Filed 6/24/14 P. v. Fisher 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                                           NOT TO BE PUBLISHED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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                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C074582

                   Plaintiff and Respondent,                                    (Super. Ct. No. 62112580A)

         v.

ROBERT HENRY FISHER,

                   Defendant and Appellant.




         A first amended information accused defendant Robert Henry Fisher of second
degree burglary (count 1; Pen. Code, § 459; unless otherwise stated, statutory references
that follow are to the Penal Code); attempted vehicle theft (count 2; § 664, Veh. Code,
§ 10851, subd. (a)); receiving stolen property (count 3; § 496, subd. (a)); possession of
ammunition (count 4; § 30305, subd. (a)(1)); and bringing drugs into a jail (count 5;
§ 4573). As to counts 3 and 5, the information alleged that defendant committed the



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offenses while released on bail or on his own recognizance. (§ 12022.1.) As to counts 1,
2, 3, and 5, the information alleged that defendant had suffered two prior felony
convictions for which he served prison terms. (§ 667.5, subd. (b).) The People moved to
dismiss these allegations during trial after discovering that the certified records of
defendant’s convictions showed one was for a misdemeanor and the other was more than
five years old. The trial court granted the motion.
       A jury convicted defendant on counts 1 and 5 and found the on-bail enhancement
as to count 5 true. The jury acquitted defendant on counts 2 and 3 and failed to reach a
verdict on count 4, as to which the trial court declared a mistrial.
       Sentenced to a term of five years eight months in county jail (§ 1170, subd. (h)),
defendant contends the trial court erred prejudicially as to count 1 by failing to instruct
the jury sua sponte on simple trespass (§ 602.5, subd. (a)) as a lesser included offense of
burglary under the pleading test. We conclude substantial evidence did not warrant such
instruction and affirm the judgment.

                                 FACTS AND PROCEEDINGS

       Count 1 was pleaded in the first amended information as follows: “On or about
March 10, 2012, in the County of Placer, the crime of BURGLARY of UNINHABITED
DWELLING, in violation of Penal Code section 459, a felony, was committed by
[defendant], who did unlawfully enter 43955 Highway 20 with the intent to commit
larceny and any felony.”
       Section 602.5, entitled “Unauthorized Entry of Dwelling” provides in subdivision
(a) that: “Every person . . . who enters or remains in any noncommercial dwelling house,
apartment, or other residential place without consent of the owner, his or her agent, or the
person in lawful possession thereof, is guilty of a misdemeanor.” This crime is
commonly known as simple trespass.
       The evidence at trial showed the following as to count 1:


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       Derrick McDade owns a 20-acre property at 43955 State Highway 20 in Emigrant
Gap in the Sierra Nevada mountains, about 2.2 miles from Interstate 80. There is a four-
story, 10,000-square-foot log cabin on the property built by McDade’s father, but left
unfinished at his death in June 2010. The cabin is 60 or 70 yards from Highway 20 and
can be seen from the road. It was “[a]bout three-quarters done,” but lacked a door, and
the bottom story did not have a floor or windows installed. There is also a mobile home
on the property, which McDade’s father had planned to remove when the cabin was
finished. McDade did not live on the property, but normally visited it every week.
       McDade’s father was a “hoarder.” He stored many large objects in the cabin,
including boats, canoes, a hot tub, “big commercial batteries,” snowmobiles, a
snowblower, chainsaws, a bandsaw, and a sandblaster.
       On the evening of March 9, 2012, with a lot of snow on the ground, McDade went
to the property and noticed that some of his father’s canoes and boats, loaded with other
items from the cabin, were on the ground facing toward the back of the property. He saw
tracks going in that direction, ropes, and a sled with a winch on it. McDade called the
Placer County Sheriff’s Department, but since it was late and there was no four-wheel-
drive vehicle available to go onto the property, he agreed to have a sheriff’s deputy come
to the property the next morning.
       On the morning of March 10, 2012, McDade met with Placer County Sheriff’s
deputies, including Deputy Greg McKenzie. The deputies approached the cabin while
McDade waited by the road. McDade saw a person come out of the cabin and run
through the snow.
       Reserve Sheriff’s Deputy Edward Donnelly noticed a lot of tire tracks in front of
the cabin and a lot of foot tracks in and out of it. The snow was so deep that the deputies
had trouble approaching the front of the cabin. When they got to the cabin, they
investigated the cabin and the adjacent trailer, but found no one inside either one.



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       As Deputy Donnelly turned to the back of the cabin, where the tracks had been
seen, he saw a person later identified as defendant standing just outside the rear doorway,
10 or 15 feet in front of the aluminum boat placed outside the cabin. Donnelly and
Deputy McKenzie yelled at the person to show his hands and get on the ground, but he
did not respond. McKenzie tackled him and brought him down. Donnelly noticed that
defendant’s pants were wet and he was wearing tennis shoes, inappropriate clothing to be
“hiking around like that” with such deep snow on the ground.
       According to Deputy Donnelly, defendant gave the officers his first name and said
he was “just walking through.” The officers detained and eventually arrested defendant.
       It appeared to Deputy Donnelly from the signs of foot traffic back and forth
through the snow in the direction of Lake Spalding that a number of persons had used
that pathway. With the help of air support, the officers located two trucks a quarter of a
mile from the cabin; one was a gold GMC truck registered to defendant and another
person, and the other was a red Toyota Tacoma registered to Scott Fischer, named as a
codefendant but not tried in this case. The GMC truck had a bent front license plate and
a rear license plate partially obscured with black tape. The trucks were parked next to a
boat and a canoe full of personal property.
       Officers found a winch approximately 20 feet from the trucks. Its cable was
pointed toward the cabin and was tied around a tree. Another cable ran from the winch to
a pulley system that enabled the pulling of the boat and the canoe taken from the cabin
across the snow; this cable was attached to the canoe. A cable was attached to the boat,
from which drag marks extended across the ground.
       McDade identified the following items that had been removed from the cabin or
elsewhere on the property: a hot tub, two snowmobiles, antique snowshoes, a chainsaw
blade sharpener, a track snowblower, Craftsman tools, chainsaws, ballistic helmets, a
bandsaw, and a sander or brake equipment cleaner.



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       Defendant testified that he went to the property in the early morning of March 10,
2012, because Scott Fischer or someone calling from Fischer’s phone asked for help
getting their truck out of the snow “on Spalding Lake.” Defendant arrived at Spalding
Lake Road with his dog in his truck. Martin Nederhus, the other person defendant had
come to rescue, told him to pull over and park beside Fischer and Nederhus’s truck,
which did not look stuck to defendant. It was around 5:00 or 6:00 a.m., just starting to
get light outside, and defendant had not slept much the night before. After he parked, he
fell asleep. When he woke up again, the sun was up; he guessed it was around 9:00 a.m.
He let his dog out to run around in the snow, then put the dog back in the truck. He got
ready to drive away because he had a load of wood in his truck that he needed to deliver,
but decided not to leave because his friends might still need help. At some point he saw
“stuff” scattered on the ground and followed the trail, looking for Nederhus, who had
disappeared. When defendant rounded a corner, an officer yelled at him to get down or
turn around, tackled him, knocked him down in the snow, and handcuffed him.
Defendant might have told the police he was “just walking through,” but he did not
remember.
       Defendant never went inside any building on the property on March 10, 2012. He
did not even know there was a house on the property. He did not remember ever seeing
the winch found by the officers and did not know whose it was.

                                        DISCUSSION

       Defendant contends the trial court should have instructed the jury sua sponte on
simple trespass as a lesser included offense on count 1, and the court’s failure to do so
violated defendant’s federal constitutional right to due process.
       The trial court has a duty to instruct the jury sua sponte on lesser included offenses
if, and only if, substantial evidence exists that the defendant committed the lesser offense




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but not the greater. (People v. Blair (2005) 36 Cal.4th 686, 745; People v. Breverman
(1998) 19 Cal.4th 142, 162.)
       Defendant correctly acknowledges that simple trespass is not a lesser included
offense of burglary under the elements test because burglary, unlike trespass, can be
committed by one who has permission to enter a dwelling. (People v. Birks (1998)
19 Cal.4th 108, 118, fn. 8; People v. Lohbauer (1981) 29 Cal.3d 364, 369.) Instead,
trespass is a lesser related offense of burglary, on which the trial court has no duty to
instruct the jury. (People v. Foster (2010) 50 Cal.4th 1301, 1343-1344.)
       Defendant asserts, however, that trespass is a lesser included offense of burglary
under the accusatory pleading test if the charging allegations aver a form of burglary
which comprises the elements of trespass, including entry without the owner’s consent.
(See People v. Waidla (2000) 22 Cal.4th 690, 733-734; People v. Sakarias (2000)
22 Cal.4th 596, 622, fn. 4; People v. Wetmore (1978) 22 Cal.3d 318, 327, fn. 8.)
Assuming for argument’s sake that this legal proposition is correct, and further assuming
that count 1 as pleaded alleged all the elements of trespass, defendant was not entitled to
an instruction on trespass because there was no substantial evidence he committed that
offense rather than burglary.
       According to the prosecution’s evidence, defendant entered the cabin located at
43955 State Highway 20 with the intent to take part in the theft of items stored inside.
According to defendant, he never entered the cabin; he entered only the surrounding land.
In other words, defendant denied the key allegation of count 1 that he entered an
“uninhabited dwelling” at 43955 State Highway 20. Thus, defendant’s testimony was not
evidence that he entered or remained in a “noncommercial dwelling house, apartment, or
other residential place” without the owner’s consent which would have been required for
simple trespass here. (§ 602.5, subd. (a).) And there was no other evidence from which
the jury could have concluded that defendant entered the cabin unlawfully but did not
intend to commit any other crime inside.

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       Because defendant was not entitled to instruction on trespass as a lesser included
offense, we reject his contention that the omission of this instruction violated his federal
constitutional right to due process.

                                        DISPOSITION

       The judgment is affirmed.



                                                         HULL                  , Acting P. J.



We concur:



      MURRAY                , J.



      HOCH                  , J.




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