Filed 11/24/15 P. v. Smith 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                                          NOT TO BE PUBLISHED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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                             C075691

                   Plaintiff and Respondent,                                (Super. Ct. No. 13F00616)

         v.

PAUL SMITH,

                   Defendant and Appellant.




         A jury found defendant Paul Smith guilty of two counts of first degree burglary
involving the same residence on different occasions. The trial court sustained a recidivist
allegation, and denied a request to exercise its discretion to strike the finding pursuant to
Penal Code section 1385.1 It then sentenced defendant to state prison for 15 years eight
months.



1 Undesignated statutory references are to the Penal Code.



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       Defendant contends on appeal that he was entitled to an instruction on the lesser
related offense of trespassing because of the manner in which the prosecution alleged the
offense in the amended information. He also claims the trial court abused its discretion in
declining to strike the recidivist finding. We shall affirm the judgment.

                 FACTUAL AND PROCEDURAL BACKGROUND

       Early in the morning of December 14, 2012, the resident grandmother of the
household stopped her then 17-year-old granddaughter (who also lived in the home) as
she was getting out of the second-floor bathroom to ask if the teen had attempted to enter
the grandmother’s downstairs bedroom earlier that morning; the grandmother had seen a
shadowy figure go through the back door after she called out when her bedroom door
started to open. The teen went downstairs and found that the television cables in the
living room were disconnected. The teen went to her upstairs bedroom and found four of
her handbags were missing, one of which had her identification and a few dollars. A
first-floor rear sliding door was open, and one of the bags was in the yard. Two others
were in a neighbor’s yard. The teen never recovered the bag that had her identification
and money. She did not bother reporting the incident to the police, because nothing had
come of her family’s report a few years before of a previous burglary.

       On December 27, the grandmother went into the kitchen on wakening and saw a
person climb in through the window and stand there. When she called out, the person
scrambled out the window. The teen’s mother came down the stairs in time to see a man
climbing out the window. The teen, who remained in her room, called the police.

       A responding officer encountered defendant near the victims’ home riding on a
skateboard. His hooded sweatshirt was similar to that which the victims had described,
and his shoes matched a print on a chair outside the kitchen window and on the
windowsill. Neither the grandmother nor the mother could identify defendant from his



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facial features. The only usable prints recovered from the home did not match
defendant’s.

       The teen was familiar with defendant because he dated the older sister of one of
her friends when she was a freshman in 2009, and she had “hung out” with him at the
time. However, she did not have any contact with him in the years since, because she
was afraid of him for unspecified reasons. On cross-examination, she specifically denied
calling out to defendant as she walked past his house a couple of weeks before the
burglaries.

       Defendant was on parole, and wore a tracking device. This device indicated he
was in the proximity of the victims’ home on the two dates at the time of the burglaries.

       In January 2013, defendant made a phone call from jail to his children’s mother
(who was the older sister of the teen victim’s friend mentioned above.) In the course of
the call, he declared his devotion to her and apologized “for all of this,” stating that he
had wanted to be able to provide more at Christmastime.

                                       DISCUSSION

1.0 Defendant Was Not Entitled to an Instruction on Trespass as a Lesser Offense

       A trial court must instruct on a requested lesser offense if there is substantial
evidence that would absolve a defendant of guilt of the greater offense but not the lesser.
We review the question de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 584
(Manriquez).)

       The amended information described the two offenses as “unlawfully enter[ing] an
inhabited dwelling house . . . with the intent to commit larceny and any other felony.”
Defendant argued at trial that this is the equivalent of alleging that he entered the home
without the consent of the owners, making trespass a lesser included offense. The trial
court did not directly address the legal question; it concluded there was an absence of any


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substantial evidence for finding the offense to be lesser than the greater offense.
Defendant renews the argument on appeal.

         Defendant concedes trespass is not a lesser included offense under the statutory
elements of burglary, because one can commit burglary even with consent to enter a
residence. (People v. Birks (1998) 19 Cal.4th 108, 118, fn. 8.) Defendant further
recognizes that dicta in that same footnote rejected the proposition (which Birks had not
himself raised) that “the allegations . . . necessarily include . . . trespass” in stating that
Birks “ ‘did willfully and unlawfully enter a commercial building . . . with intent to
commit larceny and any felony.’ ” (Ibid.)2

         Defendant purports to find a distinction in Birks because it involved second degree
commercial burglary rather than first degree residential burglary. We do not discern the
difference. The point of the dictum is that alleging “unlawful” entry is not the equivalent
of alleging entry without consent, which would implicate trespass. Defendant points out
that a legal dictionary defines “unlawful entry” as “intentionally entering another’s real
property, by fraud or other illegal means, without the owner’s consent. Cf. TRESPASS (1).”
(Garner, Black’s Law Dict. (10th ed. 2014) p. 650, col. 2 (Garner).)3 However, we are
not aware of any authority under which our interpretation of language in accusatory
pleadings is subject to a dictionary meaning contrary to the intimations of our Supreme
Court.




2 In dictum in an earlier case in another footnote eight, the Supreme Court had suggested
that the language in the accusatory pleading would support trespass as a lesser offense,
but it did not include the language at issue in the opinion and therefore does not provide
any guidance on the basis for this conclusion. (People v. Wetmore (1978) 22 Cal.3d 318,
327, fn. 8.)
3 To quote the cross-referenced definition, “trespass” is the “wrongful entry on another’s
real property.” (Garner, supra, p. 1733, col. 2.)


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       In any event, we do not need to belabor this point. Whether viewed through the
lens of an absence of substantial evidence to acquit defendant of burglary (Manriquez,
supra, 37 Cal.4th at p. 584) or the lack of any reasonable probability the jury would have
done so (People v. Beltran (2013) 56 Cal.4th 935, 955), the absence of an instruction on
trespass as a lesser offense is immaterial. In closing argument, defense counsel focused
on defendant’s intent on entry into the residence (assuming there was sufficient proof that
defendant in fact entered the residence). “You’re probably not going to like what I have
to say, but it doesn’t make it any less supported by the evidence. I submit to you the
reason [defendant] went into that house on both of those occasions . . . [was] with the
intent to spy, to peep” on the teenage resident. Counsel argued this inference was
supported by defendant’s failure to take anything more than the teen victim’s handbags,
and his choice to enter the home when people were likely to be there. This, however, was
not a reasonable alternate inference but utter speculation. (People v. Sakarias (2000)
22 Cal.4th 596, 620 [speculation is insufficient basis for instructing on lesser offense].)
The teen victim testified she had not been in contact with defendant in any way since
2009; defendant’s phone call to his children’s mother demonstrated his devotion to his
family and his desire to provide more for them; and there is an absence of any evidence
of defendant’s interest in the teen victim. The argument about the time of day would
apply equally to a desire to “peep” as well as to burglarize, and the failure to take
anything more simply reflects the lack of time to complete the task before he aborted his
intrusion. Mere trespass was not a viable alternative on the state of the record.

2.0 It Was Not an Abuse of Discretion to Decline to Strike the Recidivist Finding

       Before sentencing, defense counsel filed an invitation to the trial court4 to dismiss
the recidivist finding. It set out the circumstances of defendant’s troubled childhood after


4 This is the correct terminology. People v. Superior Court (Romero) (1996) 13 Cal.4th
497, 530 held that the trial court has the power under section 1385 sua sponte or on

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his mother’s death in 2000 when he was 11 years old, his lack of permanent employment,
and his lack of a high school degree. It asserted that defendant was subject to anxiety and
depression, but had avoided substance abuse. As of January 2014, he had been involved
with the mother of his four children for six years. The filing assumed the trial court was
familiar with the circumstances of his present offenses. Regarding defendant’s criminal
record, it acknowledged his multiple violations of probation and (after his prison term)
parole for a 2008 burglary (in which the record was unclear whether it was defendant or
his accomplice who actually entered the home, and in which actual violence was not
involved), his 2007 misdemeanor conviction for molesting his 14-year-old stepsister, and
his 2012 misdemeanor conviction for failing to register his address as a sex offender. In
his response, the prosecutor pointed out that from the time of his sentence to prison in
2009, defendant had not gone more than nine months without a violation or a new offense
(spending roughly 15 months in custody over the prior three years); the present burglaries
occurred three months after defendant’s most recent period of custody (at a time, we note,
when he was wearing a tracking device).

       The trial court found that defendant’s record demonstrated an inability to follow
rules despite many opportunities to turn his life around. It also believed defendant (who
had addressed the court) tended to deflect blame for his actions. Other than his youth and
his family, the trial court could not find anything to justify exercising its discretion to
strike the finding (his difficult childhood not being any justification for his poor choices).

       A trial court may exercise its discretion to strike a recidivist finding if, and only if,
a defendant can be “deemed outside the . . . spirit” of the statute, giving “preponderant


motion of the prosecution to dismiss a recidivist finding in the interests of justice. A
defendant therefore can invite the trial court to exercise its power sua sponte, but cannot
“move” the court to act sua sponte. (People v. Carmony (2004) 33 Cal.4th 367, 374-375
(Carmony) [may “invite,” which obligates court to review any proffered evidence, and
allows appellate review].)


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weight” to inherent statutory factors (such as the background, character, and prospects of
a defendant, as well as the nature and circumstances of the present and previous felony
convictions) and ignoring any factors extrinsic to the statute. (People v. Williams (1998)
17 Cal.4th 148, 159, 161.)

       The burden is on defendant to demonstrate that the trial court’s decision was
unreasonable, rather than being one of alternative reasonable readings of the facts before
the court. This requires a defendant to overcome a “strong” presumption on appeal that a
court’s denial of the request to exercise discretion is proper. (Carmony, supra, 33 Cal.4th
at pp. 377, 378.) Only where the criteria undisputedly favor a defendant (i.e., where the
facts essentially as a matter of law establish entitlement to relief) would the denial of a
request to exercise its power to strike be an abuse of a court’s discretion. (Id. at p. 375.)

       Defendant takes the not uncommon tack of reiterating the arguments he made in
the trial court and declaring the result to be an abuse of discretion without any
demonstration of the irrationality or arbitrary nature of the trial court’s exercise of its
informed discretion. It is immaterial that the present or prior burglaries did not involve
any actual violence, or that his criminal record is not even longer. Society, in the person
of the trial judge, is not compelled to define deviancy downward through the toleration of
violations of even its lesser mandates. Even with a tracking device on his ankle,
defendant demonstrated his inclination to break the law. Defendant has molested a
sibling in his home and broken into the homes of strangers and acquaintances. He has
not manifested any inclination with his present resources to change his ways, or identified
any feasible plan to do so. As the trial court’s resolution is not unreasonable, we reject
defendant’s claim of an abuse of discretion.




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                                 DISPOSITION

     The judgment is affirmed.


                                               BUTZ   , J.



We concur:



     NICHOLSON          , Acting P. J.



     MAURO              , J.




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