People v. Alvarado CA4/1

Filed 6/23/21 P. v. Alvarado CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077755

Plaintiff and Respondent,

v. (Super. Ct. No. SCD282881)

ISRAEL ALVARADO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Paula S. Rosenstein, Judge. Affirmed as modified.

Aurora E. Bewicke, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and
Respondent.
 I.
INTRODUCTION
Defendant Israel Alvarado appeals from a judgment entered after a
jury found him guilty of burglary, in violation of Penal Code sections 459,

460, subdivision (a), and 667.5, subdivision (c)(21).1 The trial court
sentenced Alvarado to a two-year prison term and imposed various fines and
fees.
On appeal, Alvarado raises three claims. First, Alvarado contends that
his due process rights were violated because the jury was not instructed fully,
clearly, and accurately on the element of intent that is required for a
burglary conviction. In the alternative, Alvarado claims that his trial counsel
was ineffective for “acts and omissions” that he claims contributed to this
instructional error. Second, Alvarado claims that the trial court erred by
failing to instruct on the lesser offense of unlawful entry. Finally, Alvarado
argues that the trial court’s imposition of fines and fees was improper, that
their imposition violated his due process rights, and that the abstract of
judgment must be amended to reflect that collection of the fines and fees has
been stayed.
We conclude that there was no reversible error, and that Alvarado has
not shown ineffective assistance of counsel. However, we agree that the trial
court improperly imposed a drug program fee and that the abstract of
judgment includes a clerical error. We therefore affirm the judgment as
modified.

1 All further unspecified statutory references are to the Penal Code.
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 II.
FACTUAL BACKGROUND
A. Prosecution’s Case-in-Chief
On the morning of August 15, 2019, A.C., a nonparty, banged on and
kicked the back door and windows of a duplex, angrily demanding “the keys
of the car.” A.C. was noticeably intoxicated. Alvarado and another man
accompanied her.
A.C.’s mother occupied the duplex. A.C. did not live with her mother
and did not have permission to be near her mother because her mother had a
restraining order against her. A.C. also did not have permission to use the
car keys that she was demanding, which were the keys to her brother’s car.
A.C. could not get the back door open because it was locked and
barricaded, and her mother was pushing on the door from inside to keep it
closed. A.C. directed one of the men to break a window and “go in.”
Frightened, A.C.’s mother called out to A.C. and the two men, telling
them to go away, that there were children in the home, and that she was
going to call the police. When A.C.’s mother called the police, A.C. and one of
the men ran away. Alvarado remained and attempted to pry open the door
with a metal hot plate.
When the police arrived, an officer entered the mother’s kitchen and
saw Alvarado’s arm reaching into the house through the back door. The
officer called out, “Hey!” Alvarado immediately pulled his arm out and ran
away.
Outside, other police officers set up a perimeter around Alvarado, who
was still in the backyard. They called out several times, telling Alvarado to
surrender, but he was uncooperative. Instead, Alvarado used various objects
in the backyard to attempt to construct a makeshift barricade, leading the

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officers to think that he was either mentally ill or intoxicated. Officers finally
detained Alvarado after using pepper spray.
B. Charged Offense
Alvarado was charged with burglary in the first degree, in violation of
Penal Code section 459. It was alleged that Alvarado “unlawfully enter[ed] a
building occupied by [A.C.’s mother] with the intent to commit theft . . . .”
The charge included special allegations that the burglary was of an inhabited
dwelling, within the meaning of section 460, subdivision (a); and that
someone was in the residence during the burglary, within the meaning of
section 667.5, subdivision (c)(21). The theft element was premised on an
intent to take the car keys.
C. Alvarado’s Defense
Alvarado’s defense focused on negating the specific intent requirement
for a burglary conviction.
Relying first on a voluntary intoxication defense, Alvarado argued that
he had so much methamphetamine in his system that he was unable to form
the requisite intent. In support, Alvarado presented testimony from a
forensic toxicologist who testified that the “erratic” behaviors that Alvarado
exhibited before and after his arrest were consistent with someone under the
influence of the drug. The forensic toxicologist testified that someone with
the level of methamphetamine in his system that Alvarado had was likely
hallucinating if he was talking to himself, was likely in the “crash phase” if
he was hyperactive and then lethargic, and was exhibiting physical
symptoms consistent with use of the drug, such as lack of coordination and
profuse sweating.

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 Alvarado also relied on a mistake of fact defense premised on his
purported belief that he was accompanying A.C. to her own home to retrieve
her own car keys.
III.
DISCUSSION
A. There Was No Reversible Error as to the Specific Intent Requirement for
a Burglary Conviction
Alvarado argues that reversible error occurred through a series of
errors relating to the specific intent required for burglary. His primary
contention is that the mistake of fact instruction that the trial court used to
instruct the jury was “misleading and incomplete” because it did not refer to
his purported belief that A.C. had a possessory interest in the car keys.
Alvarado claims that this omission, together with a series of related errors
that he claims the trial court, the prosecutor, and defense counsel made,
prejudiced him. Alvarado also contends that the jury was confused by
“incomplete” pattern instructions and by statements made by the prosecutor
during closing arguments. Alternatively, Alvarado argues that his trial
counsel was ineffective for “acts and omissions” that undermined his defense.
We conclude that there was no reversible error, and that Alvarado has not
shown that his counsel provided constitutionally ineffective assistance.
1. No Reversible Error as to Mistake of Fact Instruction
We turn first to Alvarado’s primary contention relating to his mistake
of fact defense. Alvarado argues that the mistake of fact instruction
(CALCRIM No. 3406) provided to the jury erroneously limited his defense to
a belief about A.C.’s possessory interest in the house. Alvarado contends
that, at a minimum, the instruction should have also referred to his
purported belief that A.C, had a possessory interest in the car keys, and that
a “better” instruction would have included language similar to CALCRIM

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No. 1863, the claim of right instruction, referencing his belief that A.C. had a
claim of right to the car keys. Alvarado argues that these omissions, as well
the related errors that he identifies on appeal, prejudiced him by depriving
him of his right to present a complete defense. We conclude that there was
not substantial evidence to support either the mistake of fact instruction or a
claim of right instruction in the first instance. Alvarado has thus not shown
any error.
a. Background
Following the close of evidence, defense counsel requested that the trial
court instruct the jury regarding mistake of fact, in support of Alvarado’s
defense that he did not have the specific intent to commit burglary because
he believed that A.C. had a right to enter the home and take the car keys.
Defense counsel claimed to have elicited testimony from A.C.’s mother that
A.C. was asking for the keys and that, on the day in question, A.C. claimed to
live at the mother’s home. The prosecutor objected, arguing that there was
not substantial evidence to support giving this instruction.
Finding that there was “some disagreement about the witnesses’
testimony” and that “the jury may hear and interpret that in a way that’s
consistent” with either party’s theory, the trial court overruled the
prosecutor’s objection and agreed to give the requested mistake of fact
instruction.
The modified instruction that defense counsel proposed based on
CALCRIM No. 3406, the pattern mistake of fact instruction, provided, “If you
find that the defendant mistakenly believed the apartment was [A.C.]’s
residence, he did not have the specific intent or mental state required for the
crime of burglary or attempted burglary as a lesser included offense.”
Counsel’s proposed language did not refer to the car keys.

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 b. No Evidence to Support Mistake of Fact Instruction or
Claim of Right Instruction
The mistake of fact instruction did not refer to Alvarado’s purported
belief that A.C. had a possessory interest in the car keys, and the jury was
not instructed on a claim of right defense. We conclude that there was no
error stemming from these omissions because there was no evidence to
support Alvarado’s belief that A.C. had a possessory interest in, or a claim of
right to, the car keys.
We begin with the two instructions at issue. As modified by defense
counsel, the trial court instructed the jury with the following mistake of fact
instruction, CALCRIM No. 3406:
“The defendant is not guilty of burglary or attempted burglary as a
lesser included offense if he did not have the intent or mental state
required to commit the crime because he mistakenly believed a fact.

“If the defendant’s conduct would have been lawful under the facts
as he believed them to be, he did not commit burglary or attempted
burglary as a lesser included offense.

“If you find that the defendant mistakenly believed the apartment
was [A.C.]’s residence, he did not have the specific intent or mental
state required for the crime of burglary or attempted burglary as a
lesser included offense.

“If you have a reasonable doubt about whether the defendant had the
specific intent or mental state required for burglary or attempted
burglary as a lesser included offense, you must find him not guilty of
those crimes.”

While defense counsel did not request that the trial court instruct the
jury with CALCRIM No. 1863, the claim of right instruction, Alvarado argues
on appeal that the language of this instruction would have “better” explained
to the jury how Alvarado’s mistaken belief in A.C.’s claim of right to the car

7
keys negated any specific intent on his part to commit a theft.2 We
reproduce the pattern claim of right instruction here, in relevant part:
“If the defendant obtained property under a claim of right, [he] did
not have the intent required for the crime of [theft].

“The defendant obtained property under a claim of right if [he]
believed in good faith that [he] had a right to the specific property or
a specific amount of money, and [he] openly took it.

“In deciding whether the defendant believed that [he] had a right to
the property and whether [he] held that belief in good faith, consider
all the facts known to [him] at the time [he] obtained the property,
along with all the other evidence in the case. The defendant may
hold a belief in good faith even if the belief is mistaken or
unreasonable. But if the defendant was aware of facts that made that
belief completely unreasonable, you may conclude that the belief
was not held in good faith.” (CALCRIM No. 1863.)

There was no evidence presented that would support either of these
instructions. That is, there was no evidence to support Alvarado’s claim that
he believed either that he was accompanying A.C. to her own home or that
A.C. had a claim of right to the car keys. Alvarado did not testify, so there
was no evidence as to what he believed or thought at the time of the relevant
events, and he presented no other evidence that would support a mistake of
fact defense. When defense counsel first requested a mistake of fact
instruction, she claimed to have elicited testimony from A.C.’s mother that
A.C. identified the home as hers on the day of the burglary, but the record

2 The claim of right defense may be extended to a defendant’s recovery of
a third party’s property. (People v. Williams (2009) 176 Cal.App.4th 1521,
1527-1529 [defendant entitled to claim of right defense when tried as an
accomplice for aiding and abetting his brother in stealing a car and computer
that purportedly belonged to the brother]; People v. Covarrubias (2016) 1
Cal.5th 838, 874-875 [defendant not entitled to claim of right defense when
substantial evidence did not support his claim that he was retrieving
property for a friend since defendant was “looting” instead of grabbing a
specific item].)
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does not support this assertion. Rather, the record reveals only that A.C.’s
mother affirmed that A.C. had demanded to enter “the house.” There was
thus no evidence to support Alvarado’s contention that at the time he
attempted to gain entry into A.C.’s mother’s home, he believed that the home
was A.C.’s. Additionally, Alvarado makes much of the fact that A.C. pounded
on the door to the duplex and openly demanded the car keys, suggesting that
such a demand demonstrates a possessory right to the keys. However, there
was no evidence that A.C. ever claimed that the car keys were hers or that
she had a right to them, or that appellant believed that A.C. had a right to
possess the car keys. In sum, the jury heard only that Alvarado accompanied
A.C. to a home and that she demanded the car keys.
Moreover, the jury was presented with other substantial evidence that
was inconsistent with any belief on Alvarado’s part that A.C. had a
possessory interest in either the home or the car keys. For instance, the jury
heard testimony that A.C. violently kicked at a locked and barricaded back
door. She did not attempt to gain entry to the home with a key or even by
knocking on the front door. The jury also heard that a woman inside the
home was pushing against the door to keep it closed while pleading with A.C.
and the two men to go away or she would call the police. Finally, the jury
heard testimony that A.C. ran away when the police were called, and that
Alvarado barricaded himself outside when police arrived. Neither attempted
to meet with the police to explain that they were merely seeking property to
which A.C. had a right.

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 In sum, the record was devoid of any evidence that would support
Alvarado’s contention that he believed that A.C. had a possessory interest in,
or claim of right to, the car keys. We conclude that the trial court did not err
by omitting a reference to the car keys in the mistake of fact instruction
because the court was under no obligation to give this instruction in the first
place, given the lack of evidence to support it. We similarly conclude that the
court did not err by failing to instruct on a claim of right because there was
no evidence to support that instruction, either.
c. The Trial Court Did Not Err When Responding to a
Question from the Jury
In a related argument, Alvarado claims that the trial court’s response
to one of the jury’s questions was incomplete and misleading because it failed
to properly convey that a claim of right defense existed. We disagree.
During deliberations, the jury submitted a note to the trial court with
two questions. One of the questions was, “Is theft still theft if [] one is
attempting to gain property back for a friend[?]” While conferring with
counsel, the court expressed its intention to simply refer the jury to the
mistake of fact instruction (CALCRIM No. 3406). Defense counsel agreed to
the court’s proposal and did not request a modification that would include a
reference to the car keys. The prosecutor objected, arguing that the evidence
did not support citation to the mistake of fact instruction. Instead, the
prosecutor asked that the court refer the jury only to the theft instruction

(CALCRIM No. 1800).3 Finding both instructions relevant, the court

3 CALCRIM No. 1800 sets forth the elements for theft and provides, in
relevant part:
This jury instruction provides the definition of “theft” as required for
Burglary. [¶] Theft require[s] that: [¶] 1. The defendant took
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responded to the jury’s note as follows: “As to part 2 regarding theft, the
Court refers you to Instructions 1800 and 3406.”
Section 1138 provides, in relevant part, “After the jury have retired for
deliberation, . . . if they desire to be informed on any point of law arising in
the case, . . . the information required must be given . . . .” “The court has a
primary duty to help the jury understand the legal principles it is asked to
apply. [Citation.] This does not mean the court must always elaborate on the
standard instructions. Where the original instructions are themselves full
and complete, the court has discretion under section 1138 to determine what
additional explanations are sufficient to satisfy the jury’s request for
information.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The court “must
at least consider how it can best aid the jury. It should decide as to each jury
question whether further explanation is desirable, or whether it should
merely reiterate the instructions already given.” (Ibid.; People v. Brooks
(2017) 3 Cal.5th 1, 97 (Brooks).) We review a trial court’s alleged failure to
properly answer a jury question for abuse of discretion. (Brooks, at p. 97;
People v. Hodges (2013) 213 Cal.App.4th 531, 539.)

possession of property owned by someone else; [¶] 2. The
defendant took the property without the owner’s or owner’s agent’s
consent; [¶] 3. When the defendant took the property he intended to
deprive the owner of it permanently or to remove it from the owner’s
or owner’s agent’s possession for so extended a period of time that
the owner would be deprived of a major portion of the value or
enjoyment of the property; [¶] AND [¶] 4. The defendant moved
the property, even a small distance, and kept it for any period of
time, however brief.
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 We conclude that the trial court did not abuse its discretion in
responding to the jury’s question. As discussed in Section A.1.b, ante, there
was no evidence to support either the mistake of fact instruction or a claim of
right instruction. Further, the court’s reference to the theft instruction was
appropriate and complete on its own. Any jury confusion as to whether a
theft occurs if a defendant “is attempting to gain property back for a friend”
would have been clarified by this instruction, which states that a theft does
not occur if a defendant takes property with the permission of the owner or
his agent. Thus, if the jury believed that A.C. had “complete or partial
authority and control over” the car keys, then they could not find that a
theft—and by extension, a burglary—occurred.
d. The Prosecutor Correctly Argued That Mistake of Fact Was
Inapplicable
In a final point of contention related to his asserted mistake of fact
defense, Alvarado claims that the prosecutor improperly argued that mistake
of fact did not apply in this case. We again conclude that there was no error.
During closing arguments, the prosecutor noted that there were certain
jury instructions that were plainly applicable to the case, such as the
requirement that the prosecution prove its case beyond a reasonable doubt
and that all of the elements of a crime be proven. The prosecutor then
argued that “certain instructions, like mistake of fact, may not apply to this
case.” Walking the jury through Alvarado’s claimed defense of mistake of
fact in light of the evidence in the record, the prosecutor highlighted the
unreasonableness of Alvarado’s claim. The prosecutor then said, “[B]ased on
the facts of this case, based on the elements of this case, mistake of fact does
not apply.”

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 “Advocates are given significant leeway in discussing the legal and
factual merits of a case during argument. [Citation.] However, ‘it is
improper for the prosecutor to misstate the law generally [citation], and
particularly to attempt to absolve the prosecution from its . . . obligation to
overcome reasonable doubt on all elements [citation].’ [Citations.] To
establish such error, bad faith on the prosecutor’s part is not required.”
(People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).)
To determine whether the prosecutor committed error, we must view
the challenged statements in the context of the entire argument and the jury
instructions to determine whether there was a reasonable likelihood that the
jury understood or applied the comments in an improper manner. (People v.
Cortez (2016) 63 Cal.4th 101, 130-131 (Cortez); Centeno, supra, 60 Cal.4th at
p. 667.) “ ‘In conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements.’ ” (Centeno, at p. 667.)
Context is critical. “If the challenged comments, viewed in context,
‘would have been taken by a juror to state or imply nothing harmful, [then]
they obviously cannot be deemed objectionable.’ ” (Cortez, supra, 63 Cal.4th
at p. 130.)
A prosecutor’s conduct violates the United States Constitution when
the conduct “ ‘infects the trial with such unfairness as to make the conviction
a denial of due process’ ”; that is, when the conduct is “ ‘of sufficient
significance to result in the denial of the defendant’s right to a fair trial.’ ”
(People v. Harrison (2005) 35 Cal.4th 208, 242.) A prosecutorial error that
does not render a trial fundamentally unfair violates California law only if

13
the conduct involved the use of deceptive or reprehensible methods to
persuade a judge or jury. (Ibid.)
Alvarado did not object to the prosecutor’s statements during closing
arguments. This claim is therefore forfeited. (See Pearl v. City of Los Angeles
(2019) 36 Cal.App.5th 475, 488 [failure to timely object to improper
statements in closing argument forfeits any appellate challenge based on
such misconduct]; Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 598 [“To
preserve a claim of attorney misconduct for appeal, a timely and proper
objection must have been made at trial; otherwise, the claim is forfeited.”].)
The claim also fails on the merits. A “prosecutor is entitled to argue his
or her case vigorously and may properly assert that defense counsel’s
argument reflected a misunderstanding of the relevant law.” (People v.
Young (2005) 34 Cal.4th 1149, 1192.) Moreover, as discussed in Section
A.1.b, ante, there was, in fact, no evidence presented at trial to support
Alvarado’s claim that he believed that either the home or the car keys
belonged to A.C., or that she had a claim of right to them. The prosecutor
was, therefore, correct in arguing that mistake of fact did not apply to this
case.
e. No Showing of Ineffectiveness of Counsel
In the alternative, Alvarado argues that his trial counsel was
ineffective for (1) failing to request a claim of right instruction; (2) failing to
request that language regarding the car keys be added to the mistake of fact
instruction; (3) failing to clarify during closing arguments the relevance of a
mistake of fact as to the car keys; (4) failing to object to the prosecutor’s
closing arguments; and (5) failing to request the inclusion of language in the
trial court’s response to the jury note referring to Alvarado’s belief that A.C.

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had a claim of right to the car keys. Alvarado has not demonstrated that his
attorney provided ineffective assistance.
“To prevail on a claim of ineffective assistance of counsel, the defendant
must show counsel’s performance fell below a standard of reasonable
competence, and that prejudice resulted.” (People v. Anderson (2001) 25
Cal.4th 543, 569 (Anderson).) A defendant is prejudiced by counsel’s
representation if there is a reasonable probability that the outcome would
have been more favorable to the defendant but for counsel’s failings.
(Strickland v. Washington (1984) 466 U.S. 668, 694.)
As discussed in Section A.1.b, ante, there was no evidence to support
either a mistake of fact instruction or a claim of right instruction as to the car
keys. Alvarado is thus unable to demonstrate prejudice from trial counsel’s
alleged failure to ensure that the mistake of fact instruction included a
reference to the car keys, to request an instruction on a claim of right, to
object to the prosecutor’s statements on mistake of fact during closing
arguments, or to clarify in her own closing arguments the import of
Alvarado’s belief that A.C. had a claim of right to the car keys. Because
Alvarado cannot demonstrate prejudice, his claim of ineffective assistance of
counsel necessarily fails. (See Anderson, supra, 25 Cal.4th at p. 569.)
2. Alvarado Has Not Shown Jury Confusion
Alvarado next contends that the jury was confused by the pattern
instructions, by the prosecutor’s conflation of “motive” and “intent,” and by
the prosecutor’s misstatement of the law on voluntary intoxication. We
disagree.

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 a. The Jury Instructions Were Neither Confusing Nor
Incomplete
Alvarado argues that the pattern instructions—CALCRIM Nos. 2524

(specific intent), 17005 (burglary), and 18006 (theft)—were confusing and
incomplete because there was a “double cross-reference” for the intent
requirement “from the specific intent instruction to the burglary instruction
to the completed theft instruction.” He argues that the specific intent

4 CALCRIM No. 252 addresses specific intent and provides, in relevant
part:

“The crime and allegations charged in this case require proof of the
union, or joint operation, of act and wrongful intent. [¶] . . . [¶]

“For you to find a person guilty of this crime, that person must not
only intentionally commit the prohibited act, but must do so with a
specific intent. The act and the specific intent required are explained
in the instruction for that crime. [¶] . . . [¶]

“For you to find the allegation true, that person must not only
commit the prohibited act, but must do so with wrongful intent. A
person acts with wrongful intent when he or she intentionally does a
prohibited act; however, it is not required that he or she intend to
break the law. The act required is explained in the instruction for
that crime or allegation.”

5 CALCRIM No. 1700 sets forth the elements for burglary and provides,
in relevant part:

“To decide whether the defendant intended to commit theft, please
refer to the separate instructions that I will give you on that crime.

“A burglary was committed if the defendant entered with the intent
to commit theft. The defendant does not need to have actually
committed theft as long as he entered with the intent to do so. The
People do not have to prove that the defendant actually committed
theft.”

6 See footnote 3, ante.
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required for burglary should have been set forth in a single, separate
instruction. He also argues that the trial court’s instruction on “motive”
added to the confusion because motive was not addressed by the prosecutor,
separate from intent. We conclude that the instructions pertaining to the
intent required for burglary were proper and sufficient.
In a criminal case, the trial court has a sua sponte duty to instruct the
jury on all general principles of law relevant to the issues raised by the
evidence. (Brooks, supra, 3 Cal.5th at p. 73.) “A claim of instructional error
is reviewed de novo. [Citation.] An appellate court reviews the wording of a
jury instruction de novo and assesses whether the instruction accurately
states the law. [Citation.] In reviewing a claim of instructional error, the
court must consider whether there is a reasonable likelihood that the trial
court’s instructions caused the jury to misapply the law in violation of the
Constitution. [Citations.] The challenged instruction is viewed ‘in the
context of the instructions as a whole and the trial record to determine
whether there is a reasonable likelihood the jury applied the instruction in an
impermissible manner.’ ” (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
Instructional error requires reversal of the judgment only if it resulted in a
miscarriage of justice, meaning that it is reasonably probable that the
defendant would have fared better in the absence of the error. (Cal. Const.,
art. VI, § 13; Code Civ. Proc., § 475; People v. Watson (1956) 46 Cal.2d 818,
836; see People v. Cavitt (2004) 33 Cal.4th 187, 209 [erroneous limiting
instruction subject to Watson harmless error analysis].)
To evaluate Alvarado’s claim of instructional error, we first consider
the instructions given to the jury. Alvarado was charged with a single count
of burglary. The trial court instructed the jury that burglary is a specific
intent crime, that a defendant commits a burglary if he entered a building

17
with the intent to commit a theft, and that theft involves taking possession of
property owned by someone else without the owner’s or owner’s agent’s
consent, with the intent to deprive the owner of it permanently. An agent, in
turn, was defined as someone to whom the owner has given complete or
partial authority and control over the owner’s property. The jury was also
instructed that the prosecution is not required to prove that Alvarado had a
motive to commit burglary, though the presence or absence of a motive could
be a factor tending to show that a defendant is guilty or not guilty,

respectively (CALCRIM No. 370).7
We are satisfied that the jury was correctly instructed with
straightforward references to related clarifying instructions. Read together,
the instructions on burglary, specific intent, theft, and motive accurately
conveyed the elements of the crime of burglary, including the requisite
specific intent, and clarified that the presence or absence of motive, while not
an element of the crime, may be considered when determining a defendant’s
guilt. We presume that the jury understood and followed the jury
instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940 (Gonzales).)
Even if a separate instruction concerning the specific intent required
for a burglary conviction might have offered further clarity, Alvarado has not
shown that the instructions, as provided, were incorrect, inadequate or

7 CALCRIM No. 370, the instruction pertaining to motive, provides:

“The People are not required to prove that the defendant had a
motive to commit any of the crimes or allegations. In reaching your
verdict you may, however, consider whether the defendant had a
motive. [¶]

“Having a motive may be a factor tending to show that the defendant
is guilty or that an allegation is true. Not having a motive may be a
factor tending to show the defendant is not guilty or that an
allegation is not true.”
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confusing. “A trial court is not obliged to condense the required explanation
of a legal rule or concept in a single instruction; a charge is not erroneous or
prejudicial simply because a required explanation is given in two instructions
rather than one.” (People v. Lewis (2001) 25 Cal.4th 610, 649.) If Alvarado
wanted the court to give an additional, separate instruction on specific intent,
it was incumbent on him to propose a pinpoint instruction on the specific
intent required for burglary. His failure to do so forfeited this claim. (People
v. Richardson (2008) 43 Cal.4th 959, 1022-1023 [failure to request
modification of otherwise correct instruction forfeits claim on appeal]; People
v. Gutierrez (2009) 45 Cal.4th 789, 872 [defendant bears burden of requesting
pinpoint instruction].)
b. The Prosecutor’s References to Motive in Closing Argument
Alvarado next argues that the prosecutor improperly conflated “motive”
and “intent” in her closing argument, and that this purportedly confused the
jury.
During closing arguments, the prosecutor made comments to the effect
that, while Alvarado was motivated to burglarize A.C.’s mother’s home, his
plan was poorly thought out. The prosecutor returned to these comments a
couple of times. First, while discussing the specific intent required for
burglary, the prosecutor stated, “[T]he second element I must prove . . . is
that when he entered, he had the intent to commit theft. As I said before, he
was motivated, but it was poorly thought out.” Then, during her final
remarks, the prosecutor said, “[Alvarado] had motivation to do what he was
doing. He just didn’t think it out that smartly.”
To the extent that Alvarado claims error based on these comments by
the prosecutor, he forfeited this claim on appeal by not objecting during
closing arguments. Even if we were to reach the merits, we would conclude

19
that the prosecutor’s references to motive while discussing the intent
required for burglary was not error, and even assuming error, was harmless.
The prosecutor made only one such reference while discussing intent, and
that reference was made during a lengthy soliloquy on the intent required for
burglary. Alvarado’s suggestion that these references confused the jury is
speculative. The jury was properly instructed on both intent and motive, and
they did not indicate to the court that they were confused. Further, Alvarado
has not shown that it is reasonably likely that the jury applied the comments
in an improper or erroneous manner.
Alvarado has also not shown that trial counsel was ineffective for
failing to object to the prosecutor’s statements. (See Anderson, supra, 25
Cal.4th at p. 569.) We disagree, initially, that the prosecutor erred by
referencing motive while discussing intent. But even assuming error,
Alvarado has not shown that he was prejudiced by it. As we noted, the
comments were brief and made in passing, the prosecutor spent a
considerable portion of her closing arguments discussing the specific intent
required for burglary, and the jury was properly instructed on both intent
and motive. There is thus no showing that it was reasonably likely that the
jury mistook motive for intent. In the absence of prejudice, counsel cannot be
deemed to have been ineffective.
c. The Prosecutor Did Not Misstate the Law with Respect to
Voluntary Intoxication
Alvarado argues that the jury was further confused by “the prosecutor’s
insistence that voluntary intoxication [is] not a defense to burglary because
all that the law required was that Mr. Alvarado’s actions be knowing.” In
support of this argument, Alvarado cites to the prosecutor’s statements that
“the law doesn’t require that you have to be smart or not smart to commit a

20
crime. It’s just showing a level of acknowledgement in terms of what he
knew and what he was doing” and that “[h]e knew what he was doing.”

Notwithstanding Alvarado’s forfeiture of this claim for failure to object,
we conclude that there was no error. First, the prosecutor’s comments are
not reasonably understood as Alvarado proposes. Rather, the comments
appear to be responsive to Alvarado’s own arguments about his state of mind.
Defense counsel had argued that voluntary intoxication is a complete defense
to the charged offense. She claimed that Alvarado was so intoxicated that he
could not have formed the specific intent necessary for burglary because he
was “not quite there,” he was potentially “hav[ing] a hard time separating
reality from hallucination,” and the range of drugs in Alvarado’s system was
so high that Alvarado may have been unable to “tell the
difference . . . between the truth and reality.”
In response to this argument, the prosecutor noted that, while some
intoxicated individuals can be “so high out of [their] mind that [they] didn’t
know what was going on,” Alvarado’s behavior did not rise to that level.
Addressing the reference to hallucinations, the prosecutor argued that this
argument by defense counsel was intended to “distract” the jury by
suggesting that Alvarado “must not know what he’s doing.” But if Alvarado
was indeed so unaware of his circumstances, then why, asked the prosecutor,
did he remove his hand when the officer said, “Hey!” or build a barricade to
attempt to thwart his arrest, or knowingly waive his Miranda rights? The
prosecutor argued that Alvarado’s intoxication did not render him unable to
distinguish between truth and reality, let alone unable to form the requisite
intent for burglary.
More fundamentally, the jury was instructed that it was required to
follow the law as explained in the instructions, and that if an attorney’s

21
comments on the law conflicted with the court’s instructions, the jury was to

follow the instructions.8 The jury instruction on voluntary intoxication,
CALCRIM No. 3426, informed the jury that it could consider “defendant’s
voluntary intoxication only in a limited way. You may consider that evidence
only in deciding whether the defendant acted with specific intent to commit a
crime.” That same instruction provided that “the People have the burden of
proving beyond a reasonable doubt that the defendant acted with specific
intent to permanently deprive the owner of her property.” This instruction,
coupled with the instructions for burglary (CALCRIM No. 1700) and theft
(CALCRIM No. 1800), properly set forth the specific intent requirement for a
burglary conviction. We again presume that the jury understood and
followed the jury instructions, and Alvarado has provided no basis to
conclude that the jurors were unable or unwilling to do so. (Gonzales, supra,
51 Cal.4th at p. 940.) In the absence of error, we also conclude that trial
counsel was not ineffective for failing to object to the prosecutor’s statements.
(See Anderson, supra, 25 Cal.4th at p. 569.)
3. There Was No Cumulative Error
Alvarado argues that the cumulative effect of the alleged errors

relating to the specific intent required for burglary warrants reversal.9

8 The jury was instructed with CALCRIM No. 200, which provides, in
relevant part, “You must follow the law as I explain it to you, even if you
disagree with it. If you believe that the attorneys’ comments on the law
conflict with my instructions, you must follow my instructions. [¶] Pay
careful attention to all of these instructions and consider them together.”

9 In a section of his brief relating to juror confusion, Alvarado argues in
passing that the prosecutor erred by referencing his post-arrest silence. This
claim was not asserted under a separate heading or subheading. (Cal. Rules
of Court, rule 8.204(a)(1)(B).) We will therefore not address it as a claim of
error.
22
“Under the ‘cumulative error’ doctrine, errors that are individually harmless
may nevertheless have a cumulative effect that is prejudicial.” (In re Avena
(1996) 12 Cal.4th 694, 772, fn. 32.) “A claim of cumulative error is in essence
a due process claim and is often presented as such [citation]. ‘The “litmus
test” for cumulative error “is whether defendant received due process and a
fair trial.” ’ ” (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.)
We have concluded that none of Alvarado’s claims of error as to the
specific intent required for burglary has merit. There is thus no series of
prejudicial errors to cumulate. Accordingly, Alvarado cannot demonstrate
that the cumulative effect of the alleged errors resulted in prejudice. (See In
re Reno (2012) 55 Cal.4th 428, 483 [“As noted, claims previously rejected on
their substantive merits—i.e., this court found no legal error—cannot
logically be used to support a cumulative error claim because we have already
found there was no error to cumulate.”].)
B. Unlawful Entry Instruction Was Not Required
Alvarado contends that the trial court’s failure to instruct the jury on
unlawful entry, Penal Code section 602.5, as a lesser included offense of
burglary under the accusatory pleading test was reversible error. We
disagree.
“ ‘ “[I]t 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.]’ ([People v.] Castaneda [(2011)] 51
Cal.4th [1292,] 1327, italics added).” (People v. Westerfield (2019) 6 Cal.5th
632, 718.) “ ‘ “[T]he existence of ‘any evidence, no matter how weak’ will not
justify instructions on a lesser included offense . . . .” [Citation.] Rather,
substantial evidence must exist to allow a reasonable jury to find that the

23
defendant is guilty of a lesser but not the greater offense. [Citation.]
“ ‘ “Substantial evidence is evidence sufficient to ‘deserve consideration by the
jury,’ that is, evidence that a reasonable jury could find persuasive.” ’ ”
[Citation.]’ (People v. Valdez [(2004)] 32 Cal.4th [73,]116, fn. omitted.)”
(Westerfield, at p. 718.) Instructions regarding lesser related offenses are not
to be given absent the mutual assent of the parties. (People v. Birks (1998) 19
Cal.4th 108, 112-113 (Birks).)
“ ‘On appeal, we review independently the question whether the trial
court failed to instruct on a lesser included offense.’ [Citation.]” (People v.
Avila (2009) 46 Cal.4th 680, 705.) In noncapital cases such as this one, the
failure to instruct on a lesser included offense is reviewed for harmless error
under the standard set forth in People v. Watson, supra, 46 Cal.2d 818, which
asks whether it is reasonably probable that the defendant would have
obtained a more favorable result if the instructional error had not occurred.
(Id. at p. 836; see People v. Breverman (1998) 19 Cal.4th 142, 148-149
(Breverman).)
“ ‘Under California law, a lesser offense is necessarily included in a
greater offense if either the statutory elements of the greater offense, or the
facts actually alleged in the accusatory pleading, include all the elements of
the lesser offense, such that the greater cannot be committed without also
committing the lesser.’ ” (Breverman, supra, 19 Cal.4th at p. 154, fn. 5.)
“The elements test is satisfied if the statutory elements of the greater
offense include all of the statutory elements of the lesser offense, such that all
legal elements of the lesser offense are also elements of the greater.
[Citation.] In other words, ‘ “[I]f a crime cannot be committed without also
necessarily committing a lesser offense, the latter is a lesser included offense
within the former.” ’ [Citations.] Under the accusatory pleading test, a lesser

24
offense is included within the greater charged offense if the facts actually
alleged in the accusatory pleading include all of the elements of the lesser
offense.” (People v. Bailey (2012) 54 Cal.4th 740, 748.)
Foregoing a claim of error under the statutory elements test, Alvarado
argues only that the trial court erred when it failed to instruct on unlawful

entry, or trespass,10 under the accusatory pleading test.11 We conclude that
the trial court did not err. Residential burglary is the entry of a dwelling
with the intent to commit a theft. (§§ 459 & 460, subd. (a).) Criminal
trespass is the entry of a residence without the owner’s consent. (See § 602.5,
subds. (a) & (b).) In the crime of burglary, it is the defendant’s felonious
intent, not the absence of consent or permission, that renders an entry
unlawful. (See People v. Salemme (1992) 2 Cal.App.4th 775, 780 [noting the
“ ‘law . . . is that one [who enters a structure with the intent to commit petty
theft or a felony] may be convicted of burglary even if he [or she] enters with
consent,’ ” as long as he or she does not have a possessory right to enter].) By
contrast, the unlawful act that underlies criminal trespass is entry without
the owner’s consent. (See § 602.5, subds. (a) & (b) [Under section 602.5,
subdivision (a), “Every person other than a public officer . . . who enters or
remains in any noncommercial dwelling house, apartment, or other

10 Unlawful entry is sometimes referred to as trespass. (See People v.
Yoder (1979) 100 Cal.App.3d 333, 339-340 [equating unlawful entry with
trespass].)

11 As the California Supreme Court has held, criminal trespass is not a
lesser included offense of burglary under the elements test. (Birks, supra, 19
Cal.4th at p. 118, fn. 8 [“trespass is not a lesser necessarily included offense
of burglary”].) This is “because burglary, the entry of specified places with
intent to steal or commit a felony (§ 459), can be perpetrated without
committing any form of criminal trespass (see § 602).” (Birks, at p. 118,
fn. 8.) That is, “[a] burglary may be committed by one who has permission to
enter a dwelling.” (People v. Lohbauer (1981) 29 Cal.3d 364, 369.)
25
residential place without consent of the owner . . . is guilty of a misdemeanor.”
(Italics added.)]; see also CALCRIM No. 2932 [to be guilty of trespass, the
People must prove the defendant (1) willfully entered or remained in a
noncommercial building belonging to someone else and that he or she
(2) entered or remained without the consent of the person in lawful
possession of the property].)
The information did not allege that Alvarado “unlawfully” entered a
building occupied by another “without the owner’s consent.” Rather, it
alleged that Alvarado “did unlawfully enter a building occupied by [A.C.’s
mother] with the intent to commit theft . . . .” Under the allegations in the
information, it was Alvarado’s intent to steal that made his entry unlawful,
not A.C.’s mother’s lack of consent. To “unlawfully enter” is not synonymous
with to “enter without consent,” as Alvarado contends. Because the
information did not allege unlawful entry under the accusatory pleading test,
the trial court was not required to instruct on unlawful entry as a lesser
included offense of burglary.
While trespass is not a lesser included offense of burglary, it is a lesser
related offense. (See People v. Taylor (2010) 48 Cal.4th 574, 622 [“Trespass is
a lesser related crime of burglary”].) Nonetheless, the trial court still had no
duty to instruct on unlawful entry where, as here, there is no indication that
the parties mutually assented to giving the instruction. (Birks, supra, 19
Cal.4th at pp. 136-137; People v. Foster (2010) 50 Cal.4th 1301, 1343-1344
[finding that because “trespass is a lesser related offense, not a lesser
included offense, of burglary[,]” the court had no sua sponte duty to deliver
the instruction].)
Therefore, the trial court did not err in failing to instruct the jury on
the offense of unlawful entry.

26
C. Fines and Fees
Finally, Alvarado raises three issues concerning the fines and fees that
the trial court imposed. Alvarado first asks us to strike the drug program fee
as unauthorized. He also seeks correction of the abstract of judgment to
reflect that the fines and fees that the court imposed have been stayed
pending an ability to pay hearing. Third, he contends that the trial court’s
imposition of the fines and fees before an ability to pay hearing was held
violated his due process rights. We agree that the drug program fee should
be stricken and that the abstract of judgment should be corrected.
1. Background
At the sentencing hearing, the trial court imposed several fines and
fees, including an $1,800 restitution fine pursuant to Penal Code section
1202.4, subd. (b), a $40 court operations assessment pursuant to Penal Code
section 1465.8, a $30 criminal conviction assessment fee pursuant to
Government Code section 70373, and a $615 drug program fee pursuant to
Health and Safety Code section 11372.7.
Following the imposition of these fines and fees, defense counsel
requested an ability to pay hearing. The trial court granted this request,
stating, “The court will stay collection of the fees that I’ve just imposed
pending showing that Mr. Alvarado has the ability to pay.”
2. Drug Program Fee Shall Be Stricken
Alvarado first asks us to strike the drug program fee that was imposed
pursuant to Health and Safety Code section 11372.7. He contends that the
fee is unauthorized because he was not convicted of violating any provision of
the Health and Safety Code related to controlled substances. Respondent
does not oppose this request. We therefore modify the judgment by striking
the $615 drug program fee.

27
 3. The Trial Court Stayed the Fines and Fees
Alvarado next seeks to have all of the imposed fines and fees stricken,
urging us to read the trial court’s statement that it will “stay collection of the
fees that I’ve just imposed” as a ruling to delay their imposition until an
ability to pay hearing has been held. We decline to do so. It is clear that the
trial court imposed, and stayed, the fines and fees; the court did not delay
their imposition.
4. The Imposition of the Fines and Fees Does Not Warrant Reversal
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
Alvarado seeks a conditional reversal of the fines and fees on the ground that
his due process rights were violated when the trial court imposed them before
holding a hearing on Alvarado’s ability to pay. We conclude that, to the
extent the trial court may have erred by imposing the fines and fees before
holding a hearing, reversal is not warranted because the trial court granted
Alvarado all of the relief to which he would be entitled under Dueñas pending
an ability to pay hearing.
The Dueñas court held that due process precludes a trial court from
“impos[ing]” certain assessments and fines when sentencing a criminal
defendant in the absence of determination that the defendant has a “present
ability to pay” those assessments and fines. Specifically, Dueñas held that
“due process of law requires [a] trial court to . . . ascertain a defendant’s
present ability to pay before it imposes” (1) “court facilities and court
operations assessments” (under Pen. Code, § 1465.8 and Gov. Code, § 70373,
respectively), or (2) a restitution fine (under Pen. Code, § 1202.4). (Dueñas,
supra, 30 Cal.App.5th at pp. 1164, 1167, 1172.)
We conclude that it is unnecessary under the circumstances of this case
to traverse the rocky post-Dueñas terrain. While the Dueñas court

28
announced its holding in due process terms, its ultimate disposition was to
stay execution of the restitution fine pending an ability to pay hearing, and to
reverse the order imposing the assessments because the trial court had found
the defendant to be indigent. (Dueñas, supra, 30 Cal.App.5th at pp. 1162-
1164, 1168-1169, 1172-1173; People v. Castellano (2019) 33 Cal.App.5th 485,
490 (Castellano) [“Our holding in Dueñas that the fees and assessments could
not constitutionally be assessed and that execution of the restitution fine had
to be stayed was based on the trial court’s uncontested finding that Dueñas

was unable to pay the amounts imposed”].)12

Assuming, solely for the purpose of addressing Alvarado’s argument,13
that we agree with the decision in Dueñas, and further assuming that the
trial court committed error under Dueñas when it imposed the fines and fees
before holding an ability to pay hearing, reversal is not warranted because
the trial court stayed execution of the restitution fine pending an ability to
pay hearing and also stayed execution of the assessments.
In Dueñas, the assessments were reversed based on ample evidence in
the record and the trial court’s own determination that the defendant was
indigent, having suffered through “a series of criminal proceedings driven by,
and contributing to, [her] poverty.” (Dueñas, supra, 30 Cal.App.5th at
pp. 1163-1164; Castellano, supra, 33 Cal.App.5th at p. 490.) In contrast,

12 Less than three months after Dueñas was decided, a different panel of
the same court decided Castellano.

13 Our court has declined to adopt the Dueñas court’s due process
analysis. Instead, we have concluded that due process does not “ ‘bar[] the
imposition of . . . assessments and [a] . . . restitution fine’ even as to a
defendant who is unable to pay.” (People v. Cota (2020) 45 Cal.App.5th 786,
795; see People v. Allen (2019) 41 Cal.App.5th 312, 326 [“[W]e would adopt
the reasoning of the numerous courts that have rejected Dueñas’s due process
analysis.”].)
29
there is nothing in the record to suggest that Alvarado is unable to pay the
assessments. To the contrary, Alvarado was only 26 years old when he
committed the charged offense. According to the Probation Report, he is able-
bodied, “enjoys working,” worked part-time in the concrete industry earning
$50 per hour, and has future plans to “find[] a good job and work[].” And
unlike the defendant in Dueñas, Alvarado’s incarceration is not a
consequence of prior criminal assessments and fines that have
“ ‘snowball[ed].’ ” (Dueñas, at p. 1164.)
Having been granted an ability to pay hearing, Alvarado will have the
opportunity to demonstrate that he is unable to pay the assessments and the
restitution fine. Dueñas requires no more than this.
5. The Abstract of Judgment Shall be Modified
On a final note, there is a discrepancy between the oral pronouncement
of judgment, on the one hand, and the abstract of judgment and the minute
order, on the other hand. At the sentencing hearing, the trial court imposed
an $1,800 restitution fine and an additional $1,800 probation revocation fine
that was stayed unless Alvarado’s probation was revoked. However, the
minutes of the pronouncement of judgment and the abstract of judgment
indicate that each of these fines was only $300. Where there is a discrepancy
between the oral pronouncement of judgment and the abstract of judgment or
minute order, the oral pronouncement controls. (People v. Mitchell (2001) 26
Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) We will
therefore exercise our inherent authority to order that clerical errors in the
existing abstract of judgment be corrected. (People v. Rowland (1988) 206
Cal.App.3d 119, 123.)
Alvarado also contends that the abstract of judgment needs to be
corrected to reflect that the trial court stayed the execution of the fines and

30
fees. In fact, the abstract of judgment includes precisely this information in
line item number eight (“fines & fees stayed pending defendant’s ability to
pay”). There is, therefore, no need for a correction in that regard.
IV.
DISPOSITION
On remand, the trial court shall strike the drug program fee from the
judgment and the abstract of judgment. In addition, the clerk of the superior
court shall amend the abstract of judgment and the minute order of July 22,
2020, to reflect the imposition of a restitution fine in the amount of $1,800
pursuant to section 1202.4, subdivision (b), and a probation revocation fine in
the amount of $1,800 pursuant to section 1202.45. The clerk of the superior
court shall forward a copy of the amended abstract of judgment to the
California Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.

31