Filed 1/22/16 P. v. Sheehan CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066770

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS269583)

SCOTT SHEEHAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Dwayne

K. Moring, Judge. Affirmed in part; reversed in part and remanded.

         Carl Fabian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Daniel

Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

         Scott Sheehan appeals a judgment following his jury conviction of first degree

burglary. On appeal, he contends the trial court erred by: (1) not instructing sua sponte
on trespass as a lesser included offense (LIO) of burglary; (2) instructing with CALCRIM

No. 315; and (3) not striking a prison prior allegation. We reverse the court's imposition

of a one-year enhancement for a prison prior allegation and affirm the judgment in all

other respects.

                  FACTUAL AND PROCEDURAL BACKGROUND

       At about 7:30 p.m. on January 7, 2014, James Geering received a call from his

alarm company informing him there had been an intrusion at his Chula Vista home. One

pane of the tempered glass of his front door had been shattered. George Smith, Geering's

neighbor, was in his backyard when he heard an alarm sound. Smith saw Sheehan

leaving Geering's home through its front door. Sheehan walked about 100 feet to a

purple van and drove away. The van was an older model and had a tire on the left side of

its back door and a ladder going up the right side of the back door. Smith called 911 and,

when police arrived a few minutes later, gave them a description of the van and the

person he saw leaving Geering's home.

       At about 9:00 p.m. that evening, Chula Vista Police Officer Christopher Fisher

saw a van matching the description Smith had given him. He detained its driver,

Sheehan, who had a flashlight in his pocket. Sheehan's jacket had small shards of glass

on it. A hammer and bag of tools were next to the driver's seat. Smith was taken to the

site of the detention and positively identified both Sheehan and the van.




                                             2
       An amended information charged Sheehan with one count of first degree burglary

(Pen. Code, §§ 459, 460)1 and also alleged he had served three prior prison terms

(§§ 667.5, subd. (b), 668), had three prior serious felony convictions (§§ 667, subd.

(a)(1), 668, 1192.7, subd. (c)), and had three prior strike convictions (§§ 667, subd. (b)-

(i), 1170.12, 668). At trial, Geering, Smith, and Fisher testified substantially as described

above. Geering testified he had never given Sheehan permission to enter his home. He

also testified he was a firefighter and knew how difficult it is to break tempered glass.

Metal impact or other tools (e.g., a hammer) are usually needed to break it.

       In his defense, Sheehan presented the testimony of Sonia Vega, his former

girlfriend, who stated that before the incident she had shattered one of the windows of

Sheehan's van and caused glass to be everywhere inside the van. Marina Ogdo, a defense

investigator, testified Smith was about 70 feet from Geering's home when he first saw

Sheehan. She also testified the rear driver's side window of Sheehan's van was broken.

Scott Fraser, a psychologist, testified about the reliability of eyewitness identifications

and that a witness's certainty regarding his or her identification does not correlate highly

with the accuracy of that identification. He testified that at a distance of 70 feet there is

poor reliability of accurate recognition of a person, especially when it is dark.

       The jury found Sheehan guilty of first degree burglary. In a bifurcated trial, the

court found true the allegations Sheehan had three prior serious felony convictions. It

dismissed the allegations of his first and second prison priors and found true the third


1      All statutory references are to the Penal Code.

                                               3
prison prior allegation. The court found he had three prior strike convictions, but granted

Sheehan's Romero2 motion and struck two of them. The court sentenced Sheehan to a

total term of 20 years in prison, consisting of two years for his burglary conviction,

doubled to four years under the three strikes law, plus three consecutive five-year terms

for his three prior serious felony convictions and a consecutive one-year term for his

prison prior. Sheehan timely filed a notice of appeal.

                                       DISCUSSION

                                               I

                       Instruction on Trespass as an LIO of Burglary

       Sheehan contends the trial court erred by not instructing sua sponte on trespass as

an LIO of burglary. Alternatively, he contends he was denied effective assistance of

counsel when his defense counsel did not request an instruction on trespass.

                                              A

       "A trial court has a sua sponte obligation to instruct the jury on any uncharged

offense that is lesser than, and included in, a greater charged offense, but only if there is

substantial evidence supporting a jury determination that the defendant was in fact guilty

only of the lesser offense. [Citations.] An uncharged offense is included in a greater

charged offense if either (1) the greater offense, as defined by statute, cannot be

committed without also committing the lesser (the elements test), or (2) the language of




2      People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

                                              4
the accusatory pleading encompasses all the elements of the lesser offense (the

accusatory pleading test)." (People v. Parson (2008) 44 Cal.4th 332, 348-349 (Parson).)

       "Under the accusatory pleading test, a court reviews the accusatory pleading to

determine whether the facts actually alleged include all of the elements of the uncharged

lesser offense; if it does, then the latter is necessarily included in the former." (Parson,

supra, 44 Cal.4th at p. 349.) We review de novo, or independently, a trial court's failure

to give an instruction on a lesser included offense. (People v. Verdugo (2010) 50 Cal.4th

263, 293.)

                                                B

       The amended information charged Sheehan with the offense of first degree

burglary, alleging:

             "On or about January 7, 2014, [Sheehan] did unlawfully enter a
             building with the intent to commit theft, in violation of [section] 459.
             [¶] And it is further alleged that said burglary was a burglary of an
             inhabited dwelling house, within the meaning of [section] 460."

The trial court did not instruct, nor did Sheehan's defense counsel request an instruction,

on trespass as an LIO of burglary.

       To prove the offense of burglary, the prosecution generally must prove the

defendant: (1) entered a building; and (2) when entering the building, he or she intended

to commit theft or any felony. (CALCRIM Nos. 1800, 1801.) To prove the offense of

criminal trespass, the prosecution must prove the defendant: (1) willfully entered a

dwelling house belonging to someone else; (2) entered or remained without the consent

of the owner; and (3) was not a public officer. (CALCRIM No. 2932.)


                                                5
                                              C

       Sheehan concedes the California Supreme Court has held trespass is not an LIO of

burglary under the elements test. (People v. Lohbauer (1981) 29 Cal.3d 364, 368-369

(Lohbauer) [trespass is not an LIO of burglary because burglary may be committed by

one who has permission to enter a dwelling]; People v. Foster (2010) 50 Cal.4th 1301,

1343-1344 [trespass is a lesser related offense, not an LIO, of burglary].) Nevertheless,

he asserts the California Supreme Court has not decided the question of whether trespass

may be an LIO of burglary under the accusatory pleadings test. He argues that, based on

the allegations of the amended information in this case, trespass is an LIO of the charged

burglary.

       However, Lohbauer concluded trespass is "not encompassed within the language

of the information which charged defendant with having 'entered the house of [victim]

. . . with intent to commit theft [i.e., burglary].' " (People v. Lohbauer, supra, 29 Cal.3d

at p. 369.) Likewise, People v. Birks (1998) 19 Cal.4th 108 stated: "[T]he allegations [of

burglary] set forth in Count 1 of the instant information [did not] necessarily include

criminal trespass. Count 1 simply alleged that defendant 'did willfully and unlawfully

enter a commercial building . . . with intent to commit larceny and any felony.' " (Id. at

p. 118, fn. 8.) Based on the similarity of the allegations in the instant amended

information to the allegations of the accusatory pleadings in Lohbauer and Birks, we

conclude the burglary alleged in the amended information did not necessarily include the

offense of trespass. It simply alleged Sheehan "did unlawfully enter a building with the

intent to commit theft." As the People assert, the unlawful entry of a building, as alleged

                                              6
in this case, is not the same as entry without consent for the offense of trespass. If a

defendant enters with the intent to commit theft, it is that intent that makes the entry

unlawful and, unlike trespass, he or she is guilty of burglary even if the defendant was

invited onto the premises.3 We conclude trespass is not an LIO of burglary under the

accusatory pleadings test based on the allegations of the amended information in this

case. Therefore, the trial court did not have a sua sponte duty to instruct on trespass as an

LIO of burglary.

       The cases cited by Sheehan are either inapposite and/or did not decide this issue

and therefore do not persuade us to reach a contrary conclusion. (See, e.g., People v.

Sakarias (2000) 22 Cal.4th 596, 622, fn. 4 [court concluded there was no substantial

evidence to support instruction on trespass (i.e., defendant entered without the intent to

steal)]; People v. Waidla (2000) 22 Cal.4th 690, 733, 735 [court assumed trespass was an

LIO of burglary for purposes of discussion only; in any event, court concluded there was

no substantial evidence that would absolve defendant of burglary and not trespass].)

Furthermore, to the extent Sheehan correctly argues Birks's language is dicta, we

nevertheless find its reasoning persuasive and conclude it supports our conclusion.




3      Contrary to Sheehan's assertion, assuming he entered the building without the
consent of the owner, it is not the absence of that consent, but rather his entry with intent
to commit theft, that made his entry "unlawful" within the meaning of the accusatory
pleading in this case.

                                              7
                                             D

       Assuming arguendo trespass was an LIO of burglary under the accusatory

pleadings test, we nevertheless conclude the trial court did not have a sua sponte duty to

instruct on trespass because there was no substantial evidence to support that instruction

based on the record in this case. A trial court has a sua sponte duty to instruct on an LIO

"only if there is substantial evidence supporting a jury determination that the defendant

was in fact guilty only of the lesser offense." (Parsons, supra, 44 Cal.4th at pp. 348-

349.) As the People assert, even assuming there was substantial evidence to support a

finding Sheehan did not have the requisite intent for burglary, there was insufficient

evidence to support a finding by the jury that he, in fact, entered Geering's home but did

so without that intent. Sheehan's defense at trial was that he was misidentified as the

person who entered Geering's home and that he never entered the home. Therefore,

based on the evidence at trial and Sheehan's defense theory, he was guilty of either

burglary or no offense whatsoever (e.g., not guilty of trespass). There is insufficient

evidence to support a finding he entered the home without the intent to commit theft or

any felony. The court properly did not instruct on trespass as an LIO of burglary on the

alternative ground that there was insufficient evidence to support a finding that he was, in

fact, guilty of only trespass. (Ibid.)

                                             E

       Assuming arguendo there was substantial evidence to support a finding Sheehan

committed only trespass and not burglary and trial court had a sua sponte duty to instruct

on trespass as an LIO of burglary, we nevertheless conclude that presumed error was

                                             8
harmless. Based on our review of the record, we conclude it is not reasonably probable

Sheehan would have obtained a more favorable verdict had the court instructed on

trespass as an LIO of burglary. (People v. Breverman (1998) 19 Cal.4th 142, 165; People

v. Watson (1956) 46 Cal.2d 818, 836.) The jury presumably found credible Smith's

eyewitness identification of Sheehan as the person who entered Geering's home. Sheehan

was stopped soon after the incident driving a purple van that matched the description

Smith gave to police. Sheehan had a flashlight, a common burglary tool, on him and

other tools were in his van. His jacket had shards of glass on it, which the jury could

reasonably infer came from his breaking the glass pane of Geering's front door.

Therefore, there is strong evidence to support inferences that Sheehan broke the glass of

Geering's front door and entered his home with the intent to commit theft, but then left

the home after the alarm sounded and fled in his purple van. (People v. Jordan (1962)

204 Cal.App.2d 782, 786 [burglarious intent can reasonably be inferred from unlawful

entry alone].) The jury not only rejected Sheehan's defense that he was not the person

who entered Geering's home, but very likely would have rejected any theory that he did,

in fact, enter that home but did so without an intent to commit theft or any felony (i.e.,

was guilty of trespass). Had the trial court instructed the jury on trespass as an LIO of

burglary, it is not reasonably probable Sheehan would have obtained a more favorable

result (e.g., conviction of only trespass).

                                              F

       Sheehan also argues he was denied effective assistance of counsel when his

counsel did not request an instruction on trespass. To prove ineffective assistance of

                                              9
counsel, he must show, by a preponderance of the evidence, that (1) his counsel's

representation was deficient (i.e., was below prevailing professional standards of

reasonableness), and (2) he was prejudiced by that deficient performance (i.e., it is

reasonably probable that, but for his counsel's deficient performance, he would have

obtained a more favorable result). (Strickland v. Washington (1984) 466 U.S. 668, 687,

691-692; People v. Ledesma (1987) 43 Cal.3d 171, 215-218; People v. Pope (1979) 23

Cal.3d 412, 425.)

       Based on our review of the record, we conclude Sheehan has not shown either that

his counsel performed deficiently by not requesting an instruction on trespass or that he

was prejudiced by that purported deficient performance. Because we concluded above

that trespass was not an LIO of burglary under either the elements test or the accusatory

pleading test, his counsel did not perform deficiently by not requesting an instruction on

trespass. Likewise, because we concluded above there was insufficient evidence to

support an instruction on trespass and, in any event, any failure to instruct on trespass

was harmless error, Sheehan cannot show he was prejudiced by his counsel's purported

deficient performance by failing to request that instruction. (Strickland v. Washington,

supra, 466 U.S. at pp. 687, 691-692; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218;

People v. Pope, supra, 23 Cal.3d at p. 425.) Sheehan was not denied his right to effective

assistance of counsel.




                                             10
                                             II

                                    CALCRIM No. 315

       Sheehan contends the trial court erred by instructing the jury with a version of

CALCRIM No. 315 that included the certainty of the witness's identification as a factor

in evaluating the accuracy of the identification.

                                             A

       The prosecution requested an instruction with CALCRIM No. 315 on the jury's

evaluation of eyewitness identification evidence. Sheehan objected to the part of the

proposed instruction that stated: "How certain was the witness when he or she made an

identification?" The trial court overruled Sheehan's objection and instructed the jury with

a version of CALCRIM No. 315 that stated in pertinent part:

          "You have heard eyewitness testimony identifying the defendant.
          As with any other witness, you must decide whether an eyewitness
          gave truthful and accurate testimony. In evaluating identification
          testimony, consider the following questions: [¶] . . . [¶]

          "How certain was the witness when he or she made an
          identification?" (Italics added.)

That "certainty factor" was one of 14 factors listed for the jury to consider in evaluating

an eyewitness's identification testimony.

                                             B

       We conclude the trial court properly instructed that a witness's certainty of his or

her identification may be considered by the jury in evaluating that witness's identification

testimony. CALJIC No. 2.92, a predecessor to CALCRIM No. 315, was upheld in

People v. Johnson (1992) 3 Cal.4th 1183, 1230-1232. (See People v. Wright (1988) 45

                                             11
Cal.3d 1126, 1141-1143 [approving CALJIC No. 2.92, which included the certainty

factor at that time].) When Johnson was issued, CALJIC No. 2.92 included among the

factors the jury should consider in evaluating eyewitness identification testimony " '[t]he

extent to which the witness was either certain or uncertain of the identification.' "

(Johnson, at pp. 1230-1231, fn. 12.) Johnson rejected the defendant's contention that the

trial court erred in instructing the jury that the extent to which the witness was either

certain or uncertain of the identification was a factor to consider in assessing eyewitness

identification testimony. (Id. at pp. 1231-1232.)

       Although Sheehan correctly notes the California Supreme Court has not, whether

in Johnson or otherwise, expressly addressed the question of whether inclusion of the

certainty factor violates the federal and/or California Constitutions, we nevertheless

presume the Supreme Court would not have approved that instruction were it

constitutionally infirm. Furthermore, other cases issued after Johnson have rejected the

argument Sheehan makes in this appeal. (People v. Sullivan (2007) 151 Cal.App.4th 524,

561-562; People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303.) Sullivan stated:

"As in Gaglione, we therefore 'reject defendant's arguments and find no error in CALJIC

No. 2.92' as given with reference to degree of certainty as a factor in assessing the

reliability of eyewitness identification testimony." (Sullivan, at p. 562.) We believe

those cases' conclusions regarding the witness certainty factor in CALJIC No. 2.92

should likewise be applied to the trial court's instruction with CALCRIM No. 315 in this

case. CALCRIM No. 315 does not require a jury to consider a witness's certainty or

uncertainty. Contrary to Sheehan's assertion, it does not make any correlation between

                                              12
the witness's level of certainty and accuracy of his or her identification. It does not imply

witnesses are more believable if they are certain of their identifications. Rather,

CALCRIM No. 315 properly permits a jury to consider an eyewitness's certainty at the

time of his or her identification. We conclude the trial court did not err by instructing

that a witness's certainty of his or her identification may be considered by the jury in

evaluating that witness's identification testimony.

       Sheehan has not cited any California case that held erroneous, whether as a

violation of the federal and/or California Constitutions or otherwise, an instruction that

witness certainty is a factor in the jury's evaluation of identification testimony. His

citations to cases from other jurisdictions and psychology journal articles do not persuade

us to reach a contrary conclusion. (See, e.g., State v. Lawson (Or. 2012) 291 P.3d 673;

State v. Long (Utah 1986) 721 P.2d 483; Brodes v. State (Ga. 2005) 614 S.E.2d 766.)

                                             III

                      Failure to Strike Sheehan's Third Prison Prior

       Sheehan contends, and the People agree, the trial court erred by not striking the

third prison prior allegation and instead imposing a consecutive one-year enhancement

under section 667.5, subdivision (b). He correctly argues the court should have stricken

that allegation pursuant to People v. Jones (1993) 5 Cal.4th 1142 because the same prior

conviction (on Jul. 29, 1996, in S.D. County Super. Ct. No. SCD119303) was used by the

court to impose a consecutive five-year enhancement under section 667, subdivision

(a)(1). In Jones, the California Supreme Court held: "[W]hen multiple statutory

enhancement provisions are available for the same prior offense, one of which is a

                                             13
section 667 enhancement, the greatest enhancement, but only that one, will apply."

(Jones, at p. 1150.) Therefore, the trial court should have stricken the lesser enhancement

for that prior offense (i.e., the § 667.5, subd. (b), one-year enhancement). By not doing

so, the court erred.4

                                      DISPOSITION

       The trial court's imposition of a consecutive one-year enhancement under section

667.5, subdivision (b), is reversed. In all other respects, the judgment is affirmed. The

matter is remanded to the trial court for resentencing consistent with this opinion.




                                                                           McDONALD, J.

I CONCUR:


HUFFMAN, Acting P. J.




4     Because we dispose of this contention based on Jones, we need not address
Sheehan's alternative arguments for striking the section 667.5, subdivision (b),
enhancement.
                                             14
AARON, J.

       While I concur in the result, I disagree with the majority's conclusion that

CALCRIM No. 315 "does not imply witnesses are more believable if they are certain of

their identifications." (Maj. opn. ante, at p. 13) On the contrary, this is precisely what

the instruction implies when it tells jurors that, in evaluating eyewitness testimony, they

may consider, among other questions, "How certain was the witness when he or she made

an identification?"

       The majority observes that the California Supreme Court approved the predecessor

to CALCRIM No. 315—CALJIC No. 2.92—in People v. Wright (1988) 45 Cal.3d 1126,

1141-1143 (Wright). However, in Wright, the court's focus was the propriety of giving

such an instruction when requested by the defendant, and where that instruction

" ' "directs attention to evidence from . . . which a reasonable doubt of guilt could be

engendered." ' " (Id. at p. 1140.) In this vein, the Wright court noted that there exists

" 'an unbroken string of authorities [that] requires the giving of factually appropriate

pinpoint jury instructions correlating the issues of identity and reasonable doubt.' "

(Ibid.) Thus, the Wright court was addressing a situation that is clearly distinguishable

from that in the present case. Unlike in this case, the Wright court had no occasion to

consider a defendant's claim that a jury instruction was improper because it implied that a

witness's certainty increased the witness's believability.

       Significantly, in Wright, the court cautioned that an instruction concerning

eyewitness identification factors should list, in a neutral manner, the relevant factors
supported by the evidence and "should not take a position as to the impact of each of the

psychological factors listed." (Wright, supra, 45 Cal.3d at p. 1141.) The court further

cautioned that such an instruction should not "improperly invad[e] the domain of either

jury or expert witness." (Id. at p. 1043.)

       Putting aside the obvious distinction between concluding that it is error to refuse

to give a jury instruction requested by the defendant that deals with identification in the

context of reasonable doubt, and concluding that it is not error to give an instruction on

eyewitness identification to which the defendant raised an objection, CALCRIM No. 315,

as currently worded, fails to meet the standards set forth in Wright in that it does take a

position as to the impact of the certainty of the eyewitness by implying that the more

certain the eyewitness is of his identification, the more reliable the witness's

identification. The failure of the instruction to meet the Wright standards is particularly

glaring when, as here, the instruction is given in a case in which the defendant has

presented expert testimony to the effect that an eyewitness's level of certainty is unrelated

to the reliability of the witness's identification.

       The instruction may also "invad[e] the domain of . . . [an] expert witness,"

(Wright, supra, 45 Cal.3d at p. 1143) as this case exquisitely demonstrates. The sole

eyewitness "positively" identified the defendant in a curbside encounter after the

burglary. Appellant's expert on eyewitness identification testified, generally, that an

eyewitness's perceived sense of certainty about his or her identification is not a good

indicator of the accuracy of the identification. The prosecutor did not have to present its



                                                2
own expert to counter appellant's expert's testimony. Instead, he was able to—and did—

merely cite to CALCRIM No. 315, and in the process, exacerbated the problem by telling

the jurors not that they may consider the eyewitness's certainty, which CALCRIM No.

315 states, but rather, that they must consider it:

           "What else is [appellant's expert] wrong about? He says don't ever
           confuse certainty with accuracy. You should actually throw that out
           the window. Don't overlook certainty. It's unreliable. Science says
           so. He is wrong. He is wrong about that. [¶] It's right there in the
           jury instruction. Jury instruction 315, the judge read it to you
           yesterday. You are to consider certainty. It's absolutely, according
           to the law, one of the factors you must consider." (Italics added.)

       Thus, in order to counter the defendant's expert's testimony that the degree of

certainty of an eyewitness is not correlated with the reliability of the witness's

identification, the prosecutor had only to point to CALCRIM No. 315, which, in effect,

told the jury that the defendant's expert was wrong.

       Research concerning the effect of certainty on the reliability of eyewitness

identifications, is decidedly mixed. The giving of CALCRIM No. 315 in this case was

problematic in that it, in effect, took sides in the debate, instructing jurors that, in fact, the

more certain an eyewitness is of his identification, the more reliable his identification is,

thereby entirely undermining the defendant's expert witness's testimony.

       While I do not believe that giving this instruction caused prejudicial error in this

case in view of the strength of the evidence implicating appellant, it clearly could do so in

other cases. Accordingly, I concur only in the result. In addition, I would respectfully

suggest that this case affords the Supreme Court the opportunity to consider whether the



                                                3
giving of CALCRIM No. 315 under these circumstances comports with the principles

underlying the holding in Wright.



                                                                   AARON, J.




                                         4
