PEOPLE v. HOUGHTON (1991)

Harry Houghton appeals the judgment entered on his conviction by jury of one count of residential burglary and the trial court's true finding he had suffered two prior serious felony convictions. (Pen. Code, §§ 459, 460, 667, subd. (a), 1192.7, subd. (c)(19).)² He contends the trial court erred by failing, sua sponte, to instruct the jury in the manner established by People v. Brady (1987) 190 Cal.App.3d 124, 235 Cal.Rptr. 248, for certain cases involving evidence to support a defense of lack of the necessary intent for aiding and abetting a burglary. Houghton also claims the evidence did not support the trial court's instruction of the jury in the language of CALJIC No. 2.03, dealing with consciousness of guilt and falsehoods.³ He further argues he was denied his right to a fair trial by prosecutorial misconduct and by the cumulative errors alleged. We have found any error which occurred was harmless and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The judgment we review resulted from Houghton's second jury trial on these charges; the jury in the first trial was unable to reach a verdict. In the interim between the trials, Houghton moved for dismissal of the charges under section 1385, subdivision (a), pointing out the first jury's vote had been 11 to 1 for acquittal. The motion was denied.

The facts which gave rise to the charges were these. A neighbor reported a burglary in progress because she heard banging noises in the next apartment, even though she knew neither occupant was home. Police responded to the site. As one officer approached the front door of the unlit apartment, Houghton opened it, said, “Oh shit,” and then slammed the door. Another officer was at the rear of the apartment near an open window whose screen had been removed. One person's shadow was visible and there appeared to be another person making shuffling noises behind the shadow. The officers told the shadowy figure to go open the front door for them, and yelled for everyone to come out with their hands up. Houghton came out, but a second person could be heard crashing around the back and was seen escaping over a fence. An unidentified person's shoe was found in the apartment bathroom, and the sink was broken off from the wall as though someone had climbed on it.

The officers' investigation showed the front door had been kicked in, as the wood around the latch was splintered and popped. Many items inside the apartment were on the floor in disarray, including a jewelry box, a fishing tackle box, and a suitcase. Some jewelry was missing and was not recovered. A pillowcase containing a videocassette recorder (VCR) and a television cable box was found on a chair next to a window, and part of the stereo system had been moved from the living room to the dining room. No men's clothing was moved. Both occupants of the apartment testified they did not know Houghton or give permission to anyone to go into their apartment.

When Houghton was patted down by police, a remote control device for a VCR of the same make as the VCR in the pillowcase was found in his pants pocket. It had a distinctive sticker on it placed there by one of the apartment's occupants. Houghton was read his rights and agreed to talk to officers. He explained to the first interviewing officer he was holding the remote control device in his hand when he talked to the officer at the open window, then put it in his pocket. He said he had been visiting a friend on 49th Street, whose name he didn't know, when another friend by the name of Peanut (whose real name and address he didn't know) came over, smoked rock cocaine with him, and then told Houghton he needed his help in going to Peanut's ex-girlfriend's apartment to retrieve Peanut's belongings.⁴ They went to the apartment where Peanut rang the bell about six times, then kicked in the door. They went in and found no one home. Peanut said, “Help me get my VCR,” and put it in a bag. Houghton took the remote control.

When Houghton talked to the second interviewing officer (the sergeant), he said he and Peanut were walking down Euclid Avenue when one of them needed to go to a hospital for a reason he couldn't remember, so they flagged down a car (whose driver they didn't know), went to the hospital, then walked to the apartment.⁵ Houghton did not mention to the sergeant he was at a friend's house the evening of the incident, or name the driver of the car as “Larry,” as he later did at trial.

At trial, Houghton explained the evening's events. He testified he was at his friend Sheila's house on Ozark Street with a lady friend, “Bobbie,” the evening of the incident. Peanut came over and they had some wine and rock cocaine together. Peanut offered Houghton $55 to get him a ride and help move his belongings from his ex-girlfriend's apartment. Houghton got a friend, Larry, to drive them, but Peanut could not pay Larry as arranged, so Larry left them at Peanut's brother's house. Peanut and Houghton walked to the apartment so Peanut could get his clothes and shoes. After Peanut kicked the door in, he asked Houghton to watch out the window for the ex-girlfriend's car. Houghton did so by opening the window and taking off the screen, as he felt hot in his jacket. When Peanut came out of the bedroom with the VCR in the pillowcase, Houghton felt he was taking more things than he had said he would. Peanut handed Houghton the remote control. When the police spoke to Houghton through the window, Houghton explained, “This is his [Peanut's] old lady's house.” Later, Houghton learned Peanut's real name (Curtis Green or Christopher Green) and told Detective Misgram (also called Detective Musgrove) about it and about how he had been at Sheila's house that night. However, Peanut was never found by police.⁶

After Houghton's testimony, one of the officers who responded to the incident was recalled to testify Houghton had not had a jacket on when booked into custody. The female occupant of the apartment testified she had never known or dated anyone named “Peanut.”

At the end of trial, the prosecutor told the court his last witness, “a critical witness to my case,” was not there yet, and asked for a delay. The court refused. When the prosecutor called Detective Misgram to testify, there was no response. The prosecutor then told the court in the presence of the jury, “He's my last witness, and he's a critical witness to the prosecution case.” The court responded, “Counsel, your statement has already been made on the record.” Exhibits were admitted into evidence and the prosecutor made his closing argument. Among other comments about Houghton's account of the incident, the prosecutor said:

“Put yourself in his lap. How would he think? Think of his background. Is the story creditable [sic]? Think about those felony convictions. Think about his willingness to go break the law. [¶] How was he able to come up with it? Because he's streetwise․ He comes up with a classic story.”

After the prosecutor finished arguing, defense counsel moved for a mistrial based on the prosecutor's statement that his crucial witness was not called, possibly leaving the jury with the idea that conviction was sure if this witness had been present. The court denied the motion, noting “It can cut both ways.” Defense counsel then requested an admonition to the jury about the prosecutor's statement, which was denied.

In closing argument, defense counsel told the jury, “Clearly, clearly, the issue in this case is the intent ․,” regarding what Houghton “was thinking when he entered the place.” Counsel further stated, “And our defense is, Mr. Houghton went into the apartment, he made the act, but when he entered that apartment, he did not have the intent to steal.”

The jury was given a number of instructions, including a group of three modified pattern instructions on the intent required for a verdict of guilty: CALJIC No. 3.01, “Aiding and Abetting--Defined,” No. 3.31, “Concurrence of Act and Specific Intent,” and No. 14.50, “Burglary--Defined.” (We shall set forth the text of these instructions post.) As pertinent herein, the jury was also instructed in the modified language of CALJIC No. 2.03, “Consciousness of Guilt--Falsehood.”

After two and one-half hours' deliberations, the jury returned a verdict convicting Houghton of the residential burglary charge (§§ 459, 460). A court trial on the prior serious felony convictions was held and they were found true. (§§ 667, subd. (a), 1192.7, subd. (c)(19).) Houghton was sentenced to state prison for the midterm of four years, and received additional five-year terms for each of the two prior felony convictions, for a total sentence of 14 years. He appeals.

DISCUSSION

We first address Houghton's claim the trial court had a sua sponte duty to give a Brady instruction (People v. Brady, supra, 190 Cal.App.3d 124, 235 Cal.Rptr. 248). We then consider the argument the court erred in instructing the jury pursuant to CALJIC No. 2.03, regarding consciousness of guilt and falsehoods. In conclusion we shall address the questions of prosecutorial misconduct and cumulative error.

I

Brady Instruction

Houghton contends it was reversible error for the trial court to fail to instruct the jury, sua sponte, that he could not be convicted of aiding and abetting the burglary (§ 31)⁷ unless he had knowledge before or at the time he and Peanut entered the apartment that Peanut had the intent to steal or commit a felony. He relies on People v. Brady, supra, 190 Cal.App.3d 124, 235 Cal.Rptr. 248, and the cases following it, People v. Forte (1988) 204 Cal.App.3d 1317, 251 Cal.Rptr. 855, and People v. Macedo (1989) 213 Cal.App.3d 554, 261 Cal.Rptr. 754 (prior opn. vacated, 209 Cal.App.3d 1408, 257 Cal.Rptr. 844, and trans. to Ct.App. with directions, July 13, 1989, 260 Cal.Rptr. 265, 775 P.2d 1034).

Brady, supra, 190 Cal.App.3d 124, 235 Cal.Rptr. 248, et al. involved a particular fact pattern which is distinguishable from the facts before us: a perpetrator of the burglary offense who entered the subject building with intent to commit a felony therein, and a codefendant (appellants Brady, Forte, and Macedo) who never entered the building and who later claimed he was not a participant in the offense. Specifically, Brady went with the perpetrator to an apartment and, standing at the threshhold, was handed two stereos from inside the premises which the perpetrator said belonged to him; it turned out they were stolen. (Id. at pp. 129-130, 235 Cal.Rptr. 248.) Forte knew of the perpetrator's burglarious intent, but claimed he refused to help. He was seen, however, standing at the front door of the burgled premises during the event after being called there by the burglar; he said he didn't know why he went. (People v. Forte, supra, 204 Cal.App.3d at p. 1320, 251 Cal.Rptr. 855.) Macedo, in his van, waited outside a garage for a friend who emerged riding a stolen bicycle; Macedo denied knowing the friend was planning to steal the bicycle, and followed along because he panicked. (People v. Macedo, supra, 213 Cal.App.3d at p. 557, 261 Cal.Rptr. 754.) In all these cases, the evidence raised the possibility that the defendant, while not the burglar, might have actually become an accomplice in a later offense (such as larceny) committed after the perpetrator's entry into the burglarized structure, if the defendant aided and abetted in the commission of the second offense. (People v. Brady, supra, 190 Cal.App.3d at p. 134, 235 Cal.Rptr. 248.)

In contrast to these facts, Houghton himself was found inside the burgled premises, after a breaking and entering, holding a piece of property taken from the premises. Thus, the facts we examine are distinguishable from the Brady situation: there is evidence from which a jury could infer Houghton was a principal in the burglary offense. However, since there is also evidence he was arguably an aider and abettor of Peanut's burglary offense, we must examine the premise of the Brady line of cases. Here, as in Brady, Forte, and Macedo, the same set of three modified pattern instructions-- CALJIC Nos. 3.01, 3.31, and 14.50--was given regarding the element of specific intent in the offense charged. These instructions read as follows:

“[No. 3.01:] A person aids and abets the commission of a crime when he or she, with the knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating the commission of a crime, by act or advice, aids, promotes, encourages or instigates the commission of a crime. [¶] ․ Mere presence at the scene of a crime which does not itself assist the commission of crime does not amount [to] aiding and abetting. [¶] Mere knowledge that a crime [is] being committed and the failure to prevent it does not amount to aiding and abetting.

“․

“[No. 3.31:] In the crime charged in Count 1 of the Information, namely burglary, ․ there must exist a union or joint operation of act or conduct in [sic] a certain specific intent in the mind of the perpetrator. Unless such specific intent exists the crime or allegation to which it relates, is not committed. [¶] The specific intent required is included in the definition of the crime charged.”

The definition of the crime charged, burglary, was then given to the jury in the language of CALJIC No. 14.50:

“Defendant is a [sic] accused in Count 1 of the Information of having committed the crime of burglary, a violation of Section 459 of the Penal Code.

“Every person who enters any structure of the type shown by the evidence in this case with the specific intent to steal, take and carry away the personal property of another of any value and with the further specific intent to deprive the owner permanently of such property, is guilty of the crime of burglary in violation of Penal Code Section 459.

“It is immaterial whether the intent with which the entry was made was thereafter carried out.

“In order to prove the commission of such crime, each of the following elements must be proved:

“A person entered an inhabited dwelling house;

“At the time of the entry, such person had the specific intent to steal and take away someone else's property, and intended to deprive the owner permanently of such property.”

The Brady line of cases finds a particular defect, ambiguity, in this group of instructions (CALJIC Nos. 3.01, 3.31, and 14.50), concluding they do not sufficiently inform the jury of all necessary elements for convicting a defendant as an aider and abettor to burglary. As summarized in People v. Macedo, supra, 213 Cal.App.3d 554, 559, 261 Cal.Rptr. 754 (citing Brady), this ambiguity is as follows:

“Specifically, the court [in Brady] noted that CALJIC No. 3.01 is ‘the source of the ambiguity’ [citation] because it ‘does not inform the jury when the “commission” of the burglary is over; it does not say at what point the putative aider and abettor must gain the knowledge of the perpetrator's unlawful purpose.’ [Citation.] When given with CALJIC No. 14.50, the instruction ‘is ambiguous precisely because it does not mesh with the burglary instruction so as to specify that the knowledgeable aid must be rendered in connection with the entry of the burglarized structure.’ [Citation.] The court also concluded that CALJIC No. 14.50 does not cure the ambiguity because ‘nothing in this instruction ․ suggests that the defendant's knowledge of the perpetrator's intent must be gained prior to or at the time of entry.’ [Citation.] Finally, the court found that CALJIC No. 3.31, requiring a concurrence of act and specific intent, likewise does not resolve the ambiguity because it ‘[does] not inform the jury that it cannot convict defendant as an aider and abettor upon the basis of knowledge gained after [the perpetrator's] entry into [the victim's] apartment.’ [Citation.]” (Original italics.)

Based on this perceived instructional ambiguity, in Brady, Forte, and Macedo, the burglary convictions were reversed for failure to give a distinguishing instruction that a conviction for aiding and abetting could not be based on knowledge that the alleged aider and abettor gained after the perpetrator's entry into the premises. The theories on which these results were reached varied in the three cases. In Brady, although the defendant had requested such instructions, they were not in correct form. The Court of Appeal found these proffered instructions to be potentially misleading, but reversed the conviction, relying on the rule that a trial court must correct defects in requested instructions “where the nature of the defendant's theory is made clear to it.” (People v. Brady, supra, 190 Cal.App.3d at pp. 135-136, 235 Cal.Rptr. 248, relying on People v. Guthrie (1983) 144 Cal.App.3d 832, 842, 193 Cal.Rptr. 54.)⁸

Similarly, in Forte the defendant's requested instruction (defining when the intent to aid and abet a burglary must be formed) was found by the Court of Appeal to fail to set forth a correct legal theory; however, the court relied on authority requiring sua sponte instructions to justify reversal of the conviction, on the basis that substantial evidence supported the requested instruction:

“Nevertheless, this proposed instruction was sufficient to alert the trial court to the theory of the defense, requiring the trial court, sua sponte, to give a correctly phrased instruction. (People v. Stewart (1976) 16 Cal.3d 133, 140 [127 Cal.Rptr. 117, 544 P.2d 1317].)” (People v. Forte, supra, 204 Cal.App.3d at p. 1323, 251 Cal.Rptr. 855.)

Next, in People v. Macedo, supra, 213 Cal.App.3d 554, 560-561, 261 Cal.Rptr. 754, where there was no request for an instruction about the specific intent required for a conviction of aiding and abetting the burglary, the court (without analysis) adopted the Forte approach creating a sua sponte duty to instruct on the requisite intent, where substantial evidence would support the giving of a more precise instruction on intent.

Having examined the theories of these three cases, we do not agree the perceived ambiguity arising from these three CALJIC instructions creates a sua sponte duty on the part of the trial court to create a clarifying instruction. First, as we shall explain, the nature of this clarifying or pinpoint⁹ instruction does not require sua sponte treatment. Second, under these facts, no significant problem of ambiguity or confusion arises which would demand clarification of the kind required in Brady.

First, we do not believe the procedural context of either Brady or Forte supports the imposition of a sua sponte duty in such a case. Both these cases dealt with instructions offered by the defense which identified the defense theory, albeit stated in an improper fashion. Although there is authority imposing on the trial court the duty to correct and give such offered instruction (e.g., People v. Guthrie, supra, 144 Cal.App.3d 832, 193 Cal.Rptr. 54), it is a far different matter to require a trial judge--without any request by defense counsel--to identify the need for and to craft an appropriate instruction to clarify the ambiguity perceived by the court in Brady. As noted above, the court in Macedo failed to analyze the critical difference between its facts and those in Brady and Forte (i.e., Macedo's failure to request the proposed instruction) before concluding such a duty to instruct existed even absent a request. Thus, although we are content to follow Brady and Forte insofar as they require the correction and giving of clarifying instructions in appropriate cases (thus imposing only a modified sua sponte duty to correct and give requested instructions), we part company with the court in Macedo when it requires such instruction to be given without request.

Existing law clearly requires that a defendant who desires further amplification of otherwise correct instructions is required to request such instruction at trial; if no such request is made, the point may not be raised for the first time on appeal. (People v. Martinez (1978) 82 Cal.App.3d 1, 19, 147 Cal.Rptr. 208.) Moreover, in People v. Kimble (1988) 44 Cal.3d 480, 501, 244 Cal.Rptr. 148, 749 P.2d 803, the Supreme Court took pains to explain an instruction which is required to clarify the scope of the element of an offense does not create a new and separate element of the crime, on which further instructions must be given.

Similarly, if the proposed instruction is considered as one which pinpoints the evidence supporting Houghton's account of his actual intent, there was a defense duty to request it. (People v. Sears (1970) 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 465 P.2d 847; People v. Adrian (1982) 135 Cal.App.3d 335, 338-339, 185 Cal.Rptr. 506.)

Moreover, to assess the claim of instructional error, we are authorized to evaluate the remarks of counsel (e.g., in closing argument) in connection with properly given instructions to determine whether the jury received adequate information to decide the case. (People v. Brown (1988) 45 Cal.3d 1247, 1256, 248 Cal.Rptr. 817, 756 P.2d 204.) Here, Houghton's case was presented to the jury on the straightforward defense theory that he lacked the necessary criminal intent when he entered the apartment. His attorney correctly informed the jury in closing argument that “Clearly, clearly, the issue in this case is the intent․” She also emphasized that Houghton's defense was his lack of intent to steal. Houghton testified he relied on Peanut's statements that they were going over to the apartment to pick up Peanut's own possessions; the jury was made fully aware of his defense of a lack of his own criminal intent and a lack of knowledge of Peanut's criminal intent. Thus, unlike the defendants in Brady, Forte, and Macedo, Houghton did not emphasize at his trial the distinction between “aiding and abetting the commission of an offense [and] the wholly different case of aiding the perpetrator after its commission.” (People v. Brady, supra, 190 Cal.App.3d at p. 136, 235 Cal.Rptr. 248.)

Given the state of the evidence in this case, we disagree with Brady et al. that the pattern instructions given here (CALJIC Nos. 14.50, 3.01, and 3.31) raise an inherent ambiguity about the existence of the necessary intent for an aiding and abetting conviction. These instructions accurately and adequately defined the principles at issue. It is clear from CALJIC No. 14.50 that burglary requires specific intent at the time of entry into the subject premises. This instruction, combined with CALJIC No. 3.01 on aiding and abetting and No. 3.31 on concurrence of act and specific intent, gave the jury the necessary tools to evaluate all the evidence in this case. When defense counsel does not seek additional instruction to clarify or support the defendant's theory of the case, the trial court, already burdened with a plethora of sua sponte duties, should not be required to carry an even heavier load. The most that can reasonably be imposed upon our hardworking trial courts in this context is, as set forth in Brady and Forte, a modified sua sponte duty to correct and give as corrected a pertinent requested instruction.¹⁰

Since we recognize we are departing from precedent from another district, we reiterate the factual differences between this case and Brady, Forte, and Macedo make that authority distinguishable. This record does not bring this case within the Brady-Forte rule. The circumstances under which Houghton was discovered and arrested were as consistent with a charge of being a principal in the burglary as with a charge of aiding and abetting, unlike the defendants in Brady, Forte, and Macedo. Because there was substantial evidence that Houghton was a principal in the offense (the breaking and entering, the property taken), the evidence did not cry out for sua sponte instruction on the particular defense theory of an innocent non-participant who lacked knowledge of the perpetrator's bad intent upon entry into the premises. Our inquiry is whether the defense case adequately put the trial court on notice of a particular duty to instruct on a particular general principle of law “‘closely and openly connected with the facts before the court, and which [is] necessary for the jury's understanding of the case.”’ (People v. Stewart, supra, 16 Cal.3d 133, 140, 127 Cal.Rptr. 117, 544 P.2d 1317.) We do not believe these facts raised such a duty.

In conclusion on this issue, we recognize reasonable minds can differ on the evaluation of “substantial evidence” to support a defense and whether the proposed instruction here is “closely and openly connected with the facts before the court” (People v. Stewart, supra, 16 Cal.3d 133, 140, 127 Cal.Rptr. 117, 544 P.2d 1317). For this reason, we inquire: if it were in fact error for the court to fail to give this sua sponte instruction, did any harmful prejudice result? (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.) On this record, the answer is no. There was evidence from which the jury could have concluded Houghton was in fact a principal in the case, equipped with his own specific intent to steal upon entry into the apartment. This is not a case like Brady or Macedo where the defendant presented enough evidence to support an inference he was truly ignorant of the perpetrator's bad intent and surprised by the consequences to himself of such intent.¹¹ In any case, this record does not support any claim by Houghton he was found guilty of a crime he did not commit (People v. Brady, supra, 190 Cal.App.3d at p. 138, 235 Cal.Rptr. 248), such that any error which occurred was prejudicial. Thus, his first claim of error is without merit.

II-III* DISPOSITION

The judgment is affirmed.

FOOTNOTES

2.  All statutory references are to the Penal Code unless otherwise specified.

3.  All references to jury instructions are to CALJIC, Fifth edition 1988.

4.  The ex-girlfriend had a restraining order against Peanut.

5.  Testifying at the second trial, the police sergeant refreshed his recollection with the transcript of his testimony at the first trial.

6.  After Houghton testified, both his counsel and the prosecutor brought out evidence that Houghton had suffered two prior felony convictions.

7.  Section 31, as pertinent herein, defines principals in a crime to include all persons concerned in its commission, including those who directly commit the criminal act and those who aid and abet in its commission.

8.  The language in People v. Guthrie, supra, 144 Cal.App.3d 832, 842, 193 Cal.Rptr. 54, that Brady relied upon was: “A trial court has a duty, sua sponte, to correct and give a proposed defense instruction that incorrectly states the law where it appears that the defendant is relying on such a defense or if there is substantial evidence supportive of such a defense. (People v. Stewart [1976] 16 Cal.3d [133] at p. 140 [127 Cal.Rptr. 117, 544 P.2d 1317].)”

9.  “A pinpoint instruction pinpoints the evidence in the case in the light of defendant's theory of defense and instructs the jury that the People bear the burden of ultimate persuasion on the issue which the instruction pinpoints. [Citation.] It presupposes that the jury has been adequately instructed on the elements of the offense charged.” (People v. Brady, supra, 190 Cal.App.3d at p. 135, 235 Cal.Rptr. 248.)

10.  Since the trial was conducted, the authors of CALJIC have added a new instruction, No. 14.54 (1989 New), incorporating the Brady and Forte authority, to be given accompanied by Nos. 3.00, 3.01, and 14.50: “In order for an accused to be guilty of burglary as an aider and abetter, [he] [she] must have formed the intent to encourage or facilitate the perpetrator prior to or at the time [that person] ․ made the entry into the _ with the required specific intent.” The Use Note comments, “The court has a sua sponte duty to instruct the jury, when the evidence warrants it, that intent to aid and abet a burglary must be formed prior to or at the time of the burglary. [Citations.]” As we have discussed above, the critical factors to be considered are not only whether the evidence warrants such an instruction but also whether any form of request for such an instruction was made, thus bringing into play the modified sua sponte duty to correct and give the requested instruction.

11.  Forte, it will be remembered, involved a defendant who knew of the perpetrator's intent to steal but who denied participation in the burglary, despite his proximity to the site during the event.

FOOTNOTE.  See footnote 1, ante.

HUFFMAN, Associate Justice.

BENKE, Acting P.J., and FROEHLICH, J., concur.