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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. John Michael LINN, Defendant and Appellant.

No. B142261.

Decided: July 25, 2001

Laini Millar Melnick, Santa Barbara, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, Catherine T. Okawa, Deputy Attorney General, for Plaintiff and Respondent.

John Michael Linn appeals from the judgment entered after a jury convicted him of residential burglary.  (Pen.Code, § 459.) 1  The trial court sentenced him to four years state prison.   We affirm.

Facts and Procedural History

Shortly after midnight on September 10, 1999, appellant walked several miles to Mike and Kathy Szymanski's house.   He forcibly opened the back door, walked through an office, the kitchen, the dining room, and up a flight of stairs to the master bedroom.

Kathy Szymanski awoke and saw appellant “on all fours” next to the bed crawling towards a bathroom counter where prescription drugs, jewelry, and watches were in plain view.   Mrs. Szymanski recognized appellant.   He had worked for her husband, a general contractor, and was fired after a client reported a theft from a house where appellant had worked.

Mrs. Szymanski asked, “What are you doing here?”   Appellant answered, “I don't know.”   She said, “You better get out of here.”   Appellant stood up and walked out the bedroom.   He did not stagger or smell of alcohol.   Mrs. Szymanski turned on the hall light, followed appellant down the stairs, and opened the front door for him.   After the police were called, Mrs. Szymanski discovered that a screen door latch was broken and the back doors had been forced open.

Mike Szymanski reported that someone had broken into his locked station wagon and had taken a Milwaukee screw gun and a Makita cordless drill.   Also missing was a key ring with keys to the station wagon and a flatbed truck.

On September 21, 1999, the Santa Barbara Police questioned appellant and searched his apartment.   Szymanski's truck key was in the apartment.   Appellant denied entering Szymanski's house or station wagon.   Upon further questioning, he admitted going into Szymanski's house.   Appellant said that the station wagon was unlocked and that he opened the door and put “a tool or something on the ground.”   Appellant claimed that he took an excessive amount of drugs that night, i.e., Zoloft, Vicodin, Klonopin, Soma and Trazodone, and did not remember much.

Appellant testified that he went on a drug binge after he was fired.   He was depressed and walked over to Szymanski's house on September 10 to beg for his job back.   Appellant claimed that he was in a “Soma-coma.”  “It's like your brain is dead.”   Appellant's girlfriend, testified that he was a drug abuser, was taking too much medication, and was acting “strange” before the burglary.

Doctor Mark Kofler, a psychiatrist, testified that a person could build up a tolerance to the drugs that appellant was taking.   Significantly higher doses of the drugs can cause confusion, slurred speech, and impaired motor skills.   Based on appellant's medical history, Doctor Kofler opined that appellant could have walked into the darkened house without staggering or bumping into the walls.   On cross-examination, the doctor stated that such a person would be mentally impaired but would still know what he or she was doing.

Burglary Instruction

 Appellant argues that the jury was erroneously instructed that it could convict for residential burglary if he formed the intent to steal after entering the house.   The modified CALJIC 14.50 instruction stated in pertinent part:  “In burglary the intent to commit theft need not be in the person's mind at the time he entered an inhibited dwelling house if he then forms that intent and enters a room in that inhabited dwelling.  [¶] It does not matter whether the intent with which the entry was made was thereafter carried out.   In order to prove the crime, each of the following elements must be proved:  [¶] 1. A person entered an inhabited dwelling house or a room in an inhabited dwelling house;  and [¶] 2. At the time of the entry, that person had the specific intent to steal and take away someone else's property and intended to deprive the owner permanently of that property.”

 The People tendered this instruction based on People v. McCormack (1991) 234 Cal.App.3d 253, 285 Cal.Rptr. 504, which, in our view, is a correct statement of the law.   Section 459 provides that “[e]very person who enters any ․ room ․ with intent to commit grand or petit larceny ․ is guilty of burglary.” (Emphasis added.)   In McCormack, the defendant entered a home through an unlocked door and refused to leave.   When the police arrived, defendant was in the hallway carrying a sheet stuffed with jewelry.   Affirming the burglary conviction, the Court of Appeal held that a burglary is “committed when the intent to steal is formed after entry to a building but before entering a room therein from which the defendant intends to steal property.”   (Id., at p. 255, 285 Cal.Rptr. 504.)

Appellant argues that McCormack only applies where the defendant burglarizes a separately secured room.   He cites People v. Wilson (1989) 208 Cal.App.3d 611, 256 Cal.Rptr. 422, People v. O'Keefe (1990) 222 Cal.App.3d 517, 271 Cal.Rptr. 769, and People v. Elsey (2000) 81 Cal.App.4th 948, 97 Cal.Rptr.2d 269, where locked rooms in a boarding house, a college dormitory, and a school building were burglarized.   The cases stand for the principle that entries into multiple, secured rooms with the intent to steal may constitute more than one burglary.  (Id., at p. 956, 97 Cal.Rptr.2d 269.)  “[W]here a burglar enters several rooms in a single structure, each with felonious intent, and steals something from each, ordinarily he or she cannot be charged with multiple burglaries and punished separately for each room burgled unless each room constituted a separate, individual dwelling place within the meaning of sections 459 and 460.”  (People v. Thomas (1991) 235 Cal.App.3d 899, 906, fn. 2, 1 Cal.Rptr.2d 434.)

These cases are here inapposite.   Appellant was not charged with multiple burglaries and the People do not contend that he could have been.  (Id., at p. 906, fn. 2, 1 Cal.Rptr.2d 434.) Appellant was prosecuted on the theory that he committed a single burglary by entering either the Szymanski house or its master bedroom with the intent to steal.   That the items to be stolen were in the adjoining bathroom is of no consequence.  (People v. Ortega (1992) 11 Cal.App.4th 691, 694, 14 Cal.Rptr.2d 246.)

 Our California Supreme Court has rejected the theory that a defendant must necessarily form the intent to steal before entering a house as long as he or she forms such intent before entering a room of the house.   In People v. Young (1884) 65 Cal. 225, 226, 3 P. 813 (Young), the Supreme Court said that the trial court “did not err in refusing to charge that if defendant conceived the purpose of stealing after he entered the waiting-room [of a railway station building] they should find him not guilty, nor in charging that if the ticket office was a room or apartment, and defendant entered it with felonious intent, the jury should find him guilty.”  “One who enters, with burglarious intent, a room of a house enters the house with such intent.  [Citation.]”  (Id., at p. 226, 3 P. 813.) 2

 We are bound by the holding of Young by reason of the well-known “Auto Equity” rules.  “Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.   Otherwise, the doctrine of stare decisis makes no sense.   The decisions of ․ [the California Supreme Court] are binding upon and must be followed by all the state courts of California․ Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction.   It is not their function to attempt to overrule decisions of a higher court.  (Citations.)”  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   The California Supreme Court's statements of law “must be applied wherever the facts of a case are not fairly distinguishable from the facts of the case in which ․ [it has] declared the applicable principle of law.”  (People v. Triggs (1973) 8 Cal.3d 884, 891, 106 Cal.Rptr. 408, 506 P.2d 232.)

 To be sure, in the 1880s, the California Supreme Court wrote with a certain economy of expression when making its pronouncements.   Nevertheless, the statement of law found in Young applies here because the facts of the instant case are not “fairly distinguishable.”  (People v. Triggs, supra, 8 Cal.3d at p. 891, 106 Cal.Rptr. 408, 506 P.2d 232.) For purposes of stare decisis, the factual focus is not on whether the buildings or inner rooms are used for commercial or residential purposes.   The dispositive factual focus is on the timing of the intent to commit theft.   In our judgment, it matters not that the inner room in Young was a ticket office in a railway station building.   The Supreme Court referred to the outer building as a “house.”   (Young, supra 65 Cal. 225, 3 P. 813.)   If a ticket office in a railway station building is a “room” for purposes of burglary, so is a bedroom in a residence.   The principle of law which flows from Young, is that felonious entry into an inner room of a house with the intent to commit theft is sufficient for burglary even if there was no such intent upon entry of the house.   The Court of Appeal in People v. McCormack, supra, 234 Cal.App.3d 253, 285 Cal.Rptr. 504, properly recognized and honored this principle of law.  (See also People v. Deptula (1962) 58 Cal.2d 225, 23 Cal.Rptr. 366, 373 P.2d 430 [felonious entry of a building or its inner room, by one who has permission to enter, is sufficient to support a burglary for purposes of first degree murder and imposition of the death penalty].)

People v. McCormack, supra, 234 Cal.App.3d 253, 285 Cal.Rptr. 504, and Young, not only make common sense, they honor the separation of powers legislative definition of burglary which includes the entry of a “room.”   We do not sit as a super-legislature to redefine the elements of a burglary.   (See Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1698-1699, 8 Cal.Rptr.2d 614.)   We are loathe to construe a statute which has the effect of subtracting the word, “room” from section 459.  (E.g., People v. Buena Vista Mines (1996) 48 Cal.App.4th 1030, 1034, 56 Cal.Rptr.2d 21;  see also People v. Stickman (1867) 34 Cal. 242, 245.)

Unanimity Instruction

 Appellant argues that the trial court erred in failing to instruct the jury that it had to unanimously agree on when he formed the intent to steal.   The jury received a CALJIC 17.01 instruction stating that it had to agree that appellant “committed the same act.” 3 Appellant did not object or request an amplifying instruction, thereby waiving the alleged instructional error.  (People v. Bolin (1998) 18 Cal.4th 297, 329, 75 Cal.Rptr.2d 412, 956 P.2d 374;  People v. Rodrigues (1994) 8 Cal.4th 1060, 1092, 36 Cal.Rptr.2d 235, 885 P.2d 1.)

 The CALJIC 17.01 reference to “the same act,” when read in conjunction with the burglary instruction, required the jury to find a concurrence of act and intent.   The CALJIC 14.50 instruction stated that, in order to convict, it had to find at “the time of the entry, that [the] person had the specific intent to steal and take away someone else's property ․” Referring to CALJIC 14.50 and 17.01, the prosecutor argued, “Judge Brown also told you-and this is important-that in order for you to find the defendant guilty of residential burglary, you have to agree unanimously as to where that intent was formed.   You can't have, for example, six of you say, ‘Well, I think he formed the intent when he got upstairs,’ and six say, ‘No he definitely had the intent when he went in those doors.’ ”

 A CALJIC 17.01 jury unanimity instruction is not required where the prosecutor has designated the specific act on which it relies or “the defendant offers essentially the same defense to each of the acts ․” (People v. Stankewitz (1990) 51 Cal.3d 72, 100, 270 Cal.Rptr. 817, 793 P.2d 23;  People v. Salvato (1991) 234 Cal.App.3d 872, 879, 285 Cal.Rptr. 837.)   Appellant defended on the theory that he was in a “Soma-coma” and too intoxicated to form the intent to steal at all times on September 10, 1999.   Any failure to give a more detailed unanimity instruction was harmless beyond a reasonable doubt.   (People v. Stankewitz, supra, 51 Cal.3d at p. 100, 270 Cal.Rptr. 817, 793 P.2d 23;  People v. Deletto (1983) 147 Cal.App.3d 458, 470-471, 195 Cal.Rptr. 233.)

Expert Testimony

 The prosecution, over a general objection, elicited opinion testimony from Detective Marylinda Arroyo that appellant was inside the house to commit a theft.4  Appellant argues that the expert testimony was improperly received because the subject matter of the testimony was not sufficiently beyond the common experience of the jurors to assist them as triers of fact.   (Evid.Code, § 801, subd. (a).)  Appellant, however, did not preserve the issue by specifically objecting on that ground.  (Evid.Code, § 353, subd. (a);  e.g., People v. Valdez (1997) 58 Cal.App.4th 494, 505, 68 Cal.Rptr.2d 135.)   Instead, he made a blanket general objection.

 Moreover, Detective Arroyo did not express an opinion as to appellant's guilt or innocence.   Appellant was free to challenge Detective Arroyo's testimony.   On cross-examination, Detective Arroyo admitted that she did not know what was going on in appellant's mind.   The jury was instructed:  “An opinion is only as good as the facts and reasons on which it is based ․ [¶] You are not bound by an opinion.   Give each opinion the weight you find it deserves.   You may disregard any opinion if you find it to be unreasonable.”  (CALJIC 2.80.)

Appellant has failed to show that the admission of Detective Arroyo's opinion resulted in a miscarriage of justice.  (Cal. Const., art. VI, § 13;  People v. Campos (1995) 32 Cal.App.4th 304, 309, 38 Cal.Rptr.2d 113;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)   The evidence of appellant's guilt was strong.   Appellant admitted entering the residence but claimed he was in a “Soma-coma.”   The jury discredited his testimony.   Doctor Kofler, the defense medical expert, conceded that it would be difficult to believe that a person could take the drugs allegedly consumed by appellant, walk several miles to the victim's house, force open the back door, ascend a flight of stairs, and crawl across the bedroom floor without knowing what he or she was doing.

 Intent to steal was established by the method of entry.   (E.g., People v. Earl (1973) 29 Cal.App.3d 894, 896-897, 105 Cal.Rptr. 831.)   Appellant removed the latch on a screen door, forced open the office doors, let the dogs out, and walked up the stairs without bumping into the walls or waking the occupants.   He was caught crawling across the bedroom towards the jewelry and drugs.   Appellant later claimed that he was in the house to beg for his job back.   Appellant's flight and his false and inconsistent statements to the police were strong evidence of guilt.   (People v. Kittrelle (1951) 102 Cal.App.2d 149, 156; , 227 P.2d 38 2 Witkin, Cal.Criminal Law, Crimes Against Property (3d ed.2000) § 134, pp. 166-167;  Fricke, Cal.Criminal Law, Burglary (10th ed.1970), pp. 328-329.)


Appellant contends that the trial court erred by not instructing on trespass as a lesser offense.   Citing People v. Lohbauer (1981) 29 Cal.3d 364, 173 Cal.Rptr. 453, 627 P.2d 183 and the CALJIC 16.350 use notes, the trial court ruled that trespass is not a lesser included offense of burglary.   Defense counsel stated:  “I looked at [the] cases as well, and after seeing them sufficient, I agree with your Honor.”

In People v. Birks (1998) 19 Cal.4th 108, 77 Cal.Rptr.2d 848, 960 P.2d 1073, the defendant was charged with burglary, admitted that he was inside the victim's home, but denied that he intended to commit a theft.   The Supreme Court held that the trial court did not err in denying a defense request to instruct on trespass as a lesser related offense.  (Id., at p. 137, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)   The court concluded that a trespass instruction, as a lesser related offense to burglary, may not be given absent a stipulation by the parties.  (Id., at p. 136, fn. 19, 77 Cal.Rptr.2d 848, 960 P.2d 1073;  see People v. Steele (2000) 83 Cal.App.4th 212, 217, 99 Cal.Rptr.2d 458.)

 The same principle applies here.   Trespass was not a lesser, necessarily included offense to the charge of burglary.  (People v. Birks, supra, 19 Cal.4th at p. 118, fn. 8, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) Appellant also abandoned his request for a trespass instruction and argued that he was too intoxicated to commit a residential burglary.   Had the trial court instructed on trespass, it is not reasonably probable that appellant would have received a more favorable verdict.  (People v. Breverman (1998) 19 Cal.4th 142, 177-178, 77 Cal.Rptr.2d 870, 960 P.2d 1094.)

 Appellant argues that the constitutional right to present a defense includes the right to instruct on lesser related offenses such as trespass.   Our Supreme Court in People v. Birks, supra, 19 Cal.4th at page 113, 77 Cal.Rptr.2d 848, 960 P.2d 1073 rejected a similar argument, holding that a defendant has no due process “power to insist, over the prosecution's objection, that an uncharged, nonincluded offense be placed before the jury ․”

CALJIC 17.41.1

 The trial court gave CALJIC 17.41.1 which states:  “The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions.   Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation.”

Appellant contends that the instruction infringes on the power of jury nullification, invades the secrecy of jury deliberations, chills open discussion among jurors, and violates his right to an impartial jury.   We reject the argument.   CALJIC 17.41.1 merely states that jurors should disclose a juror's refusal to deliberate or expressed intention to disregard the law.   It is not intrusive or coercive and does not purport to limit juror deliberations.  (Cf. In re Christiano S. (1997) 58 Cal.App.4th 1435, 1434-1435, fn. 2, 68 Cal.Rptr.2d 631;  United States v. Dougherty (D.C.Cir.1972) 473 F.2d 1113, 1137-1138.)

 The jury was properly instructed that it had a duty to follow the law and to decide the case on the evidence presented.  (CALJIC 1.00;  People v. Williams (2001) 25 Cal.4th 441, 443, 106 Cal.Rptr.2d 295, 21 P.3d 1209;  People v. Baca (1996) 48 Cal.App.4th 1703, 1706-1707, 56 Cal.Rptr.2d 445.)   Although jurors have “the naked power” to acquit irrespective of the evidence and the law, they have no corresponding right to disregard the trial court's instructions.  (People v. Cline (1998) 60 Cal.App.4th 1327, 1335, 71 Cal.Rptr.2d 41.)   Nor are trial courts required to instruct jurors that they possess the power of nullification.  (Ibid.;  People v. Baca, supra, 48 Cal.App.4th at pp. 1707-1708, 56 Cal.Rptr.2d 445.)

Appellant speculates that CALJIC 17.41.1 may have lead some jurors to refrain from taking a minority view and empowered majority jurors to impose their will on “hold-out” jurors.   There is nothing in the record to indicate that those problems occurred here.   The other instructions (i.e., CALJIC 17.40) advised the jurors to “decide the case yourself,” and to not “decide any question in a particular way because a majority of the jurors, or any of them, favor that decision.”   There is no merit to the argument that CALJIC 17.41.1 coerced the jurors or restricted the deliberations.5

 Assuming our Supreme Court decides that it is error to give CALJIC 17.41.1, reversal in a particular case would be required only upon a showing of prejudice.  (People v. Molina (2000) 82 Cal.App.4th 1329, 1335-1336, 98 Cal.Rptr.2d 869.)   Appellant has made no showing of prejudice.   There were no holdout jurors, no jury deadlock, and no reports that a juror was refusing to deliberate or follow the law.   Nor is there anything in the record to indicate that the problems attributable to CALJIC 17.41.1 affected the jury deliberations.  (Ibid.)

The judgment is affirmed.


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

2.   In People v. Sparks (2001) 88 Cal.App.4th 1054, 106 Cal.Rptr.2d 409, a divided Court of Appeal held to the contrary.   The majority recognized Young, but determined that it was factually distinguishable and not controlling.  (Id., at. pp. 1065-1066, 106 Cal.Rptr.2d 409.)   The Attorney General has petitioned the California Supreme Court for review.

3.   The CALJIC 17.01 instruction stated:  “The defendant is accused of having committed the crime of residential burglary in Count One. The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction on Count One may be based.   Defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts.   However, in order to return a verdict of guilty to Count One, all jurors must agree that he committed the same act.   It is not necessary that the particular act agreed upon be stated in your verdict.”

4.   Detective Arroyo was asked the following:“Based upon what you know of where the defendant was, his position in the bedroom at 2:00 a.m. on all fours in the direction facing the master bedroom where there were drugs and jewelry, what is your opinion-“MR. HANLEY [defense counsel]:  Objection.“MR. PERLIN [prosecutor]:-as-let me just finish the question.“Q. BY MR. PERLIN:  What is your opinion as to what the defendant's intent was when he was inside the Szymanski residence?“MR. HANLEY:  Objection.“THE COURT:  Overruled.   You may answer.“THE WITNESS:  My opinion was that he was going to commit theft.“Q. BY MR. PERLIN:  And why do you say that?“A. Totality of the circumstances:  2:00 in the morning;  crawling in the direction of where valuables are kept;  trying to obviously elude detection by Mrs. Szymanski by crawling.”

5.   The validity of CALJIC 17.41.1 is pending before the Supreme Court.  (People v. Engelman (2000) 77 Cal.App.4th 1297, 92 Cal.Rptr.2d 416, review granted April 26, 2000 (S086462);  People v. Taylor (2000) 80 Cal.App.4th 804, 95 Cal.Rptr.2d 357, review granted August 23, 2000 (S088909);  People v. Morgan (2001) 85 Cal.App.4th 34, 101 Cal.Rptr.2d 829, review granted March 14, 2001 (SO94101).)


GILBERT, P.J., and PERREN, J., concur.

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