APPEAL from the Superior Court of Riverside County. H. Warren Siegel, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified. (Super.Ct.No. RIF148364)
The opinion of the court was delivered by: Richli J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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On August 27, 2008, defendant (who was homeless) entered a home in Lake Elsinore while the owner of the home and her children were visiting her sick mother. Defendant took a power drill and an extension cord from the garage. He was convicted of burglary and receiving stolen property. Defendant now contends:
1. The trial court erred by allowing the People to impeach him with a prior felony conviction that did not involve moral turpitude, and in any event it should have been excluded under Evidence Code section 352.
2. The trial court's refusal to instruct the jury with Judicial Council of California Criminal Jury Instruction (CALCRIM) No. 3403, the defense of necessity, violated his rights to due process and a fair trial.
3. The imposed sentence for receiving stolen property should have been stayed pursuant to Penal Code section 654.
4. He is entitled to additional custody credits due to an amendment to Penal Code section 4019 that became effective after he was sentenced.
We conclude there were no prejudicial trial errors. We agree that defendant's sentence for receiving stolen property should have been stayed, and we will so order. We otherwise affirm the judgment.
A Riverside County jury found defendant guilty of residential burglary (Pen. Code, § 459)*fn1 and a separate count of receiving stolen property (§ 496, subd. (a)). Defendant admitted in a bifurcated proceeding that he had served two prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced on the burglary to the low term of 2 years, plus 2 years for the prior prison term enhancements, for a total of 4 years. The sentence of 1 year 4 months on the receiving stolen property conviction was sentenced concurrent to the burglary conviction.
A. People's Case-in-Chief
On August 27, 2008, Laura Maldonado lived with her five children in a house located on Prospect Avenue in Lake Elsinore. Maldonado and her children went to stay with her mother in the two weeks prior to the above date because her mother was ill. Maldonado had come back to the house off and on during the two weeks but never stayed the night.
Defendant frequently canvassed the area around Maldonado's house looking for cans and bottles to recycle. Maldonado had seen defendant on prior occasions and had given him cans to recycle. Maldonado had even asked defendant if he could get a lawn mower and mow her lawn and promised she would pay him.
Linda Villalobos lived across the street from Maldonado. Villalobos also had seen defendant almost weekly in the neighborhood picking up cans and bottles out of the trash cans.
About 9:30 a.m., on August 27, 2008, Villalobos observed defendant walk to the fence surrounding the Maldonado's house. Villalobos was aware that Maldonado and her family had been out of town for one or two weeks. Villalobos observed defendant enter the front gate to the house and pick up some bottles and cans from the front yard.
Defendant then walked to the front of Maldonado's house, looked in the front window, and tapped on it. He said "hello" several times and then went back to the side of the house. Defendant walked behind Maldonado's house and disappeared from Villalobos's view.
Villalobos observed defendant open Maldonado's garage from the inside and prop it up with a pole. Defendant emerged from the garage carrying "some tool" and an extension cord. Defendant put the tool and extension cord in his shopping cart (which was sitting up the street from the Maldonado home) and walked away pushing the cart. Villalobos called the police.
Riverside County Sheriff's Deputy Richard Vryheid responded to the call. When he arrived, he observed defendant pushing a shopping cart away from Maldonado's home and detained him.
At that same time, Maldonado returned to her house. She noted that her garage door was propped open; she had not left it that way. Maldonado was told by neighbors that someone had broken into her house. The back door that went from the garage to the house appeared to be "kicked open," although Maldonado had locked it and the garage when she left the house.
Maldonado entered her house and found it had been ransacked. She did not notice anything missing from inside the house. A power drill and extension cord were missing from the garage.
Deputy Vryheid looked through defendant's shopping cart and found an orange power drill and extension cord. There were also bottles and cans in the cart. The power drill and extension cord were identified as being the ones taken from Maldonado's garage. Maldonado did not give defendant permission to enter her home or take the power drill and extension cord from the garage.
Maldonado admitted the front yard was littered with toys and other items. The front gate lock was broken. The grass was unmowed at the time of the incident.
Defendant testified on his own behalf. He indicated he had been homeless for 18 years. He supported himself by collecting bottles and cans for recycling. He also did yard work and other odd jobs. In order to get food, he recycled or worked with various charities in Lake Elsinore. He sometimes did not know where he would get his next meal. He had been collecting bottles and cans on Prospect Street since 1982.
Defendant had spoken with Maldonado on several occasions. On August 27, defendant thought that Maldonado had abandoned her house because the gate to the back yard was broken, and the grass had not been cut. Also, he had not seen Maldonado for "awhile."
Defendant approached the house to ask for some cans. When no one answered his knock on the door or calls into the house, he went to the side of the house and called out again. He claimed the garage was partially opened. He did not look in the windows.
Defendant saw the extension cord sticking out of the garage and grabbed it. He then saw the power drill further in the garage. He lifted up the garage door and leaned in with his arm to grab the drill. He never propped open the door. He put the items in his shopping cart.
Defendant claimed he took the items because he thought the home was abandoned and wanted to get them before somebody else picked them up. Defendant admitted that Maldonado did not give him permission to take the items out of the garage. Defendant intended to hold on to the items for a month in case someone claimed them. After that time passed, he was going to sell them.
ADMISSION OF SIMPLE POSSESSION FOR IMPEACHMENT
Defendant contends that the trial court erred by admitting his prior felony conviction suffered in 2004 for simple possession of crack cocaine, as it did not involve moral turpitude. Moreover, even if the prior was admissible for impeachment purposes, the trial court should have excluded it under Evidence Code section 352 as more prejudicial than probative. The People have replied that the evidence admitted amounted to misdemeanor conduct, lying to a police officer, and was admissible as conduct involving moral turpitude.
A. Additional Factual Background
Prior to defendant testifying, the parties addressed his impeachment with a 2004 felony conviction for simple possession of crack cocaine. The trial court noted, "[A] conviction of a felony is a basis for impeachment if it's a felony not involving moral turpitude. Basically, in my mind it becomes Evidence Code 352, a prejudice question." The trial court noted, "So in my mind, what I'd like to have addressed is whether the admission of non moral turpitude prior felony is prejudicial under the circumstances of this case, because as a felony, it is clearly admissible in my mind." Defendant disagreed that a felony conviction for ...