Opinion
KAUS, P. J.
Defendant was charged with the nighttime burglary of the home of Charles W. Rubin on July 7, 1979. After a jury trial he was found guilty as charged and sentenced to prison. He appeals.
[41]*41Facts
Charles Rubin lived at 1707 Corning, Los Angeles. He retired at about 11 p.m. on July 6, 1979 and was awakened between 4:30 and 5 a.m. on July 7 when he heard footsteps coming over a chain link fence. This was followed by an announcement: “This is the police. We’ve got the house surrounded. Come out with your hands up.” He then heard someone say “Okay! Okay. I’m coming out.” Rubin never saw the apparent burglar. He did, however, meet with the police and they went through the house together. Everything was in order except for a slit in the screen near a window latch in the second bedroom. In the living room Rubin found two screwdrivers and a flashlight which were not his. There was no evidence of ransacking.
At the trial Rubin further testified that he had never met defendant before and had not given him permission to be in his home that night or at any other time.
The reason the police action had been so efficient was that officers had actually observed defendant entering the Rubin residence. They then ordered him out, as overheard by Rubin. According to one officer when defendant emerged he said: “Damn, I didn’t know there was at home. I had checked the garage and the bedroom was empty when I went in.” He was placed under arrest. A pair of gloves was from his coat pocket. He later stated that he had been looking for money or anything that he could sell for the purpose of buying a ticket to fly back east to his ailing mother.
Defendant testified in his own defense: He lived at 710 South Sometime after midnight on July 7 he received a call from two friends—Paul and Mary Lambert—who were living in the general area of the Rubin residence. Mr. Lambert asked him to assist him with a stalled car—a service he had rendered once before. Lambert wanted to get the car fixed before 6 a.m. because he had things to do. Defendant took a bus to Venice and La Cienega. He went to a shopping center and saw several policemen “milling around.” Knowing that the area was a high crime area—a “jungle”—he was afraid that he might be arrested. He walked north to get away from the police. When he reached Olympic and La Cienega he saw three more police cars. One of them started to come toward him. He decided that he had better leave. Continuously pursued by the police he found himself in a residential area. After a couple of abortive efforts to hide in other structures, he [42]*42“kind of a little bit panicked” and cut his way into the Rubin residence. He was then flushed out by the police who had caught up with him. He did not tell the police that he had been looking for money to visit his ailing mother. To the best of his knowledge his mother was not sick. At the time of the trial he did not know where Mr. Lambert was and had misplaced his address. He had known him for 15 years.
Additional facts will be stated during our discussion.
Discussion
On appeal defendant claims: (1) A certain ruling by the trial court resulted in denying him “his due process right to present testimony on his own behalf’; and (2) that the trial court committed reversible error in refusing his request for an instruction on trespass.
Defendant’s first point results from the following facts: During a chambers discussion at the outset of the trial, the prosecutor made it a matter of record that he would not be using any prior burglary to impeach defendant—he thought there were about five. Defendant then adverted to the fact that according to the police he made the following statement when he was cornered in the Rubin “I guess I’m not as good as I used to be. How did you guys see me?” After some argument the court ruled that the probative value of that statement was outweighed by its prejudicial effect.1
Later on, during defendant’s direct examination, his counsel asked: “Had you had any recent experience that caused you to have any fear of being arrested even if you hadn’t done something?” The obvious purpose of that question was to explain defendant’s asserted fear of the various police officers and units whom he encountered. At that point the prosecutor asked to approach the bench where counsel for defendant made the offer of proof copied below.2 After some argument, [43]*43the court ruled that if defendant so testified the probative value of the previously supressed statement about defendant not being as good as he used to be would increase to the point where the court would reverse its previous ruling.
The upshot of all this was that defendant did not relate the Pasadena incident and the statement he made at the time of his arrest remained suppressed.
It seems obvious to us that the trial court’s ruling was well its discretion. Defendant was caught in a strange residence in the small hours of the morning. He gave a bizarre explanation for his which he desired to bolster with a story—perhaps true, perhaps not—about his recent misadventures in Pasadena. It seems too obvious to require elaborate analysis that, the case having reached this posture, it became vital for the People to demonstrate that defendant’s nighttime presence in a stranger’s home was not triggered by the Pasadena but was, in truth, consistent with his lifestyle.
There was no error.
More serious is defendant’s contention that the trial court committed error in refusing to request instructions on trespass.3
He first claims that, in spite of weighty authority to the contrary (e.g., People v. Pendleton (1979) 25 Cal.3d 371, 382 [158 Cal.Rptr. 343, 599 P.2d 649]; People v. Yoder (1979) 100 Cal.App.3d 333, 339-340 [161 Cal.Rptr. 35]) trespass is a necessarily included offense in the charge of burglary. His argument that the cited precedents and those on which they rely are wrong, is unconvincing.
In addition, however, defendant relies on the rule which had its genesis in People v. Collins (1960) 54 Cal.2d 57, 59-60. [4 Cal.Rptr. 158, [44]*44351 P.2d 326]. There the Supreme Court upheld a conviction for what was then known as statutory rape, although the information had charged forcible rape. The basis for the affirmance was that the age of the prosecutrix had been proved at the preliminary hearing. Therefore, the defendant had not been misled in preparing this defense. Further, the Supreme Court pointed out that statutory rape and forcible rape were both violations of the same Penal Code section which merely “the different circumstances under which an act of intercourse constitutes the crime of rape.” This last consideration was for many years thought to be a limitation on the Collins doctrine. (People v. Leech (1965) 232 Cal.App.2d 397, 399-400 [42 Cal.Rptr. 745]; see also People v. Tatem (1976) 62 Cal.App.3d 655, 658 [133 Cal.Rptr. 265]; People v. Ramos (1972) 25 Cal.App.3d 529, 537, fn. 4 [101 Cal.Rptr. 230].) However, in People v. Cole
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Opinion
KAUS, P. J.
Defendant was charged with the nighttime burglary of the home of Charles W. Rubin on July 7, 1979. After a jury trial he was found guilty as charged and sentenced to prison. He appeals.
[41]*41Facts
Charles Rubin lived at 1707 Corning, Los Angeles. He retired at about 11 p.m. on July 6, 1979 and was awakened between 4:30 and 5 a.m. on July 7 when he heard footsteps coming over a chain link fence. This was followed by an announcement: “This is the police. We’ve got the house surrounded. Come out with your hands up.” He then heard someone say “Okay! Okay. I’m coming out.” Rubin never saw the apparent burglar. He did, however, meet with the police and they went through the house together. Everything was in order except for a slit in the screen near a window latch in the second bedroom. In the living room Rubin found two screwdrivers and a flashlight which were not his. There was no evidence of ransacking.
At the trial Rubin further testified that he had never met defendant before and had not given him permission to be in his home that night or at any other time.
The reason the police action had been so efficient was that officers had actually observed defendant entering the Rubin residence. They then ordered him out, as overheard by Rubin. According to one officer when defendant emerged he said: “Damn, I didn’t know there was at home. I had checked the garage and the bedroom was empty when I went in.” He was placed under arrest. A pair of gloves was from his coat pocket. He later stated that he had been looking for money or anything that he could sell for the purpose of buying a ticket to fly back east to his ailing mother.
Defendant testified in his own defense: He lived at 710 South Sometime after midnight on July 7 he received a call from two friends—Paul and Mary Lambert—who were living in the general area of the Rubin residence. Mr. Lambert asked him to assist him with a stalled car—a service he had rendered once before. Lambert wanted to get the car fixed before 6 a.m. because he had things to do. Defendant took a bus to Venice and La Cienega. He went to a shopping center and saw several policemen “milling around.” Knowing that the area was a high crime area—a “jungle”—he was afraid that he might be arrested. He walked north to get away from the police. When he reached Olympic and La Cienega he saw three more police cars. One of them started to come toward him. He decided that he had better leave. Continuously pursued by the police he found himself in a residential area. After a couple of abortive efforts to hide in other structures, he [42]*42“kind of a little bit panicked” and cut his way into the Rubin residence. He was then flushed out by the police who had caught up with him. He did not tell the police that he had been looking for money to visit his ailing mother. To the best of his knowledge his mother was not sick. At the time of the trial he did not know where Mr. Lambert was and had misplaced his address. He had known him for 15 years.
Additional facts will be stated during our discussion.
Discussion
On appeal defendant claims: (1) A certain ruling by the trial court resulted in denying him “his due process right to present testimony on his own behalf’; and (2) that the trial court committed reversible error in refusing his request for an instruction on trespass.
Defendant’s first point results from the following facts: During a chambers discussion at the outset of the trial, the prosecutor made it a matter of record that he would not be using any prior burglary to impeach defendant—he thought there were about five. Defendant then adverted to the fact that according to the police he made the following statement when he was cornered in the Rubin “I guess I’m not as good as I used to be. How did you guys see me?” After some argument the court ruled that the probative value of that statement was outweighed by its prejudicial effect.1
Later on, during defendant’s direct examination, his counsel asked: “Had you had any recent experience that caused you to have any fear of being arrested even if you hadn’t done something?” The obvious purpose of that question was to explain defendant’s asserted fear of the various police officers and units whom he encountered. At that point the prosecutor asked to approach the bench where counsel for defendant made the offer of proof copied below.2 After some argument, [43]*43the court ruled that if defendant so testified the probative value of the previously supressed statement about defendant not being as good as he used to be would increase to the point where the court would reverse its previous ruling.
The upshot of all this was that defendant did not relate the Pasadena incident and the statement he made at the time of his arrest remained suppressed.
It seems obvious to us that the trial court’s ruling was well its discretion. Defendant was caught in a strange residence in the small hours of the morning. He gave a bizarre explanation for his which he desired to bolster with a story—perhaps true, perhaps not—about his recent misadventures in Pasadena. It seems too obvious to require elaborate analysis that, the case having reached this posture, it became vital for the People to demonstrate that defendant’s nighttime presence in a stranger’s home was not triggered by the Pasadena but was, in truth, consistent with his lifestyle.
There was no error.
More serious is defendant’s contention that the trial court committed error in refusing to request instructions on trespass.3
He first claims that, in spite of weighty authority to the contrary (e.g., People v. Pendleton (1979) 25 Cal.3d 371, 382 [158 Cal.Rptr. 343, 599 P.2d 649]; People v. Yoder (1979) 100 Cal.App.3d 333, 339-340 [161 Cal.Rptr. 35]) trespass is a necessarily included offense in the charge of burglary. His argument that the cited precedents and those on which they rely are wrong, is unconvincing.
In addition, however, defendant relies on the rule which had its genesis in People v. Collins (1960) 54 Cal.2d 57, 59-60. [4 Cal.Rptr. 158, [44]*44351 P.2d 326]. There the Supreme Court upheld a conviction for what was then known as statutory rape, although the information had charged forcible rape. The basis for the affirmance was that the age of the prosecutrix had been proved at the preliminary hearing. Therefore, the defendant had not been misled in preparing this defense. Further, the Supreme Court pointed out that statutory rape and forcible rape were both violations of the same Penal Code section which merely “the different circumstances under which an act of intercourse constitutes the crime of rape.” This last consideration was for many years thought to be a limitation on the Collins doctrine. (People v. Leech (1965) 232 Cal.App.2d 397, 399-400 [42 Cal.Rptr. 745]; see also People v. Tatem (1976) 62 Cal.App.3d 655, 658 [133 Cal.Rptr. 265]; People v. Ramos (1972) 25 Cal.App.3d 529, 537, fn. 4 [101 Cal.Rptr. 230].) However, in People v. Cole (1979) 94 Cal.App.3d 854, 863 [155 Cal.Rptr 892], the court, in affirming a conviction of assault with a deadly weapon when the defendant had been charged with assault with intent to commit murder, held that “narrow interpretation accorded to the Collins decision by Leech and its progeny ignores the underlying reasoning of the Collins case and exalts form over substance.”4 Thus, although assault with a deadly weapon was not a lesser included offense in the crime of assault with intent to commit murder, the conviction was upheld under the Collins” doctrine because “the evidence at the preliminary hearing left no doubt that the assault with which defendant was charged involved the use of a deadly weapon.” (Id., p. 863, Italics added.) The Cole decision has been generally accepted. (In re Walter S. (1980) 105 Cal.App.3d 475, 481 [164 Cal.Rptr. 442]; In re Beverly H. (1980) 103 Cal.App.3d 1, 7 [162 Cal.Rptr. 768]; People v. Muis (1980) 102 Cal.App.3d 206, 212 [163 Cal.Rptr. 791].)
People v. Muis, supra, is particularly in point since it involved the of a conviction for trespass on a charge of burglary. The court [45]*45held that the requirement that the defendant not be misled in preparing his defense was deemed satisfied by the fact that “the transcript of taken at the preliminary hearing left no doubt that the entry was nonconsensual.” (Id., p. 212. Italics added.)
It is obvious that, rightly or wrongly, we have come a long way since Collins.5
Nevertheless, as far as the claim of error in this case is concerned, we feel bound to hold that defendant did not adequately support his request for a trespass instruction. He merely pointed out that trespass was “an offense shown by the evidence.” That, of course, is quite insufficient. We know of no case which entitles a defendant to instructions on assorted misdemeanors revealed by the evidence at the trial.6
From the point of view of the application of the Collins’ doctrine, the critical question would have been whether the evidence adduced at the preliminary hearing revealed a nonconsensual entry. We have, on our own motion, augmented the record with the transcript of that hearing and do find that Rubin was, at one point, asked: “Did anyone have to remove property from your home or enter your home?” He answered: “No.” This, however, was never brought to the attention of the trial court, which, therefore, was not given any legally sufficient reason to instruct on trespass.
Affirmed.
Ashby, J., and Hastings, J., concurred.