In a trial for burglary, when instructing on whether the defendant had the specific intent to commit theft, the jury must be instructed that the defendant had to act with the specific intent to permanently deprive the owner of possession. Myles, who was homeless, broke a window and entered an unoccupied house. Inside, he drank a juice box, ate ice cream, and charged the battery in the owner’s vehicle. Months later, defendant tried to break into the house again. The only issue at his trial for burglary and attempted burglary was whether he had the specific intent to commit theft when he entered. Defendant presented evidence he suffered delusions and believed the home belonged to him. The trial court modified the pattern instruction defining theft by larceny (CALCRIM No. 1800), adding: “The unauthorized use of utilities in a residence or consumption of property within the home is considered larceny for purposes of Burglary.” The jury convicted on both counts. Defendant appealed. Held: Reversed. A defendant who takes property in the mistaken belief it belongs to him lacks the intent required for theft. The word “unauthorized” in the modified instruction conveyed that the owner had not consented to the use or consumption of the property. But nothing in this description of theft conveyed that the defendant had to act with the specific intent to permanently deprive the owner of the utilities used, or the property consumed. The modified jury instruction resulted in the jury receiving an alternative definition of theft that was erroneous and argumentative, and had the effect of lightening the prosecution’s burden of proof. [Editor’s Notes: (1) The Court of Appeal also determined that the instructional error claim was not waived. Additionally, since the error was a misinstruction on an element of the offense, prejudice was properly examined under Chapman. Finally, since reversal of the convictions was not predicated on a finding of insufficient evidence, the prosecution was not barred from retrying these charges on remand. (2) Myles filed a petition for review in the California Supreme Court, which is currently pending. A request to depublish the opinion has also been filed.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D079825.PDF