Filed 6/12/15 P. v. Canady CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068093
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F13903804)
                   v.

CHARLES CANADY,
                                                                                        OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Denise R.
Whitehead, Judge.
         C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez, and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-
         A Fresno County jury found Charles Canady guilty of multiple felony offenses
including attempted burglary, burglary, making criminal threats, and assault with a
deadly weapon. Canady appeals the conviction of assault with a deadly weapon on
grounds that the trial court failed to provide a sua sponte instruction on the lesser
included offense of misdemeanor assault. He further contends that other jury instructions
were potentially misleading. Finally, he alleges that while a single act of burglary may
have occurred, the evidence does not support a separate conviction for attempted
burglary. We affirm the judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
       Canady was charged by amended information with attempted first degree
residential burglary (Count 1; Pen. Code, §§ 664, 459, 460, subd. (a); all further statutory
references are to this code), making criminal threats (Counts 2 & 3; § 422), first degree
residential burglary (Count 4; §§ 459, 460, subd. (a)), assault with a deadly weapon
(Count 5; § 245, subd. (a)(1)), and misdemeanor vandalism (Count 6; § 594, subd.
(a)(2)). An enhancement allegation was attached to Count 5 for infliction of great bodily
injury (§ 12022.7, subd. (a)). It was also alleged that Canady had suffered a prior strike
and serious felony conviction (§§ 667; 1170.12), and served a prior prison term within
the meaning of section 667.5, subdivision (b). The case went to trial in July 2013.
Prosecution Case
       On April 27, 2013, Canady made an unscheduled visit to the home of his ex-wife,
Tia Marshall. Ms. Marshall had custody of their two minor children, and Canady had
apparently intended to surprise the kids with some gifts. His knock at the front door of
the home was answered by Ms. Marshall’s boyfriend, Robert Booker. Separated by a
security screen, the two men had a brief conversation during which Canady demanded to
see his children. Mr. Booker refused to open the door.
       After being denied admission to the home, Canady walked over to a window that
looked into Ms. Marshall’s kitchen and smashed it with a tire iron.1 He attempted to

       1Both parties use the term “tire iron” in their briefs, which is how the item was
described by police officers who provided foundational testimony for its admission into

                                              2.
climb through the opening, but fell backwards onto the ground. In the midst of this
activity, Canady told Ms. Marshall, “I’m going to come in. I’m going to kill you. I’m
going to beat your ass, bitch.” She called 911 for help.
       While Ms. Marshall was speaking to a 911 dispatcher, Canady entered her back
yard and approached a sliding glass door that led into the house from a patio area. Upon
seeing Canady move to the back patio, Mr. Booker armed himself with a knife and stood
in front of the sliding glass door. Canady began directing his threats at Mr. Booker,
screaming, “I’m going to kill you!” He then used the tire iron to break through the door.
The weapon struck Mr. Booker in the thumb as he raised his hand to protect himself,
inflicting a wound that required eight stitches to close. Canady entered the house and
began grappling with Mr. Booker. The victim was eventually able to place Canady in a
headlock and kept him pinned down until the police arrived.
Defense Case
       The defendant testified on his own behalf. He described arriving at
Ms. Marshall’s residence and being turned away without explanation. While trying to
engage his ex-wife in conversation, he looked through a window and saw his three-year-
old daughter standing next to Mr. Booker, who was wearing nothing but a pair of “Hanes
drawers.” Feeling offended by what he had seen, Canady went out to his car and
retrieved the tire iron.
       In Canady’s version of events, he “busted the first window” with the tire iron but
made no attempt to climb through it. Rather than threatening Ms. Marshall with harm, he
had said, “Bitch, you bought the house in my name, I can break any window I want.”
Next, he “went around to the back to break the back window,” but turned to run away as

evidence. The metal object was estimated to weigh approximately five to six pounds.
Based on the testimony of several witnesses, it appears the item was actually a
component of a jack that is used to lift a vehicle off the ground in order to facilitate the
changing of a tire, or possibly the jack itself. For ease of reference, we will adopt the
terminology used by the parties.


                                              3.
soon as the glass shattered. As he was trying to leave, Mr. Booker exited the home and
attacked him with a knife. Canady denied entering the house or having any intent to do
so. He also denied attempting to strike, or actually striking, Mr. Booker with the tire
iron.
Verdict and Sentencing
        Canady was convicted as charged on all counts. The great bodily injury
enhancement alleged in connection with Count 5 was found not to be true. A bifurcated
bench trial resulted in true findings on the remaining enhancement allegations.
        On September 26, 2013, Canady was sentenced to an aggregate term of 14 years
and 4 months in prison. The sentence was calculated using Count 4 as the principal
count, for which he received the aggravated term of six years, doubled to 12 years
pursuant to section 667, subdivision (e)(1) for the prior strike and further enhanced by a
consecutive one-year term for the prior prison term. A consecutive term of 16 months
was imposed for the Count 3 conviction (criminal threats against Tia Marshall),
representing one-third of the middle term, doubled because of the prior strike. Additional
prison terms imposed for Counts 1, 2, and 5 were ordered to be served concurrently. A
notice of appeal was filed on September 27, 2013.
                                       DISCUSSION
Failure to Instruct on Simple Assault as a Lesser Included Offense
        Appellant contends that the trial court had a sua sponte duty to instruct on simple
assault as a lesser included offense of assault with a deadly weapon as charged in
Count 5. He construes the court’s failure to provide such an instruction as prejudicial
error. The claim fails because even if error occurred, it was harmless.
        Assault is “an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.” (§ 240.) A conviction for assault with a deadly
weapon requires proof of the crime of assault, plus proof that it was accomplished by the
use of a deadly weapon. (§ 245, subd. (a)(1).) It follows that section 240 is a lesser

                                              4.
included offense of section 245, subdivision (a)(1). (See People v. Lopez (1998) 19
Cal.4th 282, 288 [“if a crime cannot be committed without also necessarily committing a
lesser offense, the latter is a lesser included offense within the former.”].)
       Trial courts have a sua sponte duty to instruct on general principles of law relevant
to the issues raised by the evidence, which includes giving instructions on lesser included
offenses. (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) The de novo standard of
review is applied to questions concerning whether a trial court erred by failing to provide
a required instruction. (People v. Cook (2006) 39 Cal.4th 566, 596.) Where error is
shown, the reviewing court must determine if there is a reasonable probability that the
omission affected the jury’s verdict. (People v. Breverman (1998) 19 Cal.4th 142, 177-
178; People v. Watson (1956) 46 Cal.2d 818, 836.)
       The duty to instruct on simple assault as a lesser included offense of assault with a
deadly weapon exists unless, based on the evidence, the jury could only find the
defendant guilty of the greater offense or not guilty at all. (People v. Page (2004) 123
Cal.App.4th 1466, 1474.) Stated another way, “the obligation to instruct on a lesser
included offense does not arise when there is no evidence that the offense was less than
that charged.” (People v. Wyatt (2012) 55 Cal.4th 694, 702-703.) In this case, the trial
court found the evidence did not warrant an instruction on simple assault. Canady’s trial
counsel apparently agreed with this conclusion, since he was the person who requested
that an instruction on simple assault not be given.
       On appeal, Canady argues that a lesser included offense instruction was required
because a tire iron does not constitute a deadly weapon as a matter of law. His position is
stated as follows: “[W]hether or not Mr. Canady used the tire iron in a manner likely to
cause death or great bodily injury merited consideration by the jury. While there may
have been evidence sufficient to sustain a deadly weapon finding, a simple assault
conviction would also have been reasonable and supported by [the] evidence, and it was
error not to give that determination to the jury.”

                                              5.
       It is true that the nature of the weapon used in the offense was a factual issue for
the jury to decide. (People v. Fisher (1965) 234 Cal.App.2d 189, 193 [“The character of
the tire iron and its use, either as a dangerous or as a deadly weapon, is a question of
fact.”].) However, Canady fails to recognize that the issue was submitted to the jury as
part of the instructions it received regarding Count 5. The trial court explained that to
prove the defendant guilty of this crime, the prosecution needed to show: “1. The
defendant did an act with a deadly weapon other than a firearm that by its nature would
directly and probably result in the application of force to a person….” To assist the jury
in making its determination, the instruction stated: “As used in the statute defining the
offense of assault with a deadly weapon, a ‘deadly weapon’ is any object, instrument, or
weapon that is used in such a manner as to be capable of producing and likely to produce,
death or great bodily injury.” The term “great bodily injury” was defined elsewhere in
the instruction. Thus, the jury could not have reached the ultimate question of guilt or
innocence without first deciding whether, under the circumstances of the case, the tire
iron qualified as a deadly weapon.
       Error in failing to instruct the jury on a lesser included offense is harmless when
the factual question posed by the omitted instruction is necessarily resolved adversely to
the defendant through other properly given instructions. (People v. Chatman (2006)
38 Cal.4th 344, 392; People v. Elliot (2005) 37 Cal.4th 453, 475 (Elliot).) “‘“In such
cases the issue should not be deemed to have been removed from the jury’s consideration
since it has been resolved in another context, and there can be no prejudice to the
defendant since the evidence that would support a finding that only the lesser offense was
committed has been rejected by the jury.”’” (Elliot, supra, 37 Cal.4th at p. 475.)
Accordingly, any error in failing to instruct jurors on simple assault as a lesser included
offense of assault with a deadly weapon was harmless. The alleged error may also be
deemed harmless in light of Canady’s failure to show there is any likelihood that a



                                             6.
reasonable juror would have otherwise found the tire iron was not a deadly weapon
within the context of the trial evidence.
       In a related claim, Canady submits that failure to instruct on simple assault as a
lesser included offense under Count 5 requires reversal of his convictions for attempted
burglary and burglary under Counts 1 and 4, respectively. As best we understand the
argument, the jury supposedly believed Canady’s intention upon entering the home was
to commit misdemeanor assault rather than the target offenses alleged by the prosecution,
i.e., felonious criminal threats or assault with a deadly weapon. Appellant does not
explain why, if the jury did not believe he intended to commit one of the specified
felonies, it did not simply follow the instructions it was given and acquit him on those
charges. The theory is too attenuated and speculative to establish grounds for reversal.
For the reasons stated above, we conclude it is not reasonably probable that the outcome
of the case would have been different but for the trial court’s failure to instruct on simple
assault as a lesser included offense of assault with a deadly weapon.
Miscellaneous Claims of Instructional Error
       Canady presents three additional, interrelated claims of instructional error, all of
which are raised for the first time on appeal. We agree with the Attorney General that
these claims should be considered forfeited. Furthermore, none of the alleged errors were
prejudicial.
       The following principles provide the necessary context for appellant’s arguments.
First, burglary is defined by statute as the entry into a house or other specified structure
with intent to commit larceny or any felony. (§ 459.) Second, “[i]n a burglary
prosecution, complete and accurate jury instructions include the definition of each felony
the defendant is alleged to have intended to commit upon entry into the burglarized
structure.” (People v. Rathert (2000) 24 Cal.4th 200, 204.)
       The jury was instructed pursuant to CALCRIM No. 1700, which identified the
elements of burglary and the felonies Canady was alleged to have intended to commit.

                                              7.
The instruction read, in pertinent part: “A burglary was committed if the defendant
entered with the intent to commit Criminal Threats or Assault With a Deadly Weapon.”
It also stated: “To decide whether the defendant intended to commit Criminal Threats or
Assault With a Deadly Weapon, please refer to the separate instructions that I will give
you on those crimes.” Separate instructions for the target offenses were provided
pursuant to CALCRIM Nos. 875 (assault with a deadly weapon) and 1300 (criminal
threats).
       Canady argues that a clarifying instruction was required to ensure jurors
understood that alleging criminal threats as a target offense meant that he had to intend to
make new threats upon gaining entry to the home, as opposed to carrying out threats he
had already made prior to smashing the window and glass door with his tire iron. Next,
he claims the wording of a unanimity instruction given pursuant to CALCRIM No. 252
“reinforced the false impression that the intent Mr. Canady had when he actually made
criminal threats could be merged with the entry and/or attempted entry that occurred
moments later.”2 Lastly, Canady complains the CALCRIM No. 1700 instruction
erroneously stated that he was “charged in Counts One and Four with burglary,” when in
fact Count 1 alleged attempted burglary.
       Regarding the third contention, Canady argues he was prejudiced by the
possibility that jurors were misled to believe they could “assess the entire incident
collectively.” The argument circles back around to his initial hypothesis that the jury
misunderstood the manner in which the prosecution had alleged criminal threats as a


       2 Canady objects to the first paragraph of the instruction, which states: “The
crimes and other allegation[s] charged in Counts Five and Six require proof of the union,
or joint operation, of act and wrongful intent.” The instruction goes on to identify the
required mens rea for all counts and explains the concepts of general intent (Counts 5-6)
and specific intent (Counts 1-4). According to Canady, the first paragraph of the
instruction implied “that counts one through four did not require unanimity of action and
intent.”


                                             8.
possible target crime. In appellant’s words, “If the jury did not realize the need to
differentiate [his] intent at the time of the first attempted burglary from his intent at the
time of the second completed burglary, it is unlikely the jury differentiated his intent at
the time he uttered each criminal threat from his intent moments later, when he tried to
and/or did enter the home.”
        We now turn to the issue of forfeiture. “A party may not complain on appeal that
an instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or amplifying language.”
(People v. Lang (1989) 49 Cal.3d 991, 1024.) Canady did not object to, or seek
modification of, any of the instructions he now challenges. His silence resulted in
forfeiture of those claims. We thus review the alleged instructional errors only to
determine if his substantial rights were affected (§ 1259), i.e., whether the alleged errors
resulted in a miscarriage of justice. (People v. Anderson (2007) 152 Cal.App.4th 919,
927.)
        Assuming for the sake of argument that jurors misconstrued the instructions in the
manner alleged, we find no prejudice. Canady made two criminal threats prior to
attempting to gain entry to the victims’ home: “I’m going to kill you” and “I’m going to
beat your ass.” If, as Canady argues, the jury believed his intentions were to carry out
one or both of these threats, it was entirely permissible for the jury to return guilty
verdicts on Counts 1 and 4 given the prosecution’s alternative theory that the target
offense for both crimes was assault with a deadly weapon. We cannot conceive of a
realistic scenario in which the verdicts on these counts would have been different but for
the alleged errors.
        We likewise conclude that failure to accurately refer to the charge of attempted
burglary in the CALCRIM No. 1700 instruction did not affect appellant’s substantial
rights. Canady overlooks the rule that jurors are presumed to be intelligent persons
“‘“capable of understanding and correlating all jury instructions which are given.”’”

                                               9.
(People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) A reviewing court must also
consider the instructions as a whole in order to determine whether prejudicial error has
occurred. (People v. Owens (1994) 27 Cal.App.4th 1155, 1159; see People v. Lucas
(2014) 60 Cal.4th 153, 287 [“A single instruction is not viewed in isolation”].) Here, the
jury received other instructions that correctly identified the distinct nature of the crimes
alleged in Counts 1 and 4, including CALCRIM No. 460 (“Attempt Other Than
Attempted Murder”), which began by stating, “The defendant is charged in Count One
with attempted First Degree Residential Burglary.” The trial court also recited the
language in CALCRIM No. 3515, thus informing the jury that each count charged in the
case was a separate crime, and that it was required to consider each count separately and
return a separate verdict for each one. There is nothing in the record to suggest the jury
did not fully comprehend these instructions and/or appreciate the distinct nature of the
charges in Counts 1 and 4. In summary, Canady has not shown there was a miscarriage
of justice caused by incomplete or inaccurate jury instructions.
Sufficiency of the Evidence re: Separate Convictions for Attempted Burglary and
Burglary
       Canady submits that “the attempted burglary conviction in count one must be
dismissed for insufficient evidence because [he] could not lawfully be convicted of both
attempting and then completing the same residential burglary.” The crux of his argument
is that a single act of burglary occurred, beginning when he broke Ms. Marshall’s kitchen
window and ending upon his entry into the home after he shattered her sliding glass door.
We are not persuaded.
       “In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient

                                             10.
substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th
297, 331.) Evidence is substantial if it “‘“reasonably inspires confidence.”’” (People v.
Raley (1992) 2 Cal.4th 870, 891.)
       As discussed, burglary requires entry into a structure with the intent to commit a
felony therein. “The gravamen of a charge of burglary is the act of entry itself ....”
(People v. Failla (1966) 64 Cal.2d 560, 568.) Attempted burglary consists of two
elements: (1) the intent to commit burglary and (2) “a direct but ineffectual act done
toward its commission.” (§§ 21a, 459, 664.)
       From a strictly procedural standpoint, a person accused of attempting to commit a
crime may be convicted of such a charge even if the evidence at trial shows the crime
was completed. (§ 663; People v. Mejia (2012) 211 Cal.App.4th 586, 605.) Respondent
observes, and we agree, that the evidence could arguably be interpreted as showing a
burglary occurred the moment Canady broke through the kitchen window. (People v.
Valencia (2002) 28 Cal.4th 1, 11 [entry occurs within the meaning of burglary if “an
instrument employed by the intruder” penetrates the outer boundary of the building],
overruled on a different point in People v. Yarbrough (2012) 54 Cal.4th 889, 894; see
also, People v. Calderon (2007) 158 Cal.App.4th 137, 144-145 [kicking in the door of a
home constitutes burglary because the door itself becomes an instrument used to
penetrate the building].) The dispositive inquiry is whether Canady committed two
distinct offenses by attempting to enter the home through the window and the sliding
glass door, and succeeding in at least one of those attempts.
       Canady acknowledges that his position is weakened by the holding in People v.
Washington (1996) 50 Cal.App.4th 568 (Washington), which concludes that because the
crime of burglary is complete upon entry with the requisite intent, each unlawful entry
committed with the required mental state supports a separate conviction. (Id. at pp. 575-
579 [defendant found guilty of two counts of burglary based on unlawful entries into the
same apartment within a span of approximately 2 hours and 15 minutes].) He tries to

                                             11.
distinguish Washington on grounds that the present case involved only one successful
“entry” that occurred within moments of the conduct upon which the attempted burglary
conviction was based. The argument is unconvincing, as Washington merely illustrates
the general rule that “a defendant may be convicted of multiple crimes - even if the
crimes are part of the same impulse, intention or plan - as long as each conviction reflects
a completed criminal act.” (People v. Kirvin (2014) 231 Cal.App.4th 1507, 1518 [citing
numerous examples of the rule’s applicability to “crimes that do not monetize and
aggregate harm or damage.”].)
       Viewing the record in the light most favorable to the judgment, the evidence
permitted the jury to find the crime of attempted burglary was committed when Canady
tried to climb through the kitchen window and fell backwards to the ground. This “direct
but ineffectual act done towards” the commission of burglary satisfied the final element
of the offense. (§§ 21a, 459, 664.) Canady could have chosen to leave at that point, but
instead walked around to a different part of the house and engaged in a new course of
conduct that resulted in an unlawful entry into the residence. It is also possible that the
two incidents involved different criminal intentions (e.g. intent to commit felony assault
against Ms. Marshall and later the intent to commit felony assault against Mr. Booker).
As so construed, the evidence allowed for separate convictions under Counts 1 and 4.




                                             12.
                                 DISPOSITION
     The judgment is affirmed.



                                               _____________________
                                                           GOMES, J.
WE CONCUR:


 _____________________
HILL, P. J.


 _____________________
LEVY, J.




                                     13.
