(Super. Ct. No. CRF101266)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Fabian Andy Sanchez appeals his conviction for first degree burglary. (Pen. Code, § 459.)*fn1 On appeal, he contends the trial court violated his due process rights and the right to effective assistance of counsel by allowing "supplemental closing argument on the prosecutor's revised theory of intent after the jury twice announced it was deadlocked on the burglary charge." We requested supplemental briefing on whether defense counsel provided ineffective assistance of counsel based on a misunderstanding of the requisite intent for burglary.
Based on defense counsel's misunderstanding of the elements of the offense with which defendant was charged, and the resulting effective concession of defendant's guilt in closing argument based on that misunderstanding, we conclude defendant was provided ineffective assistance of counsel and was prejudiced by defense counsel's deficient performance.*fn2 Accordingly, we reverse the burglary conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Shortly after the Neithercutt family arrived home on the evening of March 8, 2010, defendant walked through some bushes and into their yard. He walked into their driveway, opened the unlocked door of their truck and began rummaging through the truck. He yanked the GPS/DVD video screen off its mount, exited the truck and walked down the driveway. A few moments later, he came back up the driveway towards the garage, briefly looked in the truck then walked away from the truck again. Less than a minute later, defendant walked back up the driveway with his jacket covering his head and stepped into the garage. The garage door was open. After about 15-20 seconds, defendant exited the garage. He waved his hands at the security cameras and light. The light went off and he returned to the truck with his head still covered. Defendant looked through the truck again and took a white NETGEAR eight port router. As he left and shut the truck door, he wiped the door handle with his sleeve. His jacket remained covering his head. The Neithercutt family remained in the home, unaware of defendant's unauthorized presence.
Jeff Neithercutt discovered the theft the next morning. He had installed a security system that included cameras and motion detection lights, so he reviewed the video surveillance and saw the "whole event" had been recorded. The video showed a young Hispanic man, with a widow's peak and mustache. He was wearing a "letterman" jacket with dark colors and blue jeans. The jacket did not appear to have any identifying patches or insignias. Neithercutt reported the theft to the police and turned over the surveillance video. The truck was also processed for fingerprints. Although a latent fingerprint was found on property inside the truck, it could not be matched to either defendant or the Neithercutts.
A few nights later, the Neithercutts went out to eat dinner. They saw a young man sitting on a bicycle and immediately recognized defendant. They called the police and followed him until police arrived. Jeff then identified defendant as the man who had burglarized his truck and defendant was arrested. Defendant's home was searched incident to arrest. None of the property taken from the Nethercutts was found in defendant's home.
Defendant was charged with first degree burglary, with a special allegation that the dwelling was occupied during the commission of the burglary. (§ 667.5, subd. (c)(21).) It was also alleged defendant had previously been convicted of a serious felony. (§§ 667, subds. (a)(1), (c), (e)(1), 667.5, subd. (c), 1192.7, subd. (b); Welf. & Inst. Code, § 707, subd. (b).) He was also charged separately with a violation of probation.
Prior to the preliminary hearing, defendant was offered a plea deal to resolve both the burglary and probation violation cases. Defendant would plead to the burglary and admit the occupied dwelling and prior serious felony conviction enhancements. The People would dismiss the prior strike allegation. Defendant would be sentenced to an aggregate term of eight years and four months, consisting of a low term of two years on the burglary conviction, plus five years for the prior serious felony enhancement and 16 months on the separate probation violation. The offer was to remain open until the preliminary hearing. Defendant rejected the plea. During the preliminary hearing, defense counsel argued defendant should not be held to answer on the burglary charge, because even though the surveillance video showed him briefly entering the garage it could not be inferred he intended to steal from the garage, only that he intended to commit theft from the vehicle.
In closing argument at trial, the prosecution distinguished between the theft offense and the burglary, arguing defendant had to have the intent to steal when he entered the garage and describing the circumstances demonstrating that intent, including the fact that defendant was trying to conceal his identity throughout the video. After arguing extensively about defendant's intent to steal, the prosecutor concluded the argument about intent saying, "The defendant's sole purpose and intent on being on the victim's property that night was to steal, was to commit theft, and what [sic] that did not suddenly change when he entered the garage. [¶] The other thing to concentrate on in this particular count is that he doesn't need to actually steal anything from the garage in order for it to be considered burglary. It's just the intent that he intended to go inside to steal. [¶] So the fact that he didn't take anything from the garage is really irrelevant as to the burglary count because really what we're looking at is the intent, what was his intent when he entered."
The prosecutor also specifically argued it was defendant who committed the crimes. The prosecutor pointed out the surveillance video, defendant's matching physical characteristics and clothing, and the Neithercutts' identifications of ...