P. v. Quamme

Filed 8/28/18 P. v. Quamme CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA QUAMME,
Defendant and Appellant.
F075753
(Super. Ct. No. BF166710A)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P.J., Franson, J. and Meehan, J.

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A jury convicted appellant Joshua Quamme of residential burglary (Pen. Code,
§§ 459, 460, subd. (a))1 and found true an allegation that someone other than an
accomplice was present during the burglary (§ 667.5, subd. (c)(21)). In a separate
proceeding, the court found true a serious felony enhancement (§ 667, subd. (a)) and
allegations that Quamme had a prior conviction within the meaning of the “Three
Strikes” law (§ 667, subds. (b)-(i)).
On appeal, Quamme contends the court prejudicially erred by its failure to instruct
on a lesser related offense. We affirm.
FACTS
The Prosecution Case
Edith Goze testified that on December 28, 2016, at approximately 8:15 a.m., she
was at her house in Kern County when her dogs began barking. Goze answered a knock
on the door and found Quamme, whom she did not know, standing outside. Quamme
asked if Juan lived there and Goze replied that no one by that name did. Quamme
continued talking to her for another minute during which she reiterated that no one named
Juan lived there before she closed the door and locked it.
After Goze went to the den and sat down, one of her dogs began growling. Goze
returned to the front door, opened it, and saw her husband’s adult tricycle in the
driveway.2 Goze ran through the house and told her son, Nathaniel, that Quamme was
still there. Nathaniel told Goze to call 911 as he walked outside.
Nathaniel testified he was sleeping in his bedroom, which shares a wall with the
garage, when he was awakened by a knock at the front door and the dogs barking. After
he heard his mother speak to a man and shut the door, Nathaniel heard noises that
1 All statutory references are to the Penal Code.
2 The tricycle had not been there when she spoke with Quamme.

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sounded like someone walking in and out of the garage dragging a cardboard box. When
his mother told him the man was still there, Nathaniel got up, walked outside through the
front door and saw the green door to the garage open3 and his father’s tricycle outside the
garage. He also saw items stacked on top of a freezer in the garage near the green door
and in the doorway. Although Nathaniel did not yet see anyone in the garage, he heard
someone moving things and rummaging through his father’s tools.4
Nathaniel called the police and went to retrieve a handgun. Nathaniel then walked
into the garage and pointed the gun at Quamme, who was kneeling as he looked through
some tools. Quamme looked up and said, “Oh shit. Oh shit. I’m sorry. I’m sorry.”
Nathaniel asked him what he was doing there and Quamme responded that he was
looking for Juan. Quamme began talking to Nathaniel as he walked toward him, causing
Nathaniel to walk backwards. When Quamme had backed Nathaniel out of the garage,
Kern County Sheriff’s Deputy Scott Wall arrived and took Quamme into custody.
Nathaniel then noticed that next to the freezer, someone had placed trash bags containing
items that had been in the back of the garage. The deputy searched Quamme and found a
soft sunglasses pouch that belonged to Nathaniel’s father.
Deputy Wall testified that he believed Quamme was too intoxicated to care for his
own safety and that when questioned, Quamme had difficulty focusing on the questions.
The bag found on Quamme contained $9.85 in coins.
Richard Smith testified that in 2008, while a police detective for Ridgecrest, he
investigated a residential burglary that occurred sometime between November 1, 2008,
3 However, a large white door through which cars enter the garage was closed.
4 Earlier that morning, between 2:00 a.m. and 2:30 a.m., when Nathaniel went into
the garage, he did not see anything out of place and his father’s tricycle was in the
garage.

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and November 4, 2008. During an interview with Quamme, he stated he had gone to the
burglarized house to see if a man named Joe was home. Upon finding out he was not
there, Quamme went into the garage and took an electric guitar. The parties stipulated
that on November 20, 2008, Quamme pled no contest to first degree residential burglary.
The Defense Case
Quamme testified that in the days prior to entering the garage he had been using
methamphetamine and heroin daily and the day before, he used methadone and
afterwards injected heroin. The night he entered the garage he thought people on
bicycles were chasing him. Although he was not sure if the people were real or
hallucinations, he walked up the Gozes’ driveway to hide behind two parked cars and
saw the garage door open. Quamme entered the garage to relax and calm down. His
friend Juan eventually showed up and told him to go ahead and stay there, and that Juan
would try to get him a ride in the morning. While in the garage, Quamme rummaged
through things. Once he noticed the sun had come up, he walked to the front door and
knocked because he was looking for Juan. After speaking with a woman, he went back in
the garage and was getting ready to leave when her son confronted him. Quamme denied
that he intended to steal anything.
DISCUSSION
Prior to instructing the jury, the court asked the parties if there was a request for
instructions on any lesser included offenses. Defense counsel requested an instruction on
trespass and the prosecutor stated that he did not object. The court, however, denied the
request because trespass is not a lesser included offense of burglary. Quamme contends
that based on the evidence, the jury could have found he did not have the requisite intent
to commit burglary and that he committed only a trespass, a lesser related offense of
burglary. Thus, according to Quamme, the court erred by its failure to instruct on
trespass. Quamme further contends that because the failure to instruct on trespass
deprived the jury of the opportunity to find him guilty of the lesser offense of trespass, it

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is reasonably probable he would have received a more favorable result if the instruction
had been given. There is no merit to these contentions.
“ ‘It is the “court’s duty to instruct the jury not only on the crime with which the
defendant is charged, but also on any lesser offense that is both included in the offense
charged and shown by the evidence to have been committed.” [Citation.]’ [Citations.]
As we recently reiterated, however, trespass is a lesser related offense, not a lesser
included offense, of burglary. [Citations.] ‘[T]here is no federal constitutional right of a
defendant to compel the giving of lesser-related-offense instructions. [Citation.]’
[Citation.] Regardless of defendant’s legal and factual theories concerning how his
conduct may have constituted trespass, that potential crime nonetheless remains at most a
lesser offense related to (but not included in) the offense of burglary.” (People v. Foster
(2010) 50 Cal.4th 1301, 1343-1344.) “As there is no requirement that the trial court give
an uncharged lesser related offense instruction even if the defendant and prosecutor agree
to have it given, [a] trial court’s refusal to give the instruction [does] not constitute error.”
(People v. Hall (2011) 200 Cal.App.4th 778, 783.) Thus, even though the prosecutor did
not object to the court instructing the jury on trespass, the court did not err by its failure
to instruct the jury on that offense.
In any event, the failure to give the instruction was harmless. “[T]he trial court’s
failure to instruct on necessarily included offenses is reviewed for prejudice under the
Watson[5] standard.” (People v. Hicks (2017) 4 Cal.5th 203, 215 (Hicks).) It follows that
the failure to instruct on a lesser related offense, if such were error, should likewise be
reviewed for prejudice under the Watson standard. (Cf. Hicks, at p. 215.) “Accordingly,
in evaluating prejudice, the relevant inquiry is whether it is ‘reasonably probable’
defendant would have obtained a more favorable result had the trial court given the
instruction [at issue here].” (Ibid.)
5 People v. Watson (1956) 46 Cal.2d 818, 836.

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In order to convict Quamme of first degree burglary, the prosecutor had to prove
the following elements: “(1) entry into a structure currently being used for dwelling
purposes and (2) with the intent to commit a theft or a felony.” (People v. Sample (2011)
200 Cal.App.4th 1253, 1261.)
The only issue here was whether Quamme had the requisite intent when he entered
the Gozes’ garage. Quamme had rummaged through many of the items in the garage and
was still doing so when Nathaniel first saw him there. He also removed an adult tricycle
from the garage, filled two trash bags with items from the garage and placed them next to
a freezer located in there, and stacked other items on the freezer and in the garage’s
doorway. During a postarrest search of Quamme, Deputy Wall found a sunglasses
pouch, containing $9.85 in coins, that belonged to Nathaniel’s father. Further, the
prosecutor presented evidence that in 2008 Quamme burglarized a friend’s garage and
stole an electric guitar and he was impeached with his felony conviction that was based
on that incident. Thus, the record contains compelling evidence that supports the jury’s
finding that he entered the garage with the intent to steal. Moreover, because of the
strength of the evidence that Quamme entered the garage with larcenous intent, it is not
reasonably probable the jury would not have convicted Quamme of first degree burglary
if the jury had been instructed on trespass.
DISPOSITION
The judgment is affirmed.

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