People v. Hutchins

199 Cal. App. 3d 1219, 245 Cal. Rptr. 541, 1988 Cal. App. LEXIS 283

Opinions

Opinion

BENKE, J.

Albert Hutchins appeals his convictions for robbery (Pen. Code,² § 211), burglary in the first degree (§ 459), assault with a deadly weapon (§ 245, subd. (a)(1)), three counts of forcible oral copulation (§ 288a, subd. (c)), and two counts of forcible rape (§ 261, subd. (2)). The jury found true an allegation of weapons use (§ 12022.3) during one of the acts of oral copulation. Hutchins admitted a prior out-of-state rape conviction pursuant to sections 667, subdivision (a), 667.5, subdivision (a), and 667.6, subdivision (a).

The trial court imposed the upper term of five years for the robbery conviction as well as a full, consecutive term of eight years on one of the oral copulation counts which was further enhanced with the weapons use finding. Full, consecutive terms of eight years were imposed for the rape convictions. A five-year enhancement pursuant to section 667.6, subdivision (a), was added based on appellant’s prior conviction. Sentence on the remaining oral copulation counts was imposed concurrently. Sentencing on the burglary and assault convictions was stayed pursuant to section 654.

Hutchins argues the trial court improperly allowed impeachment with a prior felony conviction, improperly instructed that a willful falsehood by a witness could result in the distrust of other portions of the witness’s testimony and improperly directed a verdict of first degree burglary.

Hutchins also claims sentencing error, arguing that section 654 precluded sentencing on the robbery conviction. In addition, he alleges it was improper to impose a full, consecutive sentence on the oral copulation counts and that the oral copulation count could not be enhanced with the weapons use allegation. Finally, Hutchins urges the trial court failed to state reasons for imposition of the upper base term or for choosing the aggravated term for full consecutive sentencing and gave inadequate reasons for imposing consecutive sentences.

I-III

Footnotes

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IV

Directed Verdict

In instructing on the elements of first degree burglary, the trial court made the comment: “The allegation is that the entry was made into an inhabited building and a residence. Those words have their normal and everyday meaning. And I think it’s clear from the evidence here that this was an inhabited building and a residence. I don’t think there’s any contention to the contrary in that regard.”

Later, when explaining how verdict forms were to be filled out, the court made these comments: “Burglary is an offense which, under our law, is divided into degrees, first degree and second degree. One of your responsibilities, if you find Mr. Hutchins guilty of the crime of burglary, will be to fix the degree. Now, we haven’t talked much about that up to this point, because under our law a burglary of an inhabited dwelling house, such as this structure here, this apartment where the—Miss [B.] and her mother were living, is a burglary in the first degree as a matter of law. So if you find Mr. Hutchins guilty, and if you find that the burglary was of an inhabited building and a residence, then as a matter of law this is a burglary in the first degree. But we still require you fix the degree. So there is a place in the verdict form here for you to indicate whether the degree is first or second degree.

“There’s a place for you to indicate your finding whether the burglary was or was not committed upon an inhabited building and a residence.”

Appellant argues the trial court unconstitutionally directed a verdict of first degree burglary. Specifically, he contends the court removed from the jury the determination of whether the place burglarized was an “inhabited dwelling” (§ 460) and thus, whether the burglary was of the first or second degree. He urges per se reversal is required.

If there was any issue in this case which was not in dispute, it was the location of the offenses. Appellant never disputed the offenses occurred. Both the People and appellant accepted the location of the offenses as the “inhabited” apartment where the victim, her mother and brother lived. Viewing this record as a whole, the trial court’s statement regarding the nature of the location was obviously the result of the absolutely uncontested nature of the issue. In the context of this case where the jury was properly instructed, the court’s comment was not a directed verdict. Moreover, the court’s comments cannot be construed as being the equivalent of a directed verdict. But even if error, under any standard of review, the error is harmless. There was no evidence the burglary in this case was of the second degree. One can conclude by way of analogy that the instruction given was the functional equivalent of a failure to instruct on second degree burglary. Such instruction- is not required without “evidence substantial enough to merit consideration.” (People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1].) An argument may also be made that the issue as to the degree of the burglary had been conceded by appellant. (Cf. People v. Reynolds (1986) 186 Cal.App.3d 988, 996-997 [233 Cal.Rptr. 596].) It may also be urged that pursuant to the recent decision in People v. Jarrell (1987) 196 Cal.App.3d 604 [242 Cal.Rptr. 219], taking the issue of the degree of the offense from the jury does not require reversal because it does not involve an element of the underlying crime of burglary.

On the facts presented here, we are content to conclude that any error was indeed harmless.

V-VII*

Judgment of conviction affirmed; case remanded for resentencing.

Wiener, Acting P. J., and Work, J., concurred.

2

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

See footnote, ante, page 1219.

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See footnote, ante, page 1219.