(Super. Ct. Nos. 09F08165, 09F01377)
The opinion of the court was delivered by: Raye , P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Dante Prentice of two residential burglaries, evading a peace officer, evading a peace officer by driving in the opposite direction of traffic, and assault with a deadly weapon on a peace officer. On appeal, he claims the trial court erred by failing to instruct sua sponte on the lesser related offense of accessory after the fact and in not staying the sentence for evading a peace officer by driving in the opposite direction of traffic. The People concede that the sentence should have been stayed.
We accept the People's concession and shall modify the judgment to stay execution of sentence for evading a peace officer by driving in the opposite direction of traffic. We conclude the trial court had no sua sponte duty to instruct on an uncharged, lesser related offense; indeed, the court could not give such an instruction without the consent of the prosecutor. We shall affirm the judgment as modified.
BACKGROUND The Estacio Residence Burglaries
Pamela Estacio had been acquainted with defendant for seven or eight years at the time of trial. Their relationship was close and affectionate. He referred to her as "Grandma." Over the years, defendant had visited Estacio at her residence numerous times; the most recent visit had been approximately five days prior to the first burglary of her home.
At around 10:00 a.m. on October 28, 2009, Estacio saw defendant walking down the street near her home. Estacio pulled over to say hello and to ask defendant when he would visit her again. When defendant asked Estacio what time she would return home, she replied that she would be back at noon. Defendant never visited Estacio, and she did not see him again until the first day of trial.
Estacio returned home within 15 minutes, well before the noon hour, to find that someone had broken the window to her grandson's bedroom and stolen a video game console and its attachments, video games, athletic hats, and a small amount of jewelry. The burglar had broken the sliding pane of a two-pane window, creating room to reach through the break in the glass and bend, then remove, the interior window lock.
On November 3, 2009, Estacio left her home around 9:50 a.m. or 10:50 a.m. to pick up her granddaughter from school. Her house is situated in a cul-de-sac on a narrow street. As she was leaving her home, a vehicle drove up from behind and sped very quickly past her car. Because the vehicle was traveling so quickly she noticed only that it was a blue Chrysler, the people in the car were black, and there appeared to be people in the front and back seats. Estacio was away from her home for approximately 40 or 45 minutes.
Estacio returned home with her granddaughter and parked her car in the garage. She attempted to enter the house through the door between the garage and the house but found the door locked. Because she does not lock that door, she ordered her granddaughter out of the garage for her safety. Estacio entered the home, retrieved the cordless telephone, hurried back out, and called the police.
When a sheriff's deputy arrived and Estacio reentered the home, she noticed it had been burglarized again and in the same manner as the October 28, 2009, burglary. The burglar entered her granddaughter's bedroom by breaking the sliding pane of a two-pane window, reaching in, and accessing the window's interior lock to gain entry; the lock had been taken off and thrown to the ground. The burglar had stolen a box of blank checks, prescription medication, and a pack of cigarettes. As Estacio described to the deputy the car she had seen, her granddaughter said it sounded like a car defendant or his brother drove.
November 3, 2009, Burglary of the Wharry Residence
Ira Wharry did not know defendant prior to November 3, 2009. He left his home around 9:30 a.m. and returned about 11:00 a.m. to find that his home had been burglarized. The point of entry was a window in Wharry's home office. The burglar had removed the screen to a two-pane ...