Opinion Bank # O-151
NOTE: The text of the footnotes appears at the end of the document.
CERTIFIED FOR PARTIAL PUBLICATION [Footnote 1]
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
Plaintiff and Respondent, D008658
v. (Super. Ct. No. CR93206)
TIMOTHY JOSEPH O’KEEFE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Hayes, Judge. Affirmed in part, reversed in part and remanded.
Paul J. Spiegelman, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Harley D. Mayfield, Senior Assistant Attorney General, and John T. Swan, Deputy Attorney General, for Plaintiff and Respondent.
In a 37-count information the People charged Timothy Joseph O’keefe with assault to commit rape, six counts of burglary, methamphetamine possession, three counts of prowling, and twenty-six counts of making obscene telephone calls. The jury 175 Cal.App.3d 1.) Accordingly, we cannot infer that this storage place referred to by Leasa was in an “inhabited dwelling.” On this record the “storage” place may well have been in a building not “inhabited.” Because the People failed to prove that the burglary took place within an “inhabited dwelling,” an element of the crime, we reduce O’Keefe’s conviction on count 5 to second degree burglary (§ 1260).
A. Jury instructions on Count 2 Burglary
In the information the People charged O’Keefe in count 2 withresidential burglary with intent to commit rape — section 459. [Footnote 2] However, the court instructed the jury, “If you unanimously agree that defendant made an entry with the specific intent to steal or to commit rape, a felony, you should find the defendant guilty, and you are not required to agree on which particular crime the defendant intended to commit when he entered.” (Emphasis added.)
O’Keefe contends his due process right to be notified of the charges against him was denied by the use of jury instructions which allowed the jury to find him guilty of burglary with intent to commit theft when the crime charged in the information was burglary with intent to commit rape. In resolving this issue, it first must be determined whether these jury instructions were erroneous.
Due process requires that an accused be advised of the charges against him so he may have a reasonable opportunity to prepare and present his defense. (In re Oliver (1948) 333 U.S. 257, 273; (Cooke v. United States (1925) 267 U.S. 517, 536-537.) A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at trial to show that he had committed that offense. [Citations.]” (In re Hess (1955) 45 Cal.2d 171, 174-175.)
Here, the instructions on count 2 burglary stated a new charge, burglary by entry with the specific intent to steal. It would have been permissible to give these burglary instructions had the information charged O’Keefe with the intent to commit raise and theft upon entry. (See People v. Failla (1966) 64 Cal.2d 560.) However, the information only charged O’Keefe in count 2 with entry with intent to commit rape. The instructions allowed the jury to find O’Keefe guilty of burglary under count 2 with entry with intent to steal, a new charge. Thus, because the instructions brought forth a new charge of burglary not mentioned in the information under count 2, the instructions were erroneous.
Not every denial of a federally guaranteed constitutional right automatically calls for reversal of a conviction. In determining whether an error of constitutional dimension requires reversal, the harmless-error standard of Chapman v. State of California (1967) 386 U.S. 18 applies.
Applying Chapman, we conclude any prejudice resulting by use of this jury instruction was harmless beyond a reasonable doubt. The jury instructions on count 2, taken from CALJIC No. 14.59, Fifth edition 1988, [Footnote 3] did not misstate the law; instead, they were overbroad in the context of this case because when examined alone, they could misinform the jury to convict O’Keefe of count 2 burglary upon finding he entered with intent to steal. However, the effect of jury instructions should not be considered in a total vacuum. In considering whether legally accurate, but incorrect jury instructions had a prejudicial effect on the outcome of a case by misinforming the jury, it is proper to consider whether arguments made by counsel for both parties adequately informed the jury. (People v. Brown (1988) 45 Cal.3d 1247, 1255-1256; People v. Nguyen. (1988) 204 Cal.App.3d 181, 187-189.) [Footnote 4]
In closing arguments counsel for both the People and O’Keefe properly informed the jury the requisite intent for a count 2 burglary conviction was entry with intent to rape. Closing arguments on count 2 focused on whether O’Keefe entered Kendra’s room with intent to commit rape. The District Attorney began closing argument describing the requirements for burglary counts 3 through 8 as requiring a specific intent to steal upon entry. However, in making his argument on count 2, the prosecutor focused on the required intent to rape.
“Now, that fact situation also includes count 2. You see, it’s also a burglary. And when I initially described burglary it’s kind of where it ties in. Because again, at the time we have to show that he entered, he entered a building, he entered a room, we also have to show that he had a specific intent for theft, but in this case a felony. Assault with the intent to commit rape is a felony. Rape is a felony.” (Emphasis added.)
“. . . . . . . . . . . . . . . . . . . . . .
“He knew exactly who she was, where she was, what she looked like and what he wanted to do. What did he want to do? [¶] On the 14th he told her, ‘I like your body.’ On the 21st, ‘I still want your body.’ And on the 23rd, ladies and gentlemen, he assaulted her in order to take the body. That’s all there is to it. His intent is clear throughout this entire situation.”
“. . . . . . . . . . . . . . . . . . . . . . .
And you go through them count by count and make a determination on the residential burglaries as follows: Did the defendant enter the building? If you f ind that beyond a reasonable doubt, did he enter with the intent for theft. except for count 2?” (Emphasis added.)
In closing argument defense counsel also focused his argument on count 2, on intent to commit rape.
“But, basically, I believe what we’re dealing with is an individual who is the type of person who is not a rapist, He’s not a person that is the type of individual that is interested in exerting force in order to have sex.” (Emphasis added.)
“. . . . . . . . . . . . . . . . . . . . . .
“The type of activity that we are talking about, as far as Mr. O’Keefe is concerned, if these acts are to be attributed to him, they are acts that are kind of perverted acts. . . . And they are different sorts of things by nature, by character. than a rape is.” (Emphasis added.)
“. . . . . . . . . . . . . . . . . . . . . .
“. . . In count 22 it is whether or not the mind set of the individual is entering into a building with the intent to commit rape,” (Emphasis added.)
As the above statements reveal, with respect to count 2, both the defense and prosecuting attorneys focused the jury’s attention on whether O’Keefe had specific intent to rape when he entered Kendra’s room.
Pursuant to California Rules of Court, rules 976.1 and 976(b), this opinion is certified for publication with the exception of sections I, II, III. and V.
“COUNT TWO: On or about January 23, 1988, TIMOTHY JOSEPH O’KEEFE did unlawfully enter a building with intent to commit Sexual Battery, Rape, and Forcible Oral Copulation, in violationof Penal Code section 459.” (Emphasis added.)
4 CALJIC No. 14.59 provides: “If you are satisfied beyond a reasonable doubt and agree unanimously that defendant made an entry with the specific intent to steal or to commit _______, a felony, you should find the defendant guilty. You are not required to agree as to which particular crime the defendant intended to commit when [he] [she] entered.”
In People v. Brown (1988) 45 Cal.3d 1247 and People v. Nguyen (1988) 204 Cal.App.3d 181, the jury instructions were incomplete in informing the jury of the relevant law. However, in both cases the court concluded the closing arguments made by both the prosecuting and defense attorneys properly cured the deficiencies in the instructions. In this case, the jury instruction was not incomplete, but overbroad. Nevertheless, the rationale of Brown and Nguyen, that closing arguments by the attorneys for both parties can properly inform the jury of the law despite erroneous instructions, applies here because there is no possibility the jury was misinformed as to the intent required to convict O’Keefe on this count when considered with the instructions and the arguments of both counsel.