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Court of Appeal, First District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gary DOUGLAS, Defendant and Appellant.

No. A046970.

Decided: April 30, 1990

R. Lee Hagelshaw, under appointment by the Court of Appeal, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Christopher J. Wei and Frances Marie Dogan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

On appeal from a judgment sentencing him to five years' imprisonment, appellant Gary Douglas contends that the court erred in refusing to sever trial of two counts, that the prosecutor engaged in prejudicial misconduct, and that the court committed error in its instructions on aiding and abetting and on the nature of the structure required for burglary.   We affirm.

Appellant was charged with the following offenses:  count I, second degree burglary of the construction office of Scott Company, located at 840 Post Street, San Francisco (Pen.Code, § 459);1 count II, second degree burglary of the construction office of Meiswinkle Plastering Company, located at 840 Post Street, San Francisco (§ 459);  count III, attempted auto theft of a pickup truck belonging to S.J. Amoroso Construction Company (§ 664;  Veh.Code, § 10851);  and count IV, second degree burglary of the premises located at 260 Green Street, San Francisco (§ 459).   It was alleged that the count IV offense was committed while appellant was released from custody in a felony offense, on bail or on his own recognizance.  (§ 12022.1.) 2

Appellant admitted the section 12022.1 allegation, and a jury found him guilty of the first four counts.

On August 17, 1989, the court sentenced appellant to state prison for a total term of five years:  a three-year upper term on count I, plus two consecutive years for the section 12022.1 enhancement.   Sentences on counts II and IV (middle terms of two years) and count III (lower term of one year) were ordered to be served concurrently with the sentence in count I.

I. The Facts

840 Post Street.   At about 10 p.m. on April 2, 1989, Patrol Special Officer Serge White was providing patrol services for S.J. Amoroso Construction Company at its construction project when he heard noises coming from the garage.   He looked into the garage area and saw a man standing near the company's white pickup truck, loading items into the bed.   The man ran when he noticed Officer White.   White started to intercept the man when he saw another person, appellant, behind the truck.   Appellant looked at White, turned, and started running.   White, who was armed, ordered appellant to stop, and he did.   White placed appellant in his vehicle, radioed for backup, and called the construction company about the burglary.

Officers Dedet and Solia responded to the call.   Appellant, wearing a white baseball cap with the words “Nakida Power Tools” on it, was taken into custody.

The construction shacks of Meiswinkel Plastering Company and of Scott Company had been broken into, and various items had been taken from each one.   A cap with the words “Nakida Power Tools” was taken from the Scott Company.   Many, but not all, of the missing items were found in the bed of the pickup truck.   The truck doors were open, and the ignition lock had been punched.

260 Green Street.   At about 1:30 a.m. on April 12, 1989, Shawn MacArthur, who lived at 285 Green Street, across the street from the house under renovation at 260 Green Street, heard a loud car;  he looked out his window and saw two men in a white BMW.   The two parked the car, went to 260 Green Street, and returned from the building carrying equipment.   One man pulled a two-wheeled cart like a dolly, which appeared to contain heavy equipment, to the car.   The second man, appellant, carried a large white tool box, which he put down so he could help his companion load the equipment into the trunk.   MacArthur called the police, who arrived about three minutes later and arrested appellant and his partner.

Construction people from the job site identified various items found in the BMW as belonging to them and missing from the work site.   They also testified about the condition of the walls and entries into the house, which we discuss further below.



V. Definition of Burglary

 Appellant was charged with three counts of second degree burglary.   At the time of the offense, section 459 defined burglary as entry with the requisite intent into “any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, ․ railroad car, locked or sealed cargo container, ․ trailer coach, ․ house car, ․ inhabited camper, ․ vehicle, ․ aircraft, ․ or mine․”  Appellant requested that the court instruct the jury that for purposes of the burglary charges, “the structure entered must have four walls and a roof.”   The court refused the instruction.   Instead, the court instructed the jury on the definition of burglary in the language of CALJIC No. 14.50:  “Any person who enters any structure of the type shown by the evidence in this case with the specific intent to take, carry away the personal property of another․”  (Emphasis added.) 3

Appellant claims that by giving this instruction, the court instructed the jury to find that the Green Street construction site was a “house” or “building” within the meaning of section 459, and that this was tantamount to a directed verdict as to the structure element of second degree burglary.   Appellant's claim that error occurred is predicated upon evidence which he believes tended to show that the Green Street structure could not be the subject of burglary because of the state of the renovation process.

Joan Crowley, the general contractor in the renovation of 260 Green Street, testified that the building is a three-story single family dwelling.   She said on direct examination when shown a photograph of the house that in April 1989 the house did not yet have plywood on the outside.   She explained that the renovation process included removing shingles from the siding on the front and side of the house, then removing the siding, and then immediately placing plywood over the exposed frame for earthquake protection.   She thought that at the time of the burglary plywood had not yet been placed on the south wall of the house, but she was not sure.   Siding and shingles remained on the west side of the house and on the front of the house.   Windows were in place, but doors were not.   The house always had a roof.

Phillip Delevett was the project manager for Ms. Crowley.   He explained that at the time in question one would enter the building by walking up the driveway through a small gate to the left of the garage, then up old concrete steps and through a new doorway in the west wall.   There was no door in the doorway, and there was no way to secure the building.   The west wall of the garage formed the lower part of the west wall of the house.   At the time in question the wall of the garage was in place, and the upper part of the wall above it was framed and without plywood or other cover.   About 20 percent of the first floor west wall was without plywood.

We agree with appellant that error occurred, but we are convinced, as urged by the Attorney General, that the error was harmless.

The trial court erred when it gave CALJIC No. 14.50 as quoted above, commenting on the character of the structure and thereby effectively removing from the jury the decision of whether the Green Street house was a structure for purposes of burglary.4  As will appear, the court was unquestionably correct in its characterization of the building, but it is for the jury, not the judge, to make factual determinations, particularly of an element of the offense.   This rule has its origins in the proposition that “no matter how conclusive the evidence, it is federal constitutional error for a trial court to direct a verdict of guilt (Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101 [92 L.Ed.2d 460] ) or to comment on or offer an opinion concerning the ultimate issue of guilt or innocence (People v. Rodriguez (1986) 42 Cal.3d 730, 765 [230 Cal.Rptr. 667, 726 P.2d 113];  People v. Figueroa (1986) 41 Cal.3d 714, 724–741 [224 Cal.Rptr. 719, 715 P.2d 680];  People v. Lawson (1987) 189 Cal.App.3d 741–748 [sic ] [234 Cal.Rptr. 557] )․

“When a verdict of guilt is directed, the error is automatically reversible.   [Citation.]  When the error consists of commenting on the issue of guilt or innocence, it may be harmless if beyond a reasonable doubt the comments could not have affected the verdict.  [Citations.]”  (People v. Hutchins (1988) 199 Cal.App.3d 1219, 1223, 245 Cal.Rptr. 541 (conc. opn. of Benke, J.), fn. omitted.)   Thus, while a “directed verdict” is a fundamental error which requires reversal, “improper comment potentially affecting a jury's consideration of an element is not a directed verdict and is not so fundamental an error that per se reversal is justified.”  (Id., at p. 1225, 245 Cal.Rptr. 541 (conc. opn. of Benke, J.);   see generally, 6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Reversible Error, § 3281, pp. 4048–4052.)   The latter is what occurred here.

 The error here was harmless because of the great breadth established by California statutory and decisional law on the question of what structures can be the subject of burglary.   Justice Lillie, speaking for the court in People v. Brooks (1982) 133 Cal.App.3d 200, 183 Cal.Rptr. 773, collected a number of cases and authorities to illustrate the extent to which our law has been expanded.   The discussion in Brooks may be fairly summarized as follows.   California's first burglary statute “abolished ‘all the nice distinctions of the common law’ [citation]․  ‘The language of Penal Code section 459 could hardly be more comprehensive.   A comparison of the burglary statute as originally enacted with the present one shows that “The amendments have gradually drawn tight the loophole through which a defendant might hope to escape by showing that the structure entered was not within the statute.”   [Citation.]’  [Citation.]

“The language of the statute is broad and comprehensive [citation], and in determining whether a structure comes within the ambit of the statute our courts have been guided by the legislative intent to extend protection.   [Citation.]․  [¶] To be a building ‘the structure need only be one having four sides and a roof.’  [citations];  and no legislative intent can be discerned to limit the word ‘building’ to anything less than its broadest meaning.  [Citation.]  Thus, giving effect to the legislative purpose ․ [citation], our courts further enlarged the class to include a variety of structures [from retail stores to phone booths, unattached garages, and popcorn stands on wheels] [citations].”  (People v. Brooks, supra, 133 Cal.App.3d at pp. 203–205, 183 Cal.Rptr. 773;  Comment, Development of the Law of Burglary in California (1951) 25 So.Cal.L.Rev. 75.)

Appellant took the position at trial that because 20 percent of one of the walls was only framed, the Green Street structure did not have “four walls and a roof.”   The trial court correctly rejected this position as a matter of law.  “What comprises four walls and a roof has been broadly construed to embrace such composition as chicken wire [citations] ․;  glass [citation] ․;  and an open door as a fourth wall [of a garage.]  (People v. Picaroni (1955) 131 Cal.App.2d 612, 619 [281 P.2d 45].)”  (People v. Brooks, supra, 133 Cal.App.3d at p. 205, 183 Cal.Rptr. 773.)   In Picaroni, a garage with an entire side consisting of an open door was held the subject of burglary.   It follows, a fortiori, that the Green Street property, although a portion of the wall was only in a framed state, was also the subject of burglary as a matter of law.

This conclusion is compelled by the plentiful California authority which we have quoted and summarized above.   It finds further support in an additional definition of “building” which has a different focus from “four walls and a roof” but which has gained general acceptance in the appellate decisions.   A building is defined as a structure designed for and having the capacity to contain people or animals, or to shelter property.  (People v. Alexander (1966) 244 Cal.App.2d 301, 305, 53 Cal.Rptr. 65;  accord People v. Brooks, supra, 133 Cal.App.3d at pp. 206–207, 183 Cal.Rptr. 773.)

The language of section 459 is “ ‘․ broad enough to include buildings of any kind and used for any purpose.’  [Citation.]”  (People v. Brooks, supra, 133 Cal.App.3d at p. 207, 183 Cal.Rptr. 773.)   It is certainly broad enough to include a home undergoing renovation.  (See State v. Bronson (Minn.1977) 259 N.W.2d 465.) 5  We conclude that the building was the subject of burglary as a matter of law, and that therefore the trial court's error in removing the question from the jury was harmless beyond a reasonable doubt.   (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705;  see People v. Odle (1988) 45 Cal.3d 386, 413–415, 247 Cal.Rptr. 137, 754 P.2d 184.)

The judgment is affirmed.


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

2.   A codefendant, Michael Warren, was also charged with these offenses.   In addition, both men were charged with a fifth count, receiving stolen property, but they were acquitted of that offense.

FOOTNOTE.   See footnote *, ante.

3.   All CALJIC instructions referred to are from the fifth edition (1988).

4.   We have written a letter to the Committee on CALJIC calling this problem to their attention and suggesting that in CALJIC No. 14.50, in the second paragraph, the first bracketed phrase (“any structure of the type shown by the evidence in this case”) should either be removed or highlighted with a clear and appropriate use note indicating that the phrase should be used only if the defense has expressly stipulated to it on the record.

5.   While we have found no California case directly on point, the cited Minnesota decision is instructive.   In that case a community arena was under reconstruction, and one of the walls had been torn out.   Defendant and his crime partner entered the structure at night through the open wall.   The Supreme Court of Minnesota quoted the definition of building which includes a structure “ ‘ ․ affording shelter for human beings ․,’ ” and held that the arena with a missing wall retained its character as a building because it sheltered the people working inside of it.  (State v. Bronson, supra, 259 N.W.2d at pp. 465–466.)

BARRY–DEAL, Acting Presiding Justice.