another.
Defendant also maintains that S.F. “memorialized everything she witnessed to the
911 operator while [defendant] was in her backyard.” This, too, mischaracterizes the
evidence. There were long pauses on the call, during which S.F. was not narrating
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whatever she was witnessing. Additionally, it is implausible to suggest that she conveyed
to the 911 operator literally everything she observed.
In both his legal sufficiency argument and his jury instruction argument (see part
II, post), defendant makes a point of characterizing the evidence that he cut or removed
the screens as circumstantial, seeming to suggest its circumstantial quality renders it
insufficient. The evidence he cut and removed the screens was indeed circumstantial;
S.F. did not personally observe defendant cutting or removing the screens. However,
with regard to our review for substantial evidence, “[t]he same standard of review applies
to cases in which the prosecution relies mainly on circumstantial evidence . . . .” (Maury,
supra, 30 Cal.4th at p. 396.)
We disagree with defendant’s contention that the evidence before the jury was
only sufficient to raise a suspicion it was defendant who removed screens. (See generally
People v. Draper (1945) 69 Cal.App.2d 781, 786 [“evidence that merely raises suspicion,
no matter how strong, of the guilt of a person charged with a crime is not sufficient to
sustain a verdict and judgment against him”].) Viewing the record in a light most
favorable to the judgment, as we must, we conclude that the evidence marshalled ante
was more than sufficient to permit the jurors to infer defendant removed the screens.
(See Jennings, supra, 50 Cal.4th at pp. 638-639.)
Based on the trial evidence, defendant’s somewhat fanciful contention that a third
party must have been in S.F.’s backyard between 2:00 and 6:30, cut and removed the
screens, and departed, undetected by S.F. or her dog, is neither plausible nor supported by
any evidence in the record. In asserting “the evidence also supports a strong possibility
that another person cut into the screen between the hours of 2:00 a.m. and the time [S.F.]
saw [defendant] in her backyard,” defendant cites to one page of the trial transcript.
However, of relevance on that page, S.F. only testified that the kitchen window screen
must “have been removed by the defendant that morning, because it was not like that
when I took the dog out earlier,” and that the screen was removed “[s]ometime after
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approximately 2:00 a.m.” This does not constitute evidence “support[ing] a strong
possibility that” a third party removed the screen.
The trial court instructed the jury with CALCRIM No. 224 as follows: “Before
you may rely on circumstantial evidence to conclude that a fact necessary to find the
defendant guilty has been proved, you must be convinced that the People have proved
each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you
may rely on circumstantial evidence to find the defendant guilty, you must be convinced
that the only reasonable conclusion supported by the circumstantial evidence is that the
defendant is guilty. If you can draw two or more reasonable conclusions from the
circumstantial evidence, and one of those reasonable conclusions points to innocence and
another to guilt, you must accept the one that points to innocence. However, when
considering circumstantial evidence, you must accept only reasonable conclusions and
reject any that are unreasonable.” Defense counsel emphasized this instruction in his
closing argument. “The jury is presumed to have followed the trial court’s instructions
in the absence of any indication it was unwilling or unable to do so.” (People v. Letner
and Tobin (2010) 50 Cal.4th 99, 196.)
The jury necessarily determined defendant removed the screens and that this was
the only reasonable conclusion to be drawn from the circumstantial evidence. On appeal,
“[w]e neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.]
We presume in support of the judgment the existence of every fact the jury reasonably
could deduce from the evidence. [Citation.] If the circumstances reasonably justify the
findings made by the trier of fact, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary finding.”
(Jennings, supra, 50 Cal.4th at pp. 638-639.)
Based on the evidence before the jury, we cannot say “ ‘ “ ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s
verdict.’ ” (Penunuri, supra, 5 Cal.5th at p. 142, italics added.)
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II
Failure to Instruct on Lesser Included Offense of Attempted Residential Burglary
In the alternative to his first argument, defendant asserts the trial court erred in
failing to instruct, sua sponte, on the lesser included offense of attempted residential
burglary. Defendant asserts that, had he not removed the screen, “his offense would have
constituted only attempted residential burglary because he never entered” the premises.
He reprises his contention that the evidence he removed the screens was “wholly
circumstantial.” Defendant asserts the instruction on the lesser included offense of
attempt should have been given sua sponte notwithstanding the fact that defense counsel
stated he was not asking that the jury be instructed on the lesser included offense.
Before jury trial commenced, the trial court asked the attorneys, “Is anybody going
to ask for a lesser, or is this all or nothing?” The prosecutor responded, “I am not asking
for a lesser, but there may be a need for an attempt, depending on how the evidence
comes out.” Defense counsel stated, “I’m not going to make the request. I think it
depends on how the evidence comes out, but at this time I think it is more of an all-or-
nothing type case.” At the jury instruction conference following the close of all evidence,
defense counsel again confirmed he was “not asking for a lesser.”
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.” [Citation.] That obligation has been
held to include giving instructions on lesser included offenses when the evidence raises a
question as to whether all of the elements of the charged offense were present [citation],
but not when there is no evidence that the offense was less than that charged. [Citations.]
The obligation to instruct on lesser included offenses exists even when as a matter of trial
15
tactics a defendant not only fails to request the instruction but expressly objects to its
being given. [Citations.] Just as the People have no legitimate interest in obtaining a
conviction of a greater offense than that established by the evidence, a defendant has no
right to an acquittal when that evidence is sufficient to establish a lesser included
offense.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).)
The trial court is required to instruct on a lesser included offense “whenever
evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to
merit consideration’ by the jury.” (Breverman, supra, 19 Cal.4th at p. 162.) However,
the court is not required to instruct on theories that are not supported by such substantial
evidence. (Ibid.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense . . . .” (Ibid.) “ ‘ “Substantial evidence” in this
context is “ ‘evidence from which a jury composed of reasonable [persons] could . . .
conclude[]’ ” that the lesser offense, but not the greater, was committed.’ ” (People v.
Romero (2008) 44 Cal.4th 386, 403 (Romero), quoting Breverman, at p. 162.)
“An attempt to commit a crime consists of two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)
We disagree with defendant’s contention that substantial evidence supported the
conclusion that someone else cut and removed the screens and that the instruction on
attempt was therefore required. Circumstantial evidence supported the conclusion that
defendant cut and removed the screens. The screens were intact at 2:00 a.m. Defendant
attempted to break into S.F.’s house at 6:30 a.m. He attempted to open the windows
where screens were ultimately found to be missing. A jagged sheetrock knife was found
where police encountered defendant. No one else was seen in the backyard that morning.
Conversely, we find no evidence in the record whatsoever to support the premise
that the screens were already removed before defendant’s arrival at S.F.’s house. On this
record, such a conclusion would amount to pure speculation.
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Defendant insists there was “plenty of evidence that [he] took advantage of the
screen being already cut out of the window.” However, he does not identify any such
evidence, except that defendant cites to one page of the reporter’s transcript to support his
contention. That page contains S.F.’s testimony to the effect that she “didn’t actually see
him cut this screen off, but it became evident,” she “didn’t see him cut it. I saw him open
the window,” and related testimony. What does not appear on this page, however, is
evidence supporting the premise that someone had previously removed the screens and
that defendant took advantage of that fact. The fact that S.F. did not see defendant cut
and remove the screens does not amount to evidence that someone else did so.
Otherwise, defendant does not specifically identify any evidence constituting substantial
evidence that an unknown third party went into S.F.’s backyard between 2:00 a.m. and
6:30 a.m., cut and removed two screens, did so undetected by S.F. and her dog, and then
simply left.
Defendant also maintains that, “just as [the Attorney General] argues that it was
unreasonable that someone cut through the screen of the window between a four hour
window undetected by [S.F.] and her dog in the middle of the night, it was just as
unreasonable that in under two minutes, [defendant] cut the screen and discarded part of
it near the casita, all of which [S.F.] failed to see while capturing the events on the 911
call.” (Fn. omitted.) We do not agree. The evidence establishes a period during the 911
call of at least one minute 43 seconds during which S.F. was at the front of the house and
not watching defendant. This was more than sufficient time for defendant, the only
person seen in S.F.’s backyard that morning, to cut and remove two screens and discard
them without being noticed. Moreover, while defendant asserts there “was clearly room
for reasonable doubt as to whether it was [defendant] who cut through the screen,” that is
not the question to be addressed on defendant’s failure-to-instruct claim. The question is
whether sufficient substantial evidence supported the instruction defendant asserts should
have been given. We have concluded it did not.
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Defendant also raises the fact that, in closing, defense counsel argued that S.F. was
lying in her testimony. However, on appeal, “[w]e neither reweigh the evidence nor
reevaluate the credibility of witnesses. [Citation.] We presume in support of the
judgment the existence of every fact the jury reasonably could deduce from the
evidence.” (Jennings, supra, 50 Cal.4th at pp. 638-639.)
In short, we find no evidentiary support, let alone substantial evidence, for
defendant’s theory that someone else cut and removed the screens and that defendant
merely attempted to enter S.F.’s house where those screens had already been removed.
The trial court was not required to instruct on theories, such as defendant’s, that did not
find substantial support in the evidence. (Breverman, supra, 19 Cal.4th at p. 162.)
Accordingly, the trial court did not err in failing to instruct the jury, sua sponte, on the
lesser included offense of attempted residential burglary.
III
Fines and Fees
At sentencing, the trial court imposed a $1,200 restitution fine (§ 1202.4, subd.
(b)) and a $1,200 suspended parole revocation fine (§ 1202.45), a $40 court operations
assessment (§ 1465.8), a $30 conviction assessment (Gov. Code, § 70373), and a $10
Crime Prevention Program fine (§ 1202.5), and ordered victim restitution in an amount to
be determined. Finding defendant indigent, the court waived the main jail booking fee
and the main jail classification fee. The court also imposed a state surcharge assessment
pursuant to section 1465.7, subdivision (a).
Relying on Dueñas, supra, 30 Cal.App.5th 1175, defendant asserts the trial court
violated his due process rights by imposing fines and fees without conducting a hearing
to determine his ability to pay. Defendant asserts we must remand the matter for the trial
court to conduct an ability-to-pay hearing. Defendant also asserts the imposition of fines
and fees absent an ability-to-pay determination amounts to the imposition of excessive
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fines in violation of the Eighth Amendment and article I, section 17, of the California
Constitution.
The Court of Appeal, Second Appellate District, Division Seven, filed Dueñas on
January 8, 2019. The trial court sentenced defendant here approximately one month
earlier. Thus, defendant at sentencing could not have objected pursuant to Dueñas.
However, the Attorney General asserts defendant forfeited his claims because he never
raised any due process objection or inability to pay claim in the trial court. Defendant
asserts his claims are cognizable on appeal notwithstanding the fact that he did not object
at sentencing for a number of reasons we need not enumerate here. We need not decide
the forfeiture issue because we hold that Dueñas was wrongly decided regarding the issue
of hearings on the ability to pay fines and fees before they are ordered by the trial court.
Defendant’s claims hinge on the Dueñas analysis finding due process principles
require an ability-to-pay hearing before imposing fines and fees. We are not persuaded
this analysis is correct. Our Supreme Court is now poised to resolve this question, having
granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp), review granted
November 13, 2019, S257844, which agreed with the court’s conclusion in Dueñas that
due process requires the trial court to conduct an ability-to-pay hearing and ascertain a
defendant’s ability to pay before it imposes court facilities and court operations
assessments under section 1465.8 and Government Code section 70373, but not
restitution fines under section 1202.4. (Kopp, at pp. 95-96, review granted.)
In the meantime, we join several other courts in concluding that the principles of
due process do not require determination of a defendant’s present ability to pay before
imposing the fines and fees at issue in Dueñas and in this proceeding. (People v. Cota
(2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 272,
279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019,
S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 (Aviles); People v. Caceres
(2019) 39 Cal.App.5th 917, 928.) To the extent defendant properly raises it, we conclude
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his claim that his right to equal protection was violated by the imposition of fines, fees,
and assessments without conducting an ability-to-pay determination also lacks merit.
(Aviles, at pp. 1068-1069.)
Nor has defendant persuaded us that imposition of the fines, fees, and assessments
violated his Eighth Amendment right against excessive fines as that right was recently
discussed by the United States Supreme Court in Timbs v. Indiana (2019) __ U.S. __
[203 L.Ed.2d 11], on which defendant relies. Defendant has cited us to no authority, nor
have we discovered any on our own, to establish the fines, fees, and assessments imposed
in this case are excessive based on “ ‘(1) the defendant’s culpability; (2) the relationship
between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4)
the defendant’s ability to pay.’ ” (Aviles, supra, 39 Cal.App.5th at p. 1070, quoting
People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728; see
United States v. Bajakajian (1998) 524 U.S. 321, 334 [141 L.Ed.2d 314].)
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
HOCH, J.
KRAUSE, J.
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