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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Wendy Lynn CARCERANO, Defendant and Appellant.

No. B040585.

Decided: October 08, 1991

Catherine Fancher Campbell, San Francisco, under appointment by the Court of Appeal, California Appellate Project, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., Robert Carl Schneider, Asst. Supervising Deputy Atty. Gen., and David A. Warshaw, Deputy Atty. Gen., for plaintiff and respondent.

 A jury convicted appellant of residential burglary 1 (Pen.Code,2 §§ 459, 460, & 667, subd. (a)) and the trial court found all four felony conviction allegations true.   Appellant was sentenced to state prison for a total term of 19 years.   Appellant claims trial court error:  (1) in refusing to instruct on the lesser-related offense of trespass (2) in restricting cross-examination of the victim and (3) in finding the felony conviction allegations true, appellant not having waived jury and the jury having been discharged without making a finding.  (People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277.)   We conclude:  (1) it was error, but harmless, to refuse lesser-related trespass instructions (2) there was no cross-examination error and (3) the court erred in prematurely discharging the jury and thereafter finding the felony conviction allegations true.   We reverse the true findings regarding the felony conviction allegations, modify the judgment accordingly, and as modified affirm the judgment.


There being no insufficiency of evidence claim, we synopsize the evidence.   Our perspective favors the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)

Michael Bustos and his 16–year–old daughter Juliet lived together at their house in Harbor City.   On April 15, 1988, before leaving, Mr. Bustos locked his front and back doors and secured his residence.   No one had permission to enter.   At 7:10 a.m. Mr. Bustos and Juliet left.   He drove Juliet to school and then went to work.   They returned together, accompanied by a friend of Juliet's, at approximately 5:20 p.m.

When Juliet attempted to insert her key in the front door lock, the door swung partly open.   The inside chain had been secured.   Juliet reached in, undid the chain, and opened the door.   In the living room, sitting on Mr. Bustos' Lazy Boy chair, eating one of his granola bars, sat appellant.

The house had been ransacked:  drawers emptied, clothes dumped on the floor, food trailing from the refrigerator, and large plastic grocery bags stuffed with Bustos' personal property had been placed by both the front and back doors.

While Juliet went to call the police, Mr. Bustos talked to appellant.   She appeared “calm,” although “she chewed nervously on the granola bar,” and promptly answered his questions.   When asked how she entered, she said the door was open.   She explained that she had arrived with a friend named Javier who had asked her to help him move his belongings from his uncle's house.   She was waiting for Javier who she said would soon return.

After about 15 minutes, Mr. Bustos asked appellant to stand up and accompanied her outside.   He asked if she could see Javier.   She said that a car half a block away looked like his.   Appellant walked toward the car, paused there for about 30 seconds, and continued walking away.

Soon thereafter, the police arrived, obtained a description of appellant, and arrested her at a phone booth about three blocks from the Bustos' residence.

The police returned to the Bustos house and continued their investigation.   Two windows had been broken and a screen removed.   Entry had been made through the broken front window.

At the police station appellant was booked and searched.   Removed from the pockets of her trenchcoat were a stopwatch, silverplated spoons, two silver chains, a gold necklace, and cosmetics—all identified by Juliet as property taken from her bedroom.

Mr. Bustos testified he had no nephew named Javier.


1. Appellant contends the court erred in refusing to instruct on the lesser-related offense of trespass.

“In People v. Geiger (1984) 35 Cal.3d 510, 531–532 [199 Cal.Rptr. 45, 674 P.2d 1303] the Supreme Court set forth three prerequisites to instructions on related, but not necessarily included, offenses.   First, there must be ‘some basis, other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged.’   Second, ‘the offense must be one closely related to that charged and shown by the evidence.’   Third, ‘the instructions must be justified by the defendant's reliance on a theory of defense that would be consistent with a conviction for the related offense.   Thus, the instruction need not be given if the defense theory and evidence reflect a complete denial of culpability as when the defense is alibi, or the only issue is identity, unless the defendant argues that the evidence at most shows guilt only of the related offense.’   Also, ‘ “[t]he court should instruct the jury on every theory of the case, but only to the extent each is supported by substantial evidence.” ’ ”  (People v. White (1986) 185 Cal.App.3d 822, 829, 231 Cal.Rptr. 569.)

 Appellant requested a trespass instruction,3 a lesser-related offense to burglary.   Appellant relied upon People v. Geiger which she identified by name, year, and citation.

The trial court denied the request based upon two cases (People v. Lopez (1967) 249 Cal.App.2d 93, 102, 57 Cal.Rptr. 441 and People v. Pendleton (1979) 25 Cal.3d 371, 381–382, 158 Cal.Rptr. 343, 599 P.2d 649) holding that trespass is not a lesser-included offense of burglary, a proposition irrelevant to appellant's request.

We are satisfied, based upon Geiger, appellant was entitled to a trespass instruction.   In Geiger the front window of a closed restaurant had been smashed and circumstantial evidence indicated defendant had smashed it.   Although defendant did not testify, and there was no evidence regarding his intent in smashing the window,4 Geiger held that requested vandalism instructions were required because the jury may have believed defendant smashed the window in anger rather than with an intent to steal.

As in Geiger, the issue was intent.   If appellant entered without an intent to steal she committed trespass, not burglary.

The following defense evidence indicating an absence of intent to steal, constituted “some evidence” (People v. Geiger, supra, 35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303) justifying trespass instructions:  on April 14, 1988, the day before the burglary, appellant picked up 50 tablets of prescribed Valium, went home, and began taking them;  on April 15, 1988, according to her methadone counsellor, she appeared under the influence of a drug when he saw her between 11:15 and 11:45 a.m.;   on April 15, 1988, appellant consumed five tablets that, according to her methadone counsellor, appeared to be Valium;  high doses of Valium affect memory;  appellant's last memory was taking Valium on April 14, 1988;  her next memory was waking up in jail on April 16, 1988;  appellant had no memory of any event, morning or afternoon, on April 15, 1988.

“Even if there were any doubt whether the evidence warranted the instruction, ‘[d]oubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.’ ”  (People v. White, supra, 185 Cal.App.3d at p. 830, 231 Cal.Rptr. 569.)

 Having concluded that there was Geiger error by the trial court in refusing to give the requested instructions regarding trespass the next question is whether such error was prejudicial and would therefore require a reversal.   In the very recent decision of the California Supreme Court in People v. Turner (1990) 50 Cal.3d 668, 268 Cal.Rptr. 706, 789 P.2d 887, the high court held that although it was error for the trial court not to instruct the jury sua sponte on the lesser offense of theft so they would have an alternative to robbery, such error was not prejudicial and therefore not reversible error.   That was the holding of the high court even though Turner was a death penalty case in which the prosecution's theory was felony murder and the special circumstance alleged was that the defendant committed the murder while he was engaged in the commission of a robbery.  (Id., at p. 679, 268 Cal.Rptr. 706, 789 P.2d 887.)   Therefore a finding by the jury of guilt as to theft rather than robbery would have knocked out the true finding on the special circumstance alleged.   That would have prevented the possibility of the jury and the court imposing a judgment of death.

In concluding that the instructional error was not prejudicial, the Turner court stated:  “We have long held that erroneous failure to instruct on a lesser included offense is not prejudicial if ‘it is possible to determine that ․ the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions․' ”  See People v. Santos (1990) 222 Cal.App.3d 723, 740, 271 Cal.Rptr. 811.)

We conclude that the factual question of an intent to steal at the time of residential entry was necessarily resolved adversely to appellant and therefore the instructional error was harmless.

We only further note that the evidence appellant committed burglary was overwhelming and the evidence she did not was underwhelming.   E.g., appellant admitted residential burglary convictions in 1975, 1979, and 1984 and a felony petty theft with a prior felony conviction in 1981;  appellant falsely told the victim the front door had been open;  appellant gave the victim a false name;  appellant had silver and gold jewelry belonging to the victim's daughter secreted in her pockets;  the only basis for the existence of Javier was appellant's extra-judicial statement to the victim;  both the victim and the arresting officer unequivocally testified appellant was not under the influence;  and there was no testimony that Valium precludes an intent to steal.

The jury deliberated scarcely an hour.

2. Appellant contends the trial court erred in unduly restricting the scope of defense cross-examination.

 This contention is based on a single question asked of the victim by appellant's trial counsel, as follows:

“Q. Was there anything unusual about the granola bar?   For instance, was it dribbling on her hand or anything like that?”

Before the witness answered, the court asked counsel to approach the bench.   This colloquy then ensued.

“THE COURT:  May I ask what possible difference does it make in this case whether she was dribbling or what's dribbling?

“[DEFENSE COUNSEL]:  Because—well, I think I would inform the court of it, however I would—

“THE COURT:  Let me ask a question.   Is it disputed that the woman was in the apartment in the chair?


“THE COURT:  What's the relevance of the question?

“[DEFENSE COUNSEL]:  It goes to her mental state.

“THE COURT:  What does that mean?   You don't have a defense asserted of insanity or anything like that.

“[DEFENSE COUNSEL]:  That's true, but burglary charges is [sic] specific intent charge.   It's relevant at this point if the court wishes me to go into my defense, but I would rather do it ex parte.

“THE COURT:  I don't know how it's relevant.

“[DEFENSE COUNSEL]:  It goes to her mental state as to what she was aware of at the time of the conversation with this gentleman.

“THE COURT:  Well, there's no objection before the court so.

“[DEFENSE COUNSEL]:  I know it seems like a ridiculous question.   However I don't feel it's a ridiculous question in light of my defense.

“THE COURT:  Well, I don't know what the a [sic] defense is.”

As the quoted colloquy reveals, the relevance of the question was not apparent to the trial court.   That is not surprising.   Counsel had earlier asked the victim many questions about appellant's condition and none of the victim's answers suggested any impairment.   Further, the literal point of the subject question was not appellant's condition but that of the granola bar.  (“Q. Was there anything unusual about the granola bar?   For instance, was it dribbling on her hand or anything like that?”   Emphasis added.)

When the court told counsel “I don't know how it's relevant” defense counsel's reply only added to the obfuscation:  “It goes to her mental state as to what she was aware of at the time of the conversation with this gentleman.”

Defense counsel's concession that “it seems like a ridiculous question” and his intimation that its relevance could only be appreciated after disclosure of the defense which he'd “rather do [ ] ex parte,” could only confirm the court's initial impression.

In these muddled circumstances, largely attributable to defense counsel, the court did not err in sustaining its own objection to the question.

Except for this one “dribbling granola bar” question, defense counsel was not restricted in his inquiry about appellant's condition.   He asked many questions of both the victim and the arresting officer concerning appellant's speech, demeanor, walk, responsiveness, attire, physical appearance, and sobriety.

There was no error.

3. Appellant contends she was denied her right to a jury trial on the alleged prior felony convictions.

Appellant was charged with having suffered five felony convictions, three for residential burglary (§§ 667, subd. (a), 667.5, subd. (b)), one for injuring telephone lines (§§ 591, 667.5, subd. (b)), and one for petty theft with a prior felony (§§ 666, 667.5, subd. (b)).  She denied the allegations, did not waive her right to a jury trial (§ 1025;  People v. Ford (1964) 60 Cal.2d 772, 794, 36 Cal.Rptr. 620, 388 P.2d 892;  People v. Luick (1972) 24 Cal.App.3d 555, 559, 101 Cal.Rptr. 252), and did not request a bifurcated trial (People v. Bracamonte (1981) 119 Cal.App.3d 644, 174 Cal.Rptr. 191).   On its own initiative, however, the trial court told counsel “I will read the principal charge in count I and that's it.   And we will seat the jury and commence the voir dire.”

A jury was selected and sworn.   It tried the principal charge, finding appellant guilty.   After their verdict was read and they were polled, the trial court discharged them.   The jurors having left the courtroom, the trial court stated:  “Regarding the priors, we'll hear it tomorrow morning at 9:30.”

The next morning, still with no reference to appellant not having waived a jury trial, the trial court commenced the priors hearing.   The prosecutor offered and the court received documentary proof.   The trial court then made “a finding that each of the alleged priors ․ three residential burglaries and one petty theft, is a true and valid prior conviction.” 5

Later, at the sentence hearing, the court imposed a five year consecutive sentence for each of the three residential burglary priors.

 Appellant contends, and respondent acknowledges, she was denied her right to have a jury determine the prior felony conviction allegations.   Respondent further concedes that this denial invalidates the trial court findings that the priors are true.

What respondent does not concede is the further contention by appellant that “she cannot be retried for the priors.”   In her opening brief appellant cited two cases as authority for this contention:  People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277 and People v. Hockersmith (1990) 217 Cal.App.3d 968, 266 Cal.Rptr. 380.

The Attorney General's response is, at best, peculiar.   He states, “The remedy for this error, contrary to appellant's claim, however, is retrial of the prior convictions.”   As authority for this proposition five cases are cited.  (People v. Belmontes (1983) 34 Cal.3d 335, 349, 193 Cal.Rptr. 882;  People v. Garcia (1988) 201 Cal.App.3d 324, 331–332, 247 Cal.Rptr. 94;  People v. Smith (1986) 187 Cal.App.3d 666, 684, 231 Cal.Rptr. 897;  People v. Benson (1982) 130 Cal.App.3d 1000, 1013, 180 Cal.Rptr. 921;  In re Sanchez (1979) 89 Cal.App.3d 631, 152 Cal.Rptr. 681.)   All involve priors admitted by defendants in violation of In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, not priors submitted for determination to a jury.   The cases are inapposite.

Next, the Attorney General attempts to distinguish one of the cases relied on by appellant, People v. Hockersmith.   The purported distinction is that in Hockersmith no evidence was adduced to prove the priors but in the instant case “the prosecution presented ample evidence of appellant's prior convictions.”   The Attorney General is mistaken.   In Hockersmith, the proceeding at which no evidence was offered to prove the priors was the jury trial.   The instant case is indistinguishable:  no evidence was offered to prove the priors during the jury trial.

As to the second case relied upon by appellant, People v. Wojahn, where no such purported distinction could be claimed, the Attorney General says not a word.  Wojahn is simply ignored.

Further, to buttress his argument that retrial is permitted, the Attorney General quotes from a concurring opinion by Justice Barry–Deal.   This reference is remarkable for two reasons.   First, because Justice Barry–Deal agreed that a priors retrial was barred (although for § 1025 not double jeopardy reasons).   Second, because the quoted concurring opinion along with the entire decision was depublished 14 months before the Attorney General filed his brief.6  (Cal.Rules of Court, rule 977(a).)

Finally, abruptly veering from his initial position (that the appropriate “remedy ․ is a retrial of the prior convictions”) the Attorney General concludes that no retrial is required because—notwithstanding the deprivation of appellant's right to a jury trial—“the error was harmless beyond a reasonable doubt.”   For this singular proposition the Attorney General cites no authority.

We are satisfied that appellant's contention is correct:  she cannot, in this proceeding, be retried on the alleged prior convictions.

Our analysis begins 7 with People v. Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277.   The defendant was charged with multiple felonies and was alleged to have suffered a felony conviction.   Defendant's motion to bifurcate the substantive charges from the prior conviction allegation was granted.   But when the jury returned with their guilty verdicts, instead of commencing the “priors” trial, the court discharged them.   Three weeks later, over defendant's objection, the court conducted a “priors” hearing and found the allegation true.

Wojahn ordered the prior stricken, holding “that when the jury was sworn, it was sworn to try both the issue of guilt of the substantive criminal offense and the issue of the truth of the alleged prior conviction.   Consequently jeopardy attached to both issues.   When the trial court improvidently discharged the jury after it returned a guilty verdict but before the issue of the prior conviction was tendered to it, double jeopardy considerations prohibited the impaneling of a new jury to try the issue of the prior conviction.”  (People v. Wojahn, supra, at p. 1035, 198 Cal.Rptr. 277;  original emphasis.)

Prior to August 1990, eight Court of Appeal decisions have directly 8 and closely considered Wojahn.   Of those eight, five disagreed with or were critical of Wojahn.   The California Supreme Court ordered all five cases depublished.  (People v. Armstrong (1986) 180 Cal.App.3d 313, 225 Cal.Rptr. 545;  People v. Ware (Ware I ) (1988) 205 Cal.App.3d 697, 252 Cal.Rptr. 641;  People v. Jackson (1988) 206 Cal.App.3d 1160, 254 Cal.Rptr. 639;  People v. Laury (1989) 209 Cal.App.3d 713, 257 Cal.Rptr. 480;  People v. Casillas (1989) 215 Cal.App.3d 1055, 263 Cal.Rptr. 915.)

Three of those eight approved and followed Wojahn (People v. Hockersmith (1990) 217 Cal.App.3d 968, 266 Cal.Rptr. 380;  People v. Dee (1990) 222 Cal.App.3d 760, 272 Cal.Rptr. 208;  People v. West (1990) 224 Cal.App.3d 1283, 274 Cal.Rptr. 524).   None have been depublished.

We find it difficult to disagree with Justice King:  “The message from the Supreme Court is obvious:  Hockersmith and Wojahn were correct, and Laury and the plurality in Casillas were wrong.   There is no other fathomable reason for the Supreme Court's action.”  (People v. Dee, supra, 222 Cal.App.3d 760, 763, 272 Cal.Rptr. 208.)

Since August 1991, two Court of Appeal decisions have disagreed with Wojahn:  People v. Saunders 9 (1991) 232 Cal.App.3d 1574, 285 Cal.Rptr. 485 and In re Ware (Ware II) (1991) 233 Cal.App.3d 1265, 285 Cal.Rptr. 179.   Their publication fate is yet to be determined by the California Supreme Court.

Our comments about Saunders (which Ware II follows) need only be brief.   Contrary to Saunders, we believe People v. Bracamonte is soundly reasoned and correctly decided.   The rationale of Bracamonte, that the presumption of innocence suffers when prior felony convictions are disclosed, cannot seriously be doubted.  (Cf. CALJIC Nos. 2.20 and 2.23;  Evid.Code, § 1101, subd. (b).)

We also disagree with Saunders that “Time and experience have proved Bracamonte wrong.”   In the decade since Bracamonte was decided thousands of trials have been bifurcated and in only a handful have prosecutor and judicial forgetfulness caused prior-allegation-error.   If the risk of such forgetfulness, however infrequent, may justify stripping an accused of his rights, he soon will have none.

Nor are we persuaded by this fanciful Saunders reasoning:

“If counsel permits the defendant to waive jury on the prior at the beginning of trial without giving the trial court an opportunity to improvidently discharge the jury, counsel is per se ineffective and thus creates reversible error on appeal, at least insofar as the resulting sentence enhancement is concerned.   If counsel represents to the court that there will be a jury waiver as to the prior, counsel must renege if the trial court erroneously discharges the jury before taking the jury waiver, or again be found incompetent.”

The opportunity for trial court improvidence is greatest during a guilt jury trial, yet no one suggests that the waiver of such trials in over 95 percent of all criminal dispositions constitutes per se counsel ineffectiveness.

If the Legislature believes that there is a “Bracamonte–Wojahn conundrum,” as Saunders suggests, they need only amend section 1025.


The trial court's findings that the alleged prior felony convictions are true, are reversed;  the judgment is modified by striking the three five-year felony conviction enhancements and thereby changing the “Total term imposed” from 19 years to 4 years.   The judgment, as modified, is affirmed.


1.   The jury's failure to specify the burglary as “first degree” (Pen.Code, § 1157) is without legal significance since “first degree burglary” and “residential burglary” are one and the same thing.   (People v. Atkins (1989) 210 Cal.App.3d 47, 52, 258 Cal.Rptr. 113;  People v. Wilson (1991) 227 Cal.App.3d 1210, 1218–1219, 278 Cal.Rptr. 319.)

FN2. Unless otherwise noted all statutory references are to the Penal Code..  FN2. Unless otherwise noted all statutory references are to the Penal Code.

3.   Appellant specifically requested CALJIC No. 16.350 which provides:“Every person who enters any noncommercial dwelling house, apartment, or similar place without the consent of the [owner or his agent] [person in lawful possession thereof], or who enters with such consent but remains in any such property without the consent of the [owner or his agent] [person in lawful possession thereof], is guilty of a misdemeanor.”

4.   The sole defense witness, a disco owner, testified that defendant was angry when he left the disco because he had not been paid for “helping out.”

5.   Neither the trial court nor the prosecutor made any reference to the injuring telephone lines (§ 591) allegation.   Later, at the sentence hearing, the petty theft with a prior felony conviction (§ 666) was similarly disregarded.

6.   People v. Casillas was ordered depublished April 26, 1990 (see People v. Hockersmith, supra, 217 Cal.App.3d 968, 266 Cal.Rptr. 380, Reporter's note p. 974.)   The Attorney General filed his brief June 24, 1991.

7.   Earlier cases did not discuss double jeopardy.   E.g., in People v. Morton (1953) 41 Cal.2d 536, 261 P.2d 523 legally insufficient evidence was presented to prove an alleged prior.   The jury's finding was reversed and the California Supreme Court ordered a retrial.  Morton was decided 25 years before Burks v. United States (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 held that double jeopardy barred retrying a conviction reversed for insufficient evidence.   In People v. Luick, supra, 24 Cal.App.3d 555, 101 Cal.Rptr. 252 the court found that appellant had been denied his right to have a jury determine the alleged priors.   The court struck the priors and otherwise affirmed the judgment but gave no reason for not remanding for a priors retrial.

8.   Other cases have referred to Wojahn without criticism (e.g., People v. Rice (1988) 200 Cal.App.3d 647, 246 Cal.Rptr. 177 and Curl v. Superior Court (1989) 223 Cal.App.3d 1058, 258 Cal.Rptr. 308), distinguished it without questioning its rationale (People v. Shaffer (1987) 195 Cal.App.3d 939, 241 Cal.Rptr. 99), or accepted its double jeopardy rationale without citing Wojahn (People v. Jones (1988) 203 Cal.App.3d 456, 249 Cal.Rptr. 840 [applied Burks v. U.S. to prior conviction allegations] ).

FN9. A petition for review has been filed with the California Supreme Court.   As of September 26, 1991, it has not been acted upon..  FN9. A petition for review has been filed with the California Supreme Court.   As of September 26, 1991, it has not been acted upon.

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.

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