B-704

Brief Bank # B-704 (Re: LIO I(A) [Determining LIO: General Rules].)

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

PEOPLE OF THE STATE OF CALIFORNIA, ) Court of Appeal

Plaintiff and Respondent, ) No. C000000

)

v. ) (San Joaquin County

) Superior Court

JOHN DOE, ) No. SCO00000)

Defendant and Appellant. )

________________________________________)

OPENING BRIEF OF APPELLANT JOHN DOE

Appeal From Final Judgment of Conviction

Superior Court, County of San Joaquin

The Honorable Thomas M. Harrington

Presiding Judge

S. Michelle May

State Bar No. 111072

1800 Market St. # 38

San Francisco, CA 94102

(415) 585-5907

Attorney for John Doe

By appointment of the Court of Appeal

(Central California Appellate Program – Independent Case)

ARGUMENT

I. The Trial Court Erred In Failing To Give Sua Sponte Instructions On Unauthorized Entry And Loitering, Which Though Not Statutorily Lesser Included Offenses Were In This Case Lesser Included Offenses Based On The Accusatory Pleadings

A. Unauthorized Entry (Penal Code Section 602.5) Is A Lesser Included Offense Within The Burglary As Charged In The Information

Appellant recognizes that based on the statutory language alone, the crime of unauthorized entry (Pen. Code § 602.5) is not a lesser included offense of burglary. (People v. Pendleton (1979) 25 Cal.3d 371, 381-382 [disapproved on another ground in People v. Geiger (1984) 35 Cal.3d 510, 518-520]; People v. Wetmore (1978) 22 Cal.3d 318, 327, fn. 8.) At the same time, a lesser included offense need not be based solely on statutory language; it can also be based on the accusatory pleadings of a particular case. (Post.)

The latter is this case. On this accusatory pleading, unauthorized entry was in fact a lesser included offense within the charged crime of residential burglary. The trial court erred prejudicially in failing to give the lesser included offense instruction sua sponte. The judgment should be reversed.

Our Supreme Court has held that a court has Jurisdiction to convict a defendant of the charged offense or a lesser included offense, but no other, because “”‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” (Citation.)’ (People v. West (1970) 3 Cal.3d 595, 612.)” (People v. Lohbauer (1981) 29 Cal.3d 364, 368.)

As a result, when by statutory definition, an offense cannot be committed without simultaneously committing a lesser offense, the lesser offense is a “lesser included offense.” (Lohbauer, supra, 29 Cal.3d at p. 369.) But in addition, when an offense is within the offense as specifically charmed in the accusatory pleading, although its elements are not necessarily within those of the statutory definition of the crime, it is also a “lesser included offense.” (People v. Marshall (1957) 48 Cal.2d 394, 399, 405; People v. St. Martin (1970) 1 Cal.3d 524, 536.)

In other words, when the language of the accusatory pleading encompasses all the elements of the lesser offense, the lesser offense is included within the charged one. (People v. Wolcott (1983) 34 Cal.3d 92, 98.) In that situation, the accusatory pleading itself puts the defendant on notice that he should be prepared to defend against evidence showing the elements of the lesser crime within the one charged in the accusatory pleading. (People v. Marshall, supra, 48 Cal.2d at p. 405.)

Instructions on lesser included offenses are required sua sponte when the evidence raises a question as to whether all of the elements of the charged offense are present. (People v. Sedeno (1974) 10 Cal.3d 703, 715 [disapproved on another point in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12]; People v. St. Martin, supra, I Cal.3d at p. 533.) The necessity for instructions on lesser included offenses is based in the defendant’s constitutional night to have the jury determine every material issue presented by the evidence. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) It serves the policy of preventing the jury from being, faced with an all-ornothing choice where the People have no legitimate interest in obtaining a greater conviction than that established by the evidence, and the defendant has no right to complete acquittal since the evidence establishes he committed the lesser offense. (People v. Sedeno, supra, 10 Cal.3d at p. 716; People v. St. Martin, supra, I Cal.3d at p. 533.)

The sua sponte instructional requirement applies also to lesser included offenses within the accusatory pleading, when the evidence raises the question of whether all elements of the charged offense are present. (People v. Barrick (1982) 33 Cal.3d 115, 133-135; People v. Scheidt (1991) 231 Cal.App.3d 162, 166.) Thus, when commission of a lesser offense does not necessarily show specific intent to commit a greater offense (such as where evidence of intent is merely circumstantial and lack of intent as well as intent could be inferred by the jury), a lesser offense instruction is required. (People v. Barrick, supra, 33 Cal.3d at p. 135; People v. Ivans (1992) 2 Cal.App.4th 1654, 1664-1665; People v. Saldana (1984) 157 Cal.App.3d 443, 456, 457.)

In this case, the relevant charging language in the information is (emphasis added):

On or about 6/2/93 the crime of RESIDENTIAL BURGLARY . . . was committed by JOHN DOE, who at the time and place last aforesaid, did willfully and unlawfully enter an inhabited dwelling house and inhabited portion of a building occupied by Ms. I, with the intent to .commit-larceny and any FELONY. . . .

The crime of unauthorized entry, defined by Penal Code section 602.5, is:

Every person other than a public officer or employee acting within the course and scope of his employment in performance of a duty imposed by law, who enters or remains in any noncommercial dwelling, house, apartment, or other such place without consent of the owner, his agent, or the person in lawful possession thereof, is guilty of a misdemeanor.

A simple comparison of the two shows clearly that the lancuace of the accusatory pleading not only charged a burglary, it also charged an unauthorized entry. The information alleged that appellant unlawfully entered a dwelling house. That is the crime of unauthorized entry. The criterion for a lesser included offense within the accusatory pleading is satisfied. [Footnote 1]

It is the word “unlawfully,” on top of the allegation of entry, which provided notice to appellant under the principles of Marshall that the prosecution would seek to prove an unauthorized entry. Indeed, appellant can’t imagine any clearer form of notice: He was charged with unlawfully entering a dwelling house with specified intent, which was notice the prosecution would seek to prove unauthorized entry into a dwelling house. One can hardly argue that an unauthorized entry would be “lawful,” since section 602.5 says it is not. Under these accusatory pleadings, unauthorized entry was a lesser included offense within the offense actually charged.

By contrast, in People v. Lohbauer, supra, the defendant was not charged (as he was here) with having “unlawfully entered” a dwelling; he was merely charged with having, “entered” a dwelling. (Id., 29 Cal.3d at p. 368; accord People v. Lewis (1961) 191 Cal.App.2d 754, 755.)

That allegation merely tracked the statutory language of section 459, and as discussed above, based on the “statutory language” test unauthorized entry is not a lesser included offense of burglary. (See, e.g., People v. Anderson (1975) 15 Cal.3d 806, 809 [Court uses “statutory language” test when accusatory pleading couched in terms of statutory definition].) Lohbauer reached the correct result, but it is not this case.

Instead, in this case, the information did not track the statutory language. The allegation of unlawful entry in the information goes beyond the statutory offense of burglary, because the crime of burglary requires only that a person “enter[]” a home [section 459, first sentence); it does not require that the entry itself be unlawful. Caselaw is to the same effect. “Even if we assume that defendant could properly enter the house for a lawful purpose . . . such an entry still constitutes burglary if accomplished with the intent to commit a [felony] within it.” (People v. Sears (1965) 62 Cal.3d 737, 746.) When a person who has permission to enter a residence does so on a specific occasion with intent to commit a theft therein, his entry may not be unlawful, but he has still committed burglary. (In re Andrew I. (1991) 230 Cal.App.3d 572, 578-579, fn. 1.)

Thus, unlike Lohbauer, the information in this case did charge an unlawful entry with the specified intent to commit larceny or a felony. An unlawful entry was a part of the information, and was included within the offense actually charged.

In People v. Wetmore, supra, our Supreme Court recognized that while unauthorized entry is not a lesser included offense of burglary by statutory definition, an information could charge a burglary so as also to charge unauthorized entry as a lesser offense. (Id. at p. 327, fn. 8.) That is this case. “[A] trespass is involved in a burglary in the sense that there is an entry which is an invasion of the possession of property of another without his invitation or consent. . . .” (People v. Lewis, supra, 191 Cal.App.2d at p. 758.) Unlike Lewis, however, consideration here is not limited to the statutory law; consideration also includes the accusatory pleading. This accusatory pleading, included an accusation of unauthorized entry.

B. The Trial Court Committed Reversible Error In Failing To Give The Lesser Offense Instruction On Unauthorized Entry, Because The Issue Of Intent Was Not Necessarily Decided Under Other Instructions

As discussed above, a lesser included offense instruction is required when the jury could find that not all the elements of the greater offense have been established. (People v. Sedeno, supra.) That includes cases such as this one where the only evidence of intent is circumstantial, and the evidence does not necessarily lead to a conclusion that the defendant’s intent was that of the greater offense. (People v. Barrick, supra,; People v. Ivans, supra; People v. Saldana, supra.) Thus, for example, when a defendant took a car but the evidence was inconclusive as to whether he intended to deprive the owner permanently of that car or merely to use or operate it, the trial court erred in refusing to give an instruction on joyriding, a lesser included offense of that charged in the accusatory pleading. (People v. , supra, 33 Cal.3d at p. 135; People v. Ivans, supra, 2 Cal.App.4th at pp. 1664-1665.)

That is so here. Assuming for this Part it was appellant who was the intruder, the evidence is inconclusive that appellant intended to take anything, or commit any felony inside the apartment. There is no evidence Ms. I or Mr. K knew Mr. Doe, and no evidence of motive for him to commit a non-theft felony against them. Absence of motive for committing a felony would be evidence of absence of intent to commit the felony. (People v. Gonzales (1948) 87 Cal.App.2d 867, 877.)

As for theft, the entry through a window would certainly be sufficient to establish intent to steal, but it wouldn’t necessarily establish such intent. That is particularly so because nothing was taken; indeed, nothing was even disturbed except the lampshade, table and bed. (RT 236.) In that circumstance, a reasonable jury could also conclude an intruder never intended to take anything, in the first place. (Accord People v. Geiger (1984) 35 Cal.3d 510, 53j2; People v. Nible (1988) 200 Cal.App.3d 838, 850.) (Obviously, the jury could draw the opposite conclusion as well, but that does not eliminate the necessity of a lesser included offense instruction which would allow the jury to find either possibility.)

Since the evidence would not necessarily establish the greater offense and a reasonable jury could find the lesser one, the lesser offense instruction should have been given to permit the jury to make that factual determination. “Our courts are not gambling halls but forums for the discovery of truth.” (People v. St. Martin, supra, 1 Cal.3d at p. 53.)

Furthermore, since this issue involves a required lesser included offense instruction, it doesn’t matter that appellant’s trial defense was that he wasn’t guilty of anything, and that appellant didn’t proffer a defense of “guilty but I didn’t intend to take anything.” It is error not to give a lesser included offense instruction sua sponte when the evidence permits the jury to find either the greater or lesser offense, even when the lesser offense instruction is inconsistent with the defense theory of the case. (People v. Sedeno, supra, 10 Cal.3d at p. 717, fn. 7; People v. Eilers (1991) 231 Cal.App.3d 288, 294-295; People v. Saldana, supra, 157 Cal.App.3d at p. 456, fn. 3.) The only exception is the doctrine of “invited error,” where the defense explicitly states it doesn’t want the instruction for a tactical reason expressed in the record; that would be a waiver of the issue on appeal. (People v. Wickersham (1982) 32 Cal.3d 307, 330-335.) However, mere silence isn’t “invited error.” (Id. at pp. 334-335.)

Here, the defense didn’t say it didn’t want the lesser included offense instruction, and no tactical reason appears in the record either. Thus, there is no “invited error,” the rule requiring instruction on lesser included offenses applies, and the trial court erred in not giving one. The correct legal result in this case turns on the use of a single word in the accusatory pleading,. This has ample precedent, however. The same type of reversible error has been committed because of the use of the word “and” rather than “or” in the accusatory pleading. (People v. Barrick, supra, 33 Cal.3d at p. 135; People v. Ivans, supra, 2 Cal.App.4th at pp. 16631665.) All that matters is that the lesser offense be included in the language of the accusatory pleading, and it is here.

The failure to give a lesser included offense instruction when warranted is reversible error unless the jury necessarily have determined the factual question posed by the omitted instruction in the context of another, properly given instruction. (People v. Sedeno, supra, 10 Cal.3d at p. 721; People v. Ivans, supra, 2 Cal.App.4th at p. 1665; People v. Brew (1992) 2 Cal.App.4th 99, 105-106.) “[S]uch error cannot be cured by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have convicted the defendant of the lesser included offense.” (Sedeno, supra, 10 Cal.3d at p. 720; People v. Ramkeesoon, supra, 39 Cal.3d at p. 352.)

Here, nothing, in the actual instructions would have caused the jury to consider the issue presented by the lesser offense, whether appellant unlawfully entered Ms. I’s apartment but without intent to steal or commit a felony. Therefore, the error is reversible. (People v. Ivans, supra; People v. Brew, supra; People v. Ramkeesoon, supra.) [Footnote 2]

Thus, under Barrick, Ivans and related cases, the failure to give the lesser included offense instruction requires reversal. The judgment should be reversed for a new trial, subject to the People’s right to accept a conviction for unlawful entry, under the procedure set forth in People v. Edwards (1985) 3.9 Cal.3d 107, 118.

C. Disorderly Conduct (Penal Code Section 647, Subdivision (g)) Is Also A Lesser Included Offense Within The Burglary As Charged In The Information, And The Failure To Give That Instruction Is Reversible Error As Well

The same analysis is applicable as to the offense charged in Penal Code section 647, subdivision (g). That statute states: “Any person [w]ho loiters, prowls, or wanders upon the private property of another, at any time, without visible or lawful business with the owner or occupant thereof [is guilty of disorderly conduct].”

A person who has “unlawfully entered” onto property, by definition, has “wandered” onto the property “without . . . lawful business with the owner”; since if he had lawful business with the owner, his entry [“wandering”] onto the propertv would not be unlawful. “[P]rohibited wandering consists of movement for evil purposes.” (People v. Caylor (1970) 6 Cal.App.3d 5 1, 56.) “[Wlandering” onto [“upon”] the private property of another–with the evil (unlawful) purposes required by the statute–is the offense charged by section 647, subdivision (g). It is also charged by the information in this case alleging the defendant “unlawfully entered” onto property. Consequently, for the reasons set forth in section (A) above (see, e.g., People v. Marshall, supra), section 647, subdivision (g) is a lesser included offense within the offense charged by the accusatory pleading in this case.

Precisely the same lesser included offense instruction analysis as that in sections (A) and (B) above applies, and appellant need not take up further space with it (that he is not doing so is because there is no necessity to make this brief any longer, not because he believes the argument to be any less meritorious). Appellant incorporates sections (A) and (B) herein by reference, as applied to section 647, subdivision (g). Suffice it to say that for the same reasons as in sections (A) and (B) above, a properly instructed jury could have found the evidence did not support the greater offense but did support the lesser one. The failure to OIve the lesser included offense instruction sua sponte was thus reversible error.

Once again, the judgment should be reversed and the cause remanded for a new trial, subject to the People’s right to accept a conviction for a violation of Penal Code section 647, subdivision (g). (People v. Edwards, supra.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

PEOPLE OF THE STATE OF CALIFORNIA, ) Court of Appeal

Plaintiff and Respondent, ) No. C000000

)

v. ) (San Joaquin County

) Superior Court

JOHN DOE, ) No. SCO00000)

Defendant and Appellant )

________________________________________)

REPLY BRIEF OF APPELLANT JOHN DOE

Appeal From Final Judgment of Conviction

Superior Court, County of San Joaquin

The Honorable Thomas M. Harrington

Presiding, Judge

S. Michelle May

State Bar No. 111072

1800 Market St. # 38

San Francisco, CA 94102

(415) 585-5907

Attorney for John Doe

By appointment of the Court of Appeal

(Central California Appellate Program –

Independent Case)

ARGUMENT

A. Unauthorized Entry (Penal Code Section 602.5) Is A Lesser Included Offense Within The Burglary As Charged In The Information [Appellant’s Opening Brief, Part I(A), Pages 7-101

The parties agree that a burglary may be committed by a person who is not trespassing, i.e., who enters a building with the consent of the owner or other person in lawful possession. (AOB 10, first full paragraph; RB 10, first full paragraph.) In such a case, there is nothing unlawful about the entry itself, the person who so enters is not committing an unauthorized entry, forcible detainer, or the like. By entering, the building lawfully, but with the secret intent to commit larceny or a felony inside the building, the person commits a burglary though his entry by itself is not unlawful (i.e., he is not guilty of the offenses of unauthorized entry, forcible detainer, loitering, etc.).

That, however, is not what the information in this case alleged.

By contrast, when an information alleges a defendant “unlawfully enter[ed] an inhabited dwelling house,” it means what it says–the defendant’s entry was unlawful. Thus, when an information alleges a defendant “unlawfully enter[ed] an inhabited dwelling house . . . with the intent to commit larceny [or] any felony,” it still means what it says–(i) the defendant’s entry was unlawful, and (ii) when the defendant committed his unlawful entry, he intended to commit larceny or a felony. Thus very simply, when an information that charges burglary also alleges an unlawful entry, it does in fact allece an unlawful entry. (See AOB 9.)

That was the information in this case.

Apparently, the Attorney General confuses and conflates the basic legal principles of actus reus and mens rea. He argues that when a person enters a business with the intent to do lawful business and simultaneously to steal an item, his act of entry is necessarily unlawful. (RB 11.) The Attorney General needs to make this claim in order to have any possibility of prevailing. For if his claim is in error, then the word “unlawful” in the information adds something which is not already in section 459, and takes this case out of the general rule that unauthorized entry is not a lesser included offense of burglary based on the statutory lancuage alone. (AOB 7, first paragraph, and cases cited.)

By so arguing, the Attorney General falls to distinguish between the actus reus of burglary, an entry, and the mens rea, the intent to commit larceny or a felony inside. The actus reus-the entry–need not itself be unlawful for there to be a burglary. The consequence of illegality only ensues when the actus reus, whether or not itself lawful, is united with a criminal mens rea. (Pen. Code § 20.) Thus, it is entry–lawful or unlawful–united with the intent to steal or commit a felony, that constitutes burglary.

However, the fact that a union of act and criminal intent is unlawful, does not mean the act itself is unlawful. It only means what section 20 days, that the combination of the act and the criminal mens rea is unlawful; the act itself, however, may still have been a lawful one. (Eg., People v. Austin (1994) 23 Cal.App.4th 1596, 1607 [lawful act of furnishing lawful goods, combined with criminal mens rea of furthering illegal use of goods, constitutes conspiracy]; People v. Riley (1963) 217 Cal.App.2d 11, 17 [lawful possession of property, combined with criminal mens rea of intent to convert property fraudulently, constitutes embezzlement]; People v. Orr (1994) 22 Cal.App.4th 780, 784 [lawful act, combined with criminal mens rea of criminal negligence, constitutes involuntary manslaughter].) In like manner here, the combination of the lawful act of entering a building by invitation, with the criminal mens rea of intent to steal or commit a felony inside the building, is a burglary; however, the act of entry itself may still have been lawful.

The Attorney General’s argument thus founders. An allegation of entry [act] must be combined with an alleged intent to steal inside (criminal intent] for the statutory offense of burglary to be charged (Pen. Code § 20), but to charge burglary, the act itself need not be unlawful. By contrast, the allegation in this information of unlawful entry [act] with the intent to steal inside [criminal intent] is also the offense of burglary, but the act in this information must be unlawful. The analysis in the Appellant’s Opening Brief is thus correct; unauthorized entry is a lesser included offense of burglary based on unlawful entry, as charged in the information.

The precise test of People v. Marshall (1957) 48 Cal.2d 394 (as successfully argued there by the People), is “that a lesser offense is ‘necessarily included’ if it is within the offense specifically charged in the accusatory pleading, even thouch its elements are not necessarily within those of the statutory definition of the crime. . . . [T]he yardstick for measuring offenses ‘necessarily included’ in a charge . . . is the specific language of the accusatory pleading . . . .” (Id., 48 Cal.2d at pp. 398, 401 [emphasis added]; see also id. at p. 405.) Thus, one looks to the precise words used in the information; if they charge a lesser offense as well as a greater, then the lesser offense is necessarily included.

In many situations, that will be what the prosecution wants. The prosecution may deliberately use specific language in the information, so as to ensure the jury will also have the option of conviction on a lesser included offense when evidence of the greater is questionable, thus maximizing the likelihood of some conviction when criminal conviction is warranted. In such a case, if the prosecution falls to utilize Marshall and does not charge in specific language including the lesser offense, the defendant can block consideration of the lesser offense by objecting to what would then be lesser related offense instructions. (People v. Toro (1989) 47 Cal.3d 966, 973; People v. Daly (1992) 8 Cal.App.4th 47, 58.) By contrast, if the prosecution charges the greater offense in language that includes the lesser, the jury will have a full range of options, and the defendant cannot block the lesser. (See People v. Barton (1995) 12 Cal.4th 186.)

That was exactly the type of prosecutorial choice our Supreme Court anticipated, and sought to ensure, in Marshall:

At the trial the prosecutor was able to produce ample evidence that the automobile was taken without the victim’s consent, but the evidence concerning the precise circumstances of its taking was somewhat uncertain. It appears that the prosecutor in the diligent and enlightened performance of his trust anticipated that the evidence at the trial might develop in this fashion, and that he was well advised to draw the information in the manner in which it is worded.

(People v. Marshall, supra, 48 Cal.2d at pp. 405-406.)

Of course, a lesser included offense may be charged under Marshall inadvertently, as well as by careful pleading. Perhaps the word “unlawfully” in this information was just excessively flowery language, rather than reflective of an intent to allege what the information did allege. But that does not chancre the required result. The test is not whether a court can divine whether or not the prosecutor was drawing a charging document with care and intentionally using precise language. Rather, it is whether the specific language of the accusatory pleading charges both a lesser offense as well as a greater offense.

Even as simple a difference as using the word “and” instead of “or”–in most cases an error of inadvertence–can create a lesser included offense within the language of the accusatory pleading, where one would otherwise have existed. (People v. Barrick (1982) 33 Cal.3d 115, 135; People v. Ivans (1992) 2 Cal.App.4th 1654, 1664-1665.) The People have total control over the content of the information. They should be bound by the plain meaning of its contents.

B. The Trial Court Committed Reversible Error In Failing To Give The Lesser Offense Instruction On Unauthorized Entry, Because The Issue Of Intent Was Not Necessarilv Decided Under Other Instructions [Appellant’s Openiniz Brief, Part l(B), Pages 10-131

The People do not contest appellant’s showing that if section 602.5 is a lesser included offense within the violation of section 459 charged in the accusatory pleading, the evidence in this case raised the question of whether all elements of the greater offense were present, and thus a lesser offense instruction was required sua sponte. (See AOB 8, 10-12.)

Accordingly, on these grounds alone, the judgment should be reversed for failure to give the required sua sponto instruction under section 602.5, subject to the People’s right to accept a conviction under that statute.

Respondent’s discussion of section 647, subdivision (c,) has similar deficiencies to those noted above. However, it also exposes the infirmities of his discussion of unlawful entry (section 602.5) in section (B) above.

Respondent argues in part that disorderly conduct was not a lesser included offense of the burglary alleged because “the act necessary for burglary, as proscribed by statute . . . is entry. Nothing further need occur.” (RB 11.) Appellant agrees, and that is one reason why the argument in section (B) above is correct. (Ante, p. ?) Yet in the same breath, respondent argues that all burglaries involve unlawful entries, just different types of unlawful entries. (RB 10, full paragraph.) Which is it? Respondent is unable to maintain a consistent argument on this score.

Whatever the statutory elements of the crime of burglary may be, the People’s information alleged in this that case appellant “unlawfully entered” onto property. By allegedly entering, onto the property “unlawfully,” thereby encasing in “movement for evil purposes” (People v. Caylor (1970) 6 Cal.App.3d 51, 56, cited in AOB 13), appellant was charged in the information with a violation of section 647, subdivision (g) as well as section 459. The information could have been a lesser included offense, but this one was not under the rule of People v. Marshall, supra. [Footnote 3]

Consequently, the judgment should be reversed, subject to the People’s night to accept a conviction for a violation of section 647, subdivision (g).

FOOTNOTES:

Footnote 1: In like manner, the language “did … unlawfully enter” in the accusatory pleading provides sufficient notice to prove the element of section 602.5 that the defendant be someone “other than a public officer or employee acting within the course and scope of his employment in performance of a duty imposed by law.” Obviously, a person who unlawfully enters a dwelling house has to be someone other than a public officer or employee performing a duty imposed by law, since someone performing a duty imposed by law doesn’t act unlawfully. Since that should be self-evident, it is not discussed further.

Footnote 2: Although it is unnecessary to reach any issues of federal law based on the above, if this Court were to reject the state-law argument, in the alternative it should still accept that the failure to give the instruction was reversible error as a matter of federal constitutional law. First, it is a violation of due process of law to give the jury an improper all-or-nothing choice in a situation where the evidence would warrant otherwise. (See Keeble v. United States (1973) 412 U.S. 205, 212 [93 S.Ct. 1993, 36 L.Ed.2d 844], cited in People v. Ramkeesoon, supra, 39 Cal.3d at p. 351.) Second, to fail to give an instruction permitting, the jury to hear and determine every material issue presented by the evidence violates a legitimate expectation created by our Supreme Court in Sedeno and numerous other cases that the jury will in fact hear and determine every such material issue, which is a violation of the guarantee of due process of law. (See Walker v. Deeds (9th Cir. 1995) 50 F.3d 670, 672-67′); Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300.) Failure to give a required instruction is reversible error under federal constitutional law when it is not certain the matter presented by the omitted instruction has been decided under other instructions (Yates v. Evatt (1991) 500 U.S. 391, 404, 406, 408-409 [III S.Ct. 1884, 114 L.Ed.2d 432]; Carella v. California (1989) 491 U.S. 263, 273 [109 S.Ct. 2419, 105 L.Ed.2d 218] [conc. opn. of Scalia, J.]), and that is so here for reasons already discussed. This analysis also applies to section (C), infra.

Footnote 3: Respondent’s footnote 5 (RB 12) is irrelevant to this discussion, and it is of no moment in any event, because entry onto property by means of a person inserting an instrument or tool is a constructive entry by that person. (See, e.g, People v. Woods (1992) 8 Cal.App.4th 1570, 15821583 [person guilty of crime when he commits crime not only with his own hands but also with other agencies such as instruments].)