Filed 6/9/14 P. v. McGruder CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DERICK TYRONE MCGRUDER,

Defendant and Appellant.

B245785

(Los Angeles County

Super. Ct. No. TA123817)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Laura R. Walton, Judge. Affirmed.

Alexander Paul Green, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and 

Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

Appellant Derick Tyrone McGruder appeals from the judgment entered following 

his convictions by jury on count 1 – first degree burglary with a person present (Pen. Code, 

§§ 459, 667.5, subd. (c)(21)) and count 2 – assault by means of force likely to produce 

great bodily injury (Pen. Code, § 245, subd. (a)(4)) with admissions he suffered a prior 

felony conviction (Pen. Code, § 667, subd. (d)), a prior serious felony conviction (Pen. 

Code, § 667, subd. (a)(1)), and prior prison terms (Pen. Code, § 667.5, subd. (b)). The 

court sentenced appellant to prison for 13 years. We affirm.

FACTUAL SUMMARY

1. People’s Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 

6 Cal.4th 1199, 1206), the evidence established on June 27, 2012, Oscar Casillas lived in 

his house on South Essey in Compton. The front entrance to Casillas’s house had two 

doors, i.e., a wooden front door (hereafter, front door) and a screen door. The screen door 

opened to the right of a person exiting the house.

Casillas testified as follows. About 1:15 p.m., Casillas was at home with his 

children and his wife’s nephew. The front door was open because it was a hot day, but the 

screen door was closed. Casillas and his children were playing in the living room. The 

nephew was asleep. 

Casillas saw appellant next to the screen door. Appellant’s hands were cupped 

around his eyes and he began looking through the screen door. Casillas greeted appellant 

and asked, “What’s going on?” Appellant replied, “All good. All good.” After appellant 

looked through the screen door for a total of about five seconds, Casillas went to the front 

door.

Casillas opened the screen door, erroneously thinking appellant was a neighbor. 

Appellant, whom Casillas did not know, asked who else lived with Casillas. Casillas 

thought the question was strange but replied his family and nephew lived with Casillas. 
3

Appellant grabbed the screen door with his left hand.1 Casillas said he had to go 

and needed to take a bath because he was going to work. Appellant, using his open right 

hand, grabbed the doorframe where the front door normally closed (hereafter, doorframe). 

(That doorframe apparently was on the left of a person exiting the house.) Appellant’s 

right hand was extended and his fingers were bent. Casillas testified the fingertips of 

appellant’s right hand were “inside” “where the door was.” Appellant was trying to enter. 

He was saying, “Wait, don’t leave. Don’t close it. I’m thirsty. Give me water.” Casillas 

felt he needed to close the screen door, in part because he did not want his children 

frightened.

Appellant’s left foot was at the screen door. He positioned his right foot as if he 

wanted to enter. Appellant took a step “inside” and his right foot was “halfway into 

[Casillas’s] door.” Appellant’s right foot “was . . . half in and half outside” and “crossing 

the threshold to [Casillas’s] building.”

The prosecutor asked what was Casillas thinking when appellant “put his feet in 

through the door” and Casillas indicated he thought appellant was going to enter. The 

prosecutor asked what happened after appellant “put his feet in there,” and Casillas replied 

appellant was telling Casillas to give appellant water. 

Casillas started pulling on the screen door and appellant was pulling the other way. 

Casillas yelled to his daughter to call the police. Appellant grabbed the screen door with 

both hands. Casillas, grasping the handle of the screen door, was trying to exit so the

screen door would close and lock behind him. Casillas was concerned “if [appellant] had 

something and he entered, [Casillas’s] children were going to be there.” Casillas’s four 

children were most important to him.

Appellant released the screen door and began hitting Casillas with appellant’s fist. 

When appellant hit Casillas the first time, Casillas was “between outside and inside.” 

 

1 During his testimony, Casillas frequently referred to one of appellant’s hands or feet 

without explicitly identifying it as appellant’s left or right hand, or left or right foot. However, 

where the record, fairly read, indicates which hand or foot Casillas was referring to, we 

identify it below.
4

Casillas later testified the first few times appellant hit Casillas, Casillas was inside his 

house and appellant was outside. Appellant hit Casillas about three times in the head. 

When appellant was inflicting the first blows, Casillas’s head was hitting a wall.

Casillas exited and the screen door closed and locked. Appellant hit Casillas 

perhaps four more times in the head. Appellant was quickly hitting Casillas with both fists 

as if appellant wanted to knock Casillas out. Because of the blows, Casillas felt dizzy and 

fell into nearby bushes. Casillas never pushed or struck appellant.

After appellant struck Casillas the third or fourth time outside, Casillas yelled to his 

daughter to call the police. After Casillas yelled the third time to his daughter to call the 

police, Casillas’s daughter began yelling at appellant. Appellant later left. 

Appellant walked around the front of Casillas’s house, crossed the street, and 

walked parallel to the side of Casillas’s house. Appellant was looking towards Casillas’s

house, its backyard, and the house’s side windows. Appellant was looking at Casillas’s 

house as if appellant was trying to see something or wanted to jump over something. This 

made Casillas think appellant perhaps was on drugs. Appellant’s grandmother, who lived 

in a house catercorner to Casillas’s house, called for appellant and he went to his 

grandmother’s house.

As a result of appellant’s blows, Casillas bled profusely from his nose and mouth, 

his face and mouth were swollen, and he received scratches. Cuts on Casillas’s lip 

remained perhaps four days. Casillas did not seek medical treatment because he could not

afford it.

During cross-examination, Casillas testified as follows. When appellant initially 

approached and was talking to Casillas, appellant’s left hand was on the screen door and 

Casillas believed appellant’s right hand “had entered the doorway.” Later, appellant’s 

right foot was “in” when appellant told Casillas to wait and give water to appellant. When 

Casillas was trying to close the screen door, he thought that, based on what appellant was 

doing, appellant might have been under the influence of narcotics or alcohol. However, 

appellant did not need assistance to stand.
5

The following occurred between appellant’s counsel and Casillas: “Q. So at this 

time, his foot’s in the door, his hand’s in the doorway, and he says, ‘Wait. Don’t go. Give 

me some water. I’m thirsty’? [¶] A. Yes.” Casillas replied to appellant, “ ‘No. Why? I 

already have to go to work.”

Los Angeles County Sheriff’s Deputy Ignacio Garcia went to the scene and saw 

appellant was uninjured. Appellant’s grandmother told Garcia appellant previously had 

used methamphetamine. However, Garcia opined at trial appellant was not under the 

influence when Garcia contacted him. According to Garcia, some methamphetamine users 

used methamphetamine two or three days at a time. Such users might be dehydrated and 

want water. 

2. Defense Evidence.

In defense, Casillas testified that, at the preliminary hearing, the magistrate asked 

Casillas “was any part of the defendant’s body inside your home” and Casillas replied no.2 

Casillas denied that, after the preliminary hearing, he had any contact with prosecutors or 

investigators in this case. At trial, during cross-examination by the prosecutor, Casillas 

testified that when the magistrate asked the above question, Casillas “thought [the

magistrate] was referring to like part of the body, maybe the whole body, maybe half the 

body, not like just the hands or the foot.”

The prosecutor, indicating he was trying to clarify Casillas’s testimony on the above 

issue, elicited testimony from Casillas at trial that, at the preliminary hearing, he testified 

“. . . [appellant] had his foot already. He just was trying to go inside.” The following 

exchange also occurred at trial between the prosecutor and Casillas: “Q. Again, page 6 of 

the preliminary hearing, do you remember saying: [¶] ‘The Witness: He was in between 

the line in the middle, in the middle maybe. Maybe in the middle.’ [¶] His foot was in the 

 

2 Appellant’s counsel asked Casillas if, at the preliminary hearing, the following 

exchange occurred between counsel and Casillas: “So you were able to close your front door 

before the defendant started hitting? [¶] ‘[A.] Thank God, yes, I was able to close it. If not, I 

don’t know.’ ” Casillas testified, “Yes, I said it, maybe, . . . but it was not like that. 

[Appellant] started hitting me before that.”
6

middle of the door? That’s a question. [¶] A. Yes. [¶] Q. Do you remember saying

that? [¶] A. Yes.” (Sic.) At trial, Casillas testified the “little snippet” appellant’s trial 

counsel had read did not accurately reflect Casillas’s preliminary hearing testimony.

During redirect examination by appellant at trial, Casillas testified that when he was 

asked (by the magistrate) if any part of appellant’s body was inside Casillas’s home,

Casillas “took [the question] to mean some other part of the body.” When Casillas 

indicated the right foot “was maybe in the middle,” he was not indicating uncertainty 

concerning whether appellant’s foot was “crossing.” Casillas testified, “I was saying that 

maybe half or maybe more than half, but yes, it was crossing.”

Appellant’s grandmother testified appellant was under the influence of a drug on the 

day of the incident and two days before. She gave officers information regarding appellant 

being under the influence. 

ISSUES

Appellant claims (1) there is insufficient evidence supporting his burglary

conviction, (2) the trial court erroneously failed to instruct sua sponte on attempted 

burglary as a lesser included offense of burglary, and (3) appellant was denied effective 

assistance of counsel by his trial counsel’s failure to ask the trial court for such an 

instruction. 

DISCUSSION

1. Sufficient Evidence Supported Appellant’s Burglary Conviction.

Appellant claims there is insufficient evidence supporting his burglary conviction. 

He argues there was insufficient evidence he entered Casillas’s house, and insufficient 

evidence of burglarious intent at the time of any entry.3 We reject appellant’s claim.

In Magness v. Superior Court (2012) 54 Cal.4th 270, 273 (Magness), our Supreme 

Court stated a person who enters any house with intent to commit larceny or any felony is 

guilty of burglary, and it has long been settled the slightest entry by any part of the body is 

 

3 The trial court, using CALCRIM No. 1700, instructed the jury that to prove appellant 

was guilty of burglary, the People had to prove he entered a house and “[w]hen he entered a 

house, he intended to commit a theft or an assault likely to produce great bodily injury.”
7

sufficient. Quoting Blackstone, Magness observed, “ ‘As for the entry, . . . the least degree 

of it, with any part of the body, . . . is sufficient: as, to step over the threshold, [and other 

examples], . . . all of them [are] burglarious entries.’ (4 Blackstone’s Commentaries 227, 

fn. omitted.)” (Magness, at p. 273.)

In order for an entry to occur, a part of the body must penetrate the outer boundary 

of the building. (Magness, supra, 54 Cal.4th at p. 273.) “ ‘[I]n general, . . . doors . . . 

constitute . . . [a part] of a building’s outer boundary, the penetration of which is sufficient 

for entry.’ [Citation.]” (Id. at p. 274.) “ ‘[I]t no longer matters whether a person entering 

a house with larcenous or felonious intent does so through a closed door . . . [or] an open 

door . . . . The entry with the requisite intent constitutes the burglary.’ (People v. Gauze

[(1975)] 15 Cal.3d [709,] 712-713, . . .)” (People v. Nunley (1985) 168 Cal.App.3d 225, 

231.) As to whether appellant entered Casillas’s house, there was substantial evidence 

from Casillas’s testimony as a People’s witness as follows. Appellant’s fingertips were 

“inside” where the door was. The front door was open, so Casillas’s testimony, reasonably 

understood, was appellant’s fingertips were “inside” the doorframe. But Casillas also 

testified appellant, with his right foot, took a step “inside,” and Casillas described 

appellant’s right foot as “crossing the threshold to [Casillas’s] building.” The jury 

therefore reasonably could have concluded when Casillas testified appellant’s fingertips 

were “inside” where the door was, Casillas meant they too had crossed the threshold of 

Casillas’s building. Casillas also testified appellant’s right hand had “entered” the 

doorway. 

The jury reasonably could have concluded appellant struggled to enter Casillas’s 

house and, during that struggle, appellant, using his right hand, was reaching inside 

Casillas’s house to obtain a secure grip on the doorframe to pull appellant’s entire body 

inside Casillas’s house. We conclude there was sufficient evidence to convince a rational 

trier of fact, beyond a reasonable doubt, appellant’s right hand “enter[ed]” Casillas’s house 

within the meaning of Penal Code section 459.

Moreover, appellant, using his right foot, took a step “inside,” and his right foot was 

“halfway into [Casillas’s] door,” “half in and half outside,” and “crossing the threshold to 
8

[Casillas’s] building.” Appellant’s right foot was “in” and he had his right “foot[ ] in the 

door.” The jury reasonably could have concluded that during appellant’s struggle, he was 

putting his right foot into Casillas’s house in an effort to enter completely. We conclude 

there was sufficient evidence to convince a rational trier of fact, beyond a reasonable 

doubt, appellant’s right foot “enter[ed]” Casillas’s house within the meaning of Penal Code 

section 459.

Finally, at one point Casillas started pulling on the screen door and appellant was 

pulling the other way. Appellant later began hitting Casillas with appellant’s fist. The first 

few times appellant hit Casillas, Casillas was inside the house and appellant was outside. 

Appellant hit Casillas about three times in the head and when appellant inflicted the first 

blows, Casillas’s head was hitting a wall. 

After Casillas exited his house appellant quickly struck him multiple times with 

both fists as if he wanted to knock Casillas out. Casillas felt dizzy and fell. Casillas bled 

profusely from his nose and mouth, his face and mouth were swollen, and cuts on his lip 

lasted perhaps four days. We conclude there was sufficient evidence to convince a rational 

trier of fact, beyond a reasonable doubt, when appellant repeatedly struck Casillas the first 

few times with appellant’s fist while Casillas was inside his house, appellant “enter[ed]” 

the house within the meaning of Penal Code section 459.

As to appellant’s intent upon the entries, in People v. Kwok (1998) 63 Cal.App.4th 

1236, 1245, the court stated, “Because intent is rarely susceptible of direct proof, it may be 

inferred from all the facts and circumstances disclosed by the evidence.” Appellant’s

above mentioned entries into Casillas’s house as established by the People’s evidence were 

nonconsensual and unlawful. Burglarious intent reasonably may be inferred from an 

unlawful entry alone. (People v. Martin (1969) 275 Cal.App.2d 334, 339; People v. Wolfe

(1967) 257 Cal.App.2d 420, 425.) For this independent reason, we conclude appellant’s 

entries into Casillas’s house were accompanied by burglarious intent.

Moreover, Casillas testified appellant repeatedly struck Casillas with appellant’s fist 

while Casillas was inside, and appellant was outside, Casillas’s house, causing Casillas’s 

head to strike the wall. Appellant continued the assault after Casillas stepped outside, with 
9

consequent injuries to Casillas. “Punishment under [Penal Code] section 245, subdivision 

(a), is directed at the force used, and it is immaterial whether the force actually results in 

any injury. The focus is on force likely to produce great bodily injury. [Citation.]” 

(People v. Parrish (1985) 170 Cal.App.3d 336, 343, italics added.) 

We conclude there was sufficient evidence to convince a rational trier of fact, 

beyond a reasonable doubt, when appellant entered the house with his right hand and right 

foot as previously discussed, and when appellant entered by repeatedly striking Casillas 

the first few times with appellant’s fist while Casillas was inside his house, appellant 

entered with intent to commit upon Casillas assault by means of force likely to produce 

great bodily injury.

Further, “the taking of any item of personal property of even slight intrinsic value 

can constitute larceny in California.” (People v. Martinez (2002) 95 Cal.App.4th 581, 586 

(Martinez).)4 Casillas, by trying to close the screen door, indicated to appellant that 

Casillas was not going to comply with appellant’s repeated demands for water. Appellant 

began pulling the screen door the other way, resisting Casillas’s effort to close it, and 

appellant later entered the house by striking Casillas while Casillas was still inside. 

We conclude based on all the evidence there was sufficient evidence to convince a 

rational trier of fact, beyond a reasonable doubt, when appellant committed the above 

discussed entries into Casillas’s house, appellant intended to commit larceny by stealing 

water inside.

5

 Sufficient evidence supported appellant’s burglary conviction (count 1).

6

 

4 Martinez concluded the intent of the defendant in that case to take a shower in a 

person’s house without authorization was an intent to commit larceny because the defendant 

intended without authorization to use, and thus consume, the person’s soap products, 

shampoo, and water. (Martinez, supra, 95 Cal.App.4th at pp. 584-586.) Martinez rejected the 

defendant’s argument “the ‘miniscule amount’ of soap, shampoo and water used are not of 

sufficient value to qualify as property.” (Id. at p. 585.)

5 To the extent appellant argues there was insufficient evidence he intended to commit 

larceny because he was voluntarily intoxicated, we note that even if there was substantial 

evidence appellant was voluntarily intoxicated, there was no substantial evidence he was 

intoxicated to the point he failed to formulate an intent to commit larceny. (Cf. People v. 

Marshall (1996) 13 Cal.4th 799, 848; People v. Ivans (1992) 2 Cal.App.4th 1654, 1661-1662.)
10

2. The Trial Court Did Not Err by Failing to Instruct on Attempted Burglary.

Appellant claims the trial court erred by failing to instruct sua sponte on attempted 

burglary as a lesser included offense of burglary.7 He argues there was substantial 

evidence (1) he did not enter the house, (2) he lacked intent to commit assault with force 

likely to produce great bodily injury at the time of any entry, and (3) he lacked “the 

required felonious intent” at any entry because he was under the influence of drugs. We 

reject appellant’s claim.

If, as appellant suggests, the evidence established only that appellant attempted to 

enter Casillas’s house without intent to commit assault with force likely to produce great 

bodily injury entry,8and without “the required felonious intent” because he was under the 

influence of drugs, then there was no evidence he committed attempted burglary because 

there was no evidence of burglarious intent. To that extent, there was no need for the trial 

 

6 To the extent appellant argues the trial court erroneously denied his motion for a 

judgment of acquittal (made after the close of the People’s evidence) as to his burglary count, 

our analysis applies to that argument as well since our analysis relies only on the People’s 

evidence. (See People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) Accordingly, the trial 

court properly denied appellant’s motion for a judgment of acquittal. Finally, to the extent 

appellant argues as an independent issue there was insufficient evidence supporting his 

conviction on count 2, he waived the issue by raising it for the first time in his reply brief. 

(Cf. People v. Jackson (1981) 121 Cal.App.3d 862, 873.) Moreover, in light of the evidence 

recited in our Factual Summary, including the evidence appellant delivered multiple blows to 

Casillas’s head, the initial blows were causing Casillas’s head to hit a wall, appellant was 

using both of his fists in an effort to knock Casillas unconscious, and Casillas fell, there was 

substantial evidence supporting appellant’s conviction on count 2. (See People v. Aguilar

(1997) 16 Cal.4th 1023, 1028; Ochoa, supra, 6 Cal.4th at p. 1206; People v. Armstrong (1992) 

8 Cal.App.4th 1060, 1065-1066; In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162.)

7

“California law requires a trial court, sua sponte, to instruct fully on all lesser 

necessarily included offenses supported by the evidence.” (People v. Breverman (1998) 

19 Cal.4th 142, 148-149 (Breverman).) We review error on this issue for prejudice under the 

standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836. (Breverman, at p. 149.)

8 Appellant argues Casillas’s alleged preliminary hearing testimony Casillas was able to 

close his front door before appellant started hitting him (see fn. 2, ante) was substantial 

evidence appellant lacked intent to commit assault by means of force likely to produce great 

bodily injury.
11

court to instruct on attempted burglary because there was no substantial evidence to 

support that instruction. 

In light of appellant’s arguments he lacked intent to commit assault with force 

likely to produce great bodily injury, and lacked intent to commit a felony, his instructional 

claim the trial court erred by failing to instruct on attempted burglary implicitly concedes 

there was substantial evidence he attempted to enter Casillas’s house with intent to commit 

larceny. Appellant, relying solely on Casillas’s defense testimony at trial that, at the 

preliminary hearing, Casillas denied any part of appellant’s body was inside Casillas’s 

house, argues there was substantial evidence he did not enter; therefore, there was 

substantial evidence he only attempted to enter with intent to commit larceny.

We assume without deciding that, as argued by appellant, there was substantial 

evidence he only attempted to enter Casillas’s house with intent to steal, and the trial court 

erred by failing to instruct sua sponte on attempted burglary as a lesser included offense of 

burglary. However, we must review the matter for prejudice.

As mentioned, the sole evidence on which appellant relies to argue he did not enter 

Casillas’s home was Casillas’s denial testimony. However, Casillas substantially qualified 

that denial. He testified as a defense witness he thought the magistrate “was referring to 

like part of the body, maybe the whole body, maybe half the body, not like just the hands 

or the foot.” That testimony, reasonably understood, was Casillas thought the magistrate 

was referring to a substantial portion, such as half, of appellant’s body. Casillas did not 

think the magistrate was referring merely to a hand, foot, or fingertip. As a matter of the 

credibility of this qualifying testimony, the jury essentially had only to decide whether it 

was true or a fabrication. The jury, having convicted appellant of burglary, implicitly 

found true this qualifying testimony.

Moreover, the prosecutor at trial elicited clarifying testimony from Casillas that, at 

the preliminary hearing, he testified about (1) appellant’s foot, (2) the fact appellant was 

trying to enter, and (3) the middle of the door, i.e., testimony corroborating Casillas’s 

denial was qualified. Casillas testified at trial the “little snippet” of his preliminary hearing 

testimony appellant’s trial counsel had read at trial did not accurately reflect Casillas’s 
12

preliminary hearing testimony. During redirect examination by appellant at trial, Casillas 

made clear he was certain appellant’s right foot was “crossing” and any uncertainty related 

only to whether appellant’s right foot crossed “maybe half or maybe more than half.” 

There was ample evidence from the People’s case appellant’s right hand, right foot, and 

fist entered Casillas’s house, and, at the time of the entries, appellant intended to commit 

assault by means of force likely to produce great bodily injury,9and intended to steal. 

In sum, even if there was substantial evidence appellant only attempted to enter 

Casillas’s house with intent to steal, the rest of the evidence in this case provided such 

ample evidence appellant entered with intent to commit assault by means of force likely to 

produce great bodily injury, and with intent to steal, it is not reasonably probable a 

different result would have occurred if the court had instructed on attempted burglary as a 

lesser included offense of burglary.10 The alleged instructional error was not prejudicial. 

(See Breverman, supra, 19 Cal.4th at p. 149.)

 

9 Casillas’s trial testimony about his preliminary hearing testimony (see fns. 2 and 8, 

ante) concerning whether he was able to close the front door before appellant started hitting 

him was equivocal, and Casillas testified at trial to the effect said preliminary hearing 

testimony did not reflect what had happened and appellant had begun hitting Casillas before 

Casillas closed the door. Casillas’s preliminary hearing testimony conveys the impression he 

was less focused on whether he was able to close the door before appellant started hitting him 

and more focused and thankful he was able to close it to protect his children. Even if 

Casillas’s preliminary hearing testimony about closing the door was substantial evidence he 

lacked intent to commit assault by means of force likely to produce great bodily injury, there 

was, as we previously have discussed, ample evidence of that intent.

10 We realize, as appellant observes, the jury requested a readback of testimony and later 

indicated it was deadlocked on the burglary charge, and the jury reached a verdict on that 

charge only after the court told the jury to continue deliberating. However, the jury requested 

a readback of testimony pertaining only to whether Casillas “was inside the house when the 

first punch was thrown.” This suggested that, at the time of the jury’s request, the jury was 

focusing on whether appellant entered Casillas’s house by reaching into it and striking Casillas 

with a single blow, and not on the ample and previously discussed evidence: (1) appellant 

repeatedly hit Casillas while Casillas was inside his house, (2) appellant’s right hand entered 

when he grabbed the doorframe, (3) appellant’s right foot entered, and (4) appellant, at the 

time of the entries, intended to commit assault by means of force likely to produce great 

bodily injury, and intended to steal. Moreover, the court observed the jury had deliberated for 

a total of less than two hours before it requested the readback, the court then excused the jury 
13

3. Appellant’s Trial Counsel Did Not Provide Ineffective Assistance of Counsel.

Appellant claims his trial counsel provided ineffective assistance of counsel by 

failing to request an instruction on attempted burglary as a lesser included offense of 

burglary. We disagree. The record sheds no light on why appellant’s trial counsel failed 

to act in the manner challenged, the record does not reflect said counsel was asked for an 

explanation and failed to provide one, and we cannot say there simply could have been no 

satisfactory explanation. We reject appellant’s ineffective assistance claim. (See People v. 

Slaughter (2002) 27 Cal.4th 1187, 1219; People v. Ledesma (1987) 43 Cal.3d 171, 216-

217.)

Moreover, our analysis in parts 1 and 2 of our Discussion provides satisfactory 

explanations why appellant’s trial counsel did not request an attempted burglary 

instruction. As a matter of tactics, appellant’s counsel reasonably might have wanted to 

present the jury with an all-or-nothing choice of convicting or acquitting appellant of 

burglary. Appellant’s counsel reasonably could have concluded the jury would not have 

convicted appellant merely of attempted burglary by relying on the evidence appellant now 

argues would have supported such a conviction.

 

for the day, the jury heard the 10-minute readback the next morning and resumed 

deliberations, and within 15 minutes told the court the jury was deadlocked. That is, the court 

ordered the jury to continue deliberating because the court felt the jury had not spent sufficient 

time deliberating.
14

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KITCHING, J.

We concur:

KLEIN, P. J. ALDRICH, J.