Filed 3/30/15 P. v. Sparks CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A140620
v.
LEROY MARK SPARKS,                                                       (Contra Costa County
                                                                         Super. Ct. No. 05-131898-9)
         Defendant and Appellant.


         Defendant Leroy Mark Sparks appeals from a judgment convicting him of first
degree burglary in violation of Penal Code sections 459 and 460, subdivision (a).1 On
appeal, defendant contends that there was insufficient evidence to establish a burglary,
and that the trial court committed certain prejudicial errors during the course of the jury
trial. We shall affirm the judgment.
                                                 BACKGROUND
         There was evidence of the following facts at trial. On Tuesday, March 27, 2012,
around 9:20 a.m., Steve Kaspar was driving past his friend Thomas Arbuckle’s house on
Pacheco Boulevard in Martinez. When he saw an unfamiliar blue bicycle and a backpack
lying on the driveway, he pulled over and walked to the back of the house. The back door
was closed but the hasp and padlock securing the door were broken away and dangling
from the building. He opened the door and saw defendant standing next to a black bag.
Defendant appeared to have something in his hands, which he set down when Kaspar


1
    All statutory references are to the Penal Code unless otherwise noted.


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entered. Kaspar asked defendant to explain himself and ordered him outside. On
receiving no satisfactory explanation for defendant’s presence, Kaspar asked defendant to
leave. Defendant picked up his backpack and bicycle, and rode south on Pacheco
Boulevard.
        Kaspar got into his vehicle and drove south on Pacheco Boulevard. He flagged
down a Concord police car and told Officer Eugene Davis about defendant’s presence in
the Arbuckle home. Kaspar described defendant as “a fellow on a bicycle with a
rucksack.” Davis spotted defendant with a green backpack and wearing a white baseball
cap and confirmed with Kaspar that defendant was the person he had seen in the house.
Davis made a U-turn to catch up with defendant but could not find him. When he
couldn’t spot defendant while heading southbound, he turned back northbound. He then
spotted defendant again traveling southbound, without a baseball cap. Davis made
another U-turn, caught up with defendant and detained him. Martinez police officers
arrived and arrested defendant after Kaspar identified him.
        Martinez Police Officer Adam Winslett confiscated defendant’s backpack for
Arbuckle to inspect but Arbuckle determined that none of the contents of the backpack
belonged to him. He later testified that nothing had been stolen from his house. Arbuckle
did testify that a black bag containing tools had been displaced from where he normally
kept it.
        Defendant did not testify at trial, but his attorney argued that the evidence did not
prove beyond a reasonable doubt that he entered the house with the intent to steal. He
suggested that defendant was homeless and entered the house simply to seek shelter on a
cold day.
        The jury found defendant guilty of first degree burglary and the court sentenced
him to four years in prison, plus fines and fees. Defendant timely noticed his appeal.
                                       DISCUSSION
           I. SUFFICIENCY OF EVIDENCE TO SUSTAIN THE CONVICTION OF BURGLARY
        Defendant contends the evidence was insufficient to prove beyond a reasonable
doubt that he entered the house with the intent to commit grand or petit larceny or any


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felony. He acknowledges that he committed trespass but argues that there is no evidence
that he took or intended to take anything from the house.
        When the evidentiary support for a conviction is challenged on appeal, the
appellate court must review the whole record in the light most favorable to the judgment
to determine whether there is substantial evidence permitting a reasonable trier of fact to
find a defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d
557, 562.) The reviewing court must presume in support of the judgment every fact the
trier could have reasonably deduced from the evidence. (Id. at p. 576.) Substantial
evidence must be reasonable in nature, credible and of solid value. (Ibid.)
        To commit burglary of the first degree, one must enter an inhabited dwelling
house with the intent to commit grand or petit larceny or any felony. (§§ 459, 460,
subd. (a)). There is no dispute that defendant entered the inhabited Arbuckle home
without the owner’s permission. The only question is whether he entered with the intent
to steal.
        Specific intent is rarely susceptible of direct proof and usually must be inferred
from the circumstances disclosed by the evidence. (People v. Earl (1973) 29 Cal.App.3d
894, 896, overruled on different point in People v. Duran (1976) 29 Cal.3d 282, 292.) If
the facts and circumstances support a reasonable inference that the defendant’s purpose in
entering the premises was to commit larceny or any felony, the conviction may not be
disturbed on appeal. (People v. Matson (1974) 13 Cal.3d 35, 41.) The judgment of the
trial court may be set aside only if it clearly appears that upon no hypothesis is there
sufficient substantial evidence to support it. (People v. Redmond (1969) 71 Cal.2d 745,
755.)
        Intent to steal may be inferred from forcible and unlawful entry. (People v.
Martone (1940) 38 Cal.App.2d 392, 393-394 [defendant found in early hours of the
morning standing next to a broken glass door with damaged locks, holding a wrench];
People v. Winters (1892) 93 Cal. 277, 280-282 [defendant found rummaging in closets,
allegedly seeking something to eat]; People v. Davis (1938) 24 Cal.App.2d 408, 410;
People v. Soto (1879) 53 Cal. 415, 416). In the present case, defendant forcibly entered


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the house, and offered no satisfactory explanation when questioned by Kaspar. This alone
may support a reasonable inference that he entered with the intent to steal.
       The inference is also supported by the fact that the owner’s black bag containing
tools was found to have been moved. The inference may reasonably be drawn that
defendant intended to steal the tools, regardless of the fact, which defendant stresses, that
Arbuckle did not testify to where the tools were normally kept. In People v. Fitch (1946)
73 Cal.App.2d 825, the defendant was found lying inside a restaurant with the window
broken and door open. Although he advanced another reason for his presence, the trier of
fact found that he entered with the intent to commit theft. The Court of Appeal held that
such intent could reasonably be inferred from the fact that some property had been moved
from its original place. (Ibid.) The same inference may be drawn here, further buttressed
by the fact that defendant dropped something he was holding when confronted by Kaspar.
       It is for the jury, and not the appellate court, to weigh the evidence. The
unauthorized forcible entry, lack of an explanation when confronted, and movement of
property, fully support the jury’s finding that defendant had larcenous intent when he
entered the Arbuckle house.
          II. FAILURE TO INSTRUCT THE JURY ON LESSER OFFENSE OF TRESPASS
       Defendant argues that the trial court erred in failing, sua sponte, to instruct the jury
on the elements of the lesser offense of trespass. He contends that trespass (§ 602.5, subd.
(a)) is a lesser included offense of burglary under the accusatory pleading test, and that
the trial court erred in not giving that instruction regardless of counsel’s failure to request
the instruction. We disagree.
       A trial court has a sua sponte duty to instruct the jury on a lesser included offense
“[w]hen there is substantial evidence that an element of the charged offense is missing,
but that the accused is guilty of” the lesser offense. (People v. Webster (1991) 54 Cal.3d
411, 443.) Substantial evidence in this context is evidence from which a reasonable jury
could conclude that the defendant committed the lesser, but not the greater, offense.
(People v. Ochoa (1998) 19 Cal.4th 353, 422.) An offense may be deemed a lesser
included offense under either of two tests. Under the so-called elements test, the elements


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of the greater offense as defined by statute must include all the elements of the lesser
offense. Defendant concedes that trespass is not a lesser included offense of burglary
under the elements test.
       Defendant contends trespass is a lesser included offense of the burglary charged in
this case under the second test, the so-called accusatory pleading test. “Under the
accusatory pleading test, if the facts actually alleged in the accusatory pleading include
all of the elements of the lesser offense, the latter is necessarily included in the former.”
(People v. Reed (2006) 38 Cal.4th 1224, 1227–1228.) “[S]o long as the prosecution has
chosen to allege a way of committing the greater offense that necessarily subsumes a
lesser offense, and so long as there is substantial evidence that the defendant committed
the lesser offense without also committing the greater, the trial court must instruct on the
lesser included offense.” (People v. Smith (2013) 57 Cal.4th 232, 244.)
       The information in the present case charged defendant with commission of first
degree residential burglary and alleged that defendant “did unlawfully enter a dwelling
house . . . with the intent to commit larceny and a felony.” Criminal trespass, also known
as “unauthorized entry,” is the entry of a noncommercial dwelling house without consent
of the owner. (§ 602.5, subd. (a).) Defendant argues that all the elements of trespass are
included in the burglary charged in the information and that he, therefore, could not have
committed the burglary with which he was charged without also committing trespass.
       Defendant’s contention is based on the incorrect premise that the nonconsensual
entry required for trespass is necessarily included in the allegation in the information that
defendant committed an “unlawful” entry. It is the defendant’s intent to steal or commit
another felony that makes an entry unlawful for the purpose of committing a burglary,
not the owner’s lack of consent. (See People v. Salemme (1992) 2 Cal.App.4th 775, 780-
781.) “ ‘The law . . . is that one [who enters a structure with the intent to commit petty
theft or a felony] may be convicted of burglary even if he enters with consent, provided
he does not have an unconditional possessory right to enter.’ ” (Id. at p. 780.) In People
v. Birks (1998) 19 Cal.4th 108, our Supreme Court in dictum confirmed that an allegation
of willful or unlawful entry in a pleading charging burglary does not allege a fact


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necessarily present in a trespass. The court stated: “Nor did the allegations set forth in
Count 1 of the instant information necessarily include criminal trespass. Count 1 simply
alleged that defendant ‘did wilfully and unlawfully enter a commercial building . . . with
intent to commit larceny and any felony’ ” (Id. at p. 118, fn. 8, italics added.)2 Trespass is
only a lesser related offense of burglary, as to which there is no sua sponte obligation to
instruct. (People v. Foster (2010) 50 Cal.4th 1301, 1343-1344.)
       Since there was no request for a trespass instruction, the court did not err in failing
to give one.
                              III. DENIAL OF A CONTINUANCE
       Defendant argues that the trial court wrongly excluded certain evidence but the
court made no ruling excluding the evidence to which defendant refers. Defendant’s
objection is that the court denied his request for a midtrial continuance to enable him to
obtain a witness who would testify concerning a previous break in of Arbuckle’s home.
Arbuckle testified that on December 13, 2011, his house had been broken into through
the rear door, and nothing had been stolen. He also testified that a Mr. Hudson, his
neighbor, had given him some information about the incident. According to defendant,
Hudson told Arbuckle that he had seen a blue bicycle on the driveway on the day of the
incident. Defendant sought a day’s continuance to permit him to get Hudson to court to
testify about the incident and the bicycle. He argued that this testimony would support the
inference that he broke into the house in December in a similar manner and did not steal
anything, therefore showing that he similarly did not wish to steal anything in the charged
incident and sought only shelter.
       Granting or denying a motion for midtrial continuance is within the sound
discretion of the trial court, which must consider the benefit the moving party anticipates
from additional evidence that may be obtained by a continuance, and the likelihood the
benefit will result. (People v. Fudge (1994) 7 Cal.4th 1075, 1105–1106.) In the absence

2
  Moreover, contrary to the contention made at oral argument, the allegations in the
information that the charged burglary is a violent felony under section 667.5,
subdivision (c)(21) does not imply that the entry was made without consent.


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of an abuse of discretion and prejudice, denial of the motion does not require reversal of a
conviction. (People v. Zapien (1993) 4 Cal.4th 929, 972.)
       The court denied defendant’s request, referring to Evidence Code section 352 and
concluding that the evidence defendant sought was not probative, and that interrupting
the trial would be a waste of time. The court stated that Hudson’s statement would not
provide relevant evidence because there was no evidence that defendant had committed
the December 2011 break-in and that any suggestion that the testimony would bear on
defendant’s state of mind in March 2012 would be pure speculation. Whatever the
probative value of the testimony defendant was hoping to produce, whether the
anticipated evidence was sufficiently significant to justify a trial continuance was a
matter within the court’s discretion. We cannot say the trial court’s decision was so
arbitrary or irrational as to constitute an abuse of discretion. There was, in fact, no other
testimony or proffered testimony that defendant had committed the December 2011
break-in; that the bicycle observed by Hudson was the same bicycle defendant was riding
on March 27, 2012; or that, even if the defendant was the person who broke into
Arbuckle’s home in December 2011, that he did not then intend to steal something. The
court could reasonably have concluded that the marginal value of such evidence to show
defendant’s intent in March 2012 was insufficient to justify a continuance, especially
since there was no explanation for not having the witness available to testify in a timely
manner.
                   IV. TRIAL COURT’S RESPONSE TO JURY’S QUESTION
       Defendant’s next ground of appeal is that the trial court erred by improperly
answering a question from the jury during its deliberations relating to the instruction on
theft by larceny. In the initial jury instructions the trial court gave the CALCRIM
No. 1700 instruction on burglary, which requires the defendant to have entered the
building with the intent to commit theft, and the court gave the CALCRIM No. 1800
instruction on the four elements of theft by larceny. While deliberating, the jury sent a
note with the following question: “Can you please clarify Pen[al] Code 484? Do all four
items have to occur?” After discussing the question with counsel, the court responded to


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the question as follows: “CALCRIM 1800 defines a violation of Penal Code 484, theft by
larceny, which is not the charged offense. Please refer to CALCRIM No. 1700 for the
elements of the charged offense in this case.” The jury promptly returned its guilty
verdict.
       Initially, any objection to the court’s response was waived because defense
counsel participated in the formulation of a response and affirmatively approved it.
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.) The court confirmed three times that
the instruction was agreeable to both counsel. Thus, the issue has not been preserved for
appeal. (People v. Boyette (2002) 29 Cal.4th 381, 430.)
       In any case, the court’s response was not objectionable. “When a jury asks a
question after retiring for deliberation, ‘[s]ection 1138 imposes upon the court a duty to
provide the jury with information the jury desires on points of law.’ ” 3 (People v. Eid
(2010) 187 Cal.App.4th 859, 881–882.) This does not mean the court necessarily must
elaborate on the standard instructions. (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Where “the original instructions are themselves full and complete, the court has
discretion under section 1138 to determine what additional explanations are sufficient to
satisfy the jury's request for information.” (People v. Gonzalez (1990) 51 Cal.3d 1179,
1213, superseded by statute on different grounds in In re Steale (2004) 32 Cal.4th 682,
690.) Defendant argues that the court’s answer did not clarify the jury’s apparent
confusion as to the relationship between theft by larceny and burglary, and misdirected
the jury from considering the elements of theft. He argues that the correct response would
have been to specify that the defendant must have intended all the elements of the crime
of theft at the time of entry. We disagree.



3
 Section 1138 provides: “After the jury have retired for deliberation, if there be any
disagreement between them as to the testimony, or if they desire to be informed on any
point of law arising in the case, they must require the officer to conduct them into court.
Upon being brought into court, the information required must be given in the presence of,
or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they
have been called.”


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       The initial burglary instructions clearly and correctly stated that to find defendant
guilty of burglary, the jury must find, beyond a reasonable doubt, that defendant intended
to commit theft at the time of entry. Defendant does not contend there is any error or
ambiguity in this instruction, and there is none. In response to the jury’s question, the
court referred the jury back to the correct instructions including CALCRIM No. 1800
defining the elements of theft by larceny, and CALCRIM No. 1700 defining burglary to
include the intent to commit such theft. There was no need for the court to say more.
Both attorneys had argued whether the circumstantial evidence (also defined in the initial
instructions) did or did not prove that defendant entered the Arbuckle home with such an
intent. There is no reason to assume that after the court responded to the jury’s question it
misunderstood what it was necessary to find in order to conclude that defendant was
guilty of the charged burglary.
                              V. JURY INSTRUCTION ON FLIGHT
       Defendant’s final argument is that the trial court erred in giving an instruction on
flight as the prosecution requested. In support of its request, the prosecution argued that
Officer Davis initially lost sight of defendant after making a U-turn, and that defendant
appeared later without his cap. The prosecutor argued that it was a reasonable inference
that defendant turned down a side street and removed his cap when he saw the police
officer pull over and turn around, in order to avoid the officer and disguise his identity.
Defendant contends there was no evidence—as opposed to speculation—that he slipped
down a side street, and that it is unreasonable to infer he removed his hat as an attempt to
disguise himself.
       Section 1127c requires the trial court to give an instruction on flight where
evidence of flight is argued to reflect guilt. The court gave the CALCRIM No. 372 flight
instruction which read: “If the defendant fled or tried to flee immediately after the crime
was committed or after he was accused of committing the crime, that conduct may show
that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is
up to you to decide the meaning and importance of that conduct. However, evidence that
the defendant fled or tried to flee cannot prove guilt by itself.”


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       “An instruction on flight is properly given if the jury could reasonably infer that
the defendant's flight reflected consciousness of guilt, and flight requires neither the
physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly
does require, however, a purpose to avoid being observed or arrested.” (People v.
Crandell (1988) 46 Cal.3d 833, 869, revd. on different grounds by People v. Crayton
(2002) 28 Cal.4th 346, 364-365; see also People v. Carter (2005) 36 Cal.4th 1114, 1182.)
Here, defendant had just been caught inside a home without permission. The fact that the
officer lost sight of him after Kaspar pointed him out to the officer, while the officer was
simply executing a U-turn, and that the defendant, for no apparent reason, altered his
appearance by removing his cap, supports a reasonable, if not a conclusive, inference that
defendant was fleeing and attempting to avoid arrest. The instruction merely permitted
the jury to consider evidence of flight in deciding defendant's guilt or innocence; it did
not suggest that the jury should consider such evidence as dispositive. (People v. Carter,
supra, p. 1182.) The court did not err in giving the instruction.
                                      DISPOSITION
       The judgment is affirmed.

                                                  _________________________
                                                  Pollak, Acting P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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