People v. Loftis CA4/3

Filed 11/13/13 P. v. Loftis CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G047778

v. (Super. Ct. No. 11HF2791)

DAVID LOFTIS and RODNEL KEVIN OPINION BELL,

Defendants and Appellants.

Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed. Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant David Loftis. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant Rodnel Kevin Bell.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendants David Loftis and Rodnel Kevin Bell were convicted by a jury of conspiracy to commit residential burglary (Pen. Code, §§ 182, subd. (a)(1), 459, 460, subd. (a); count 1), two counts of residential first degree burglary (Pen. Code, §§ 459, 460, subd. (a); counts 2 & 3), and attempted residential first degree burglary (Pen. Code, §§ 664, 459, 460, subd. (a); count 4). As to the burglary charged in count 3, the jury found a non-accomplice was present (Pen. Code, § 667.5, subd. (c)(21)). Loftis was sentenced to state prison for four years on each of counts 1 through 3, and two years on count 4, with each sentence running concurrently, for a total of four years. Bell was sentenced to four years in state prison on counts 1 and 2, running concurrently, 16 months on count 3, and eight months on count 4, with the latter two running consecutively, for a total of six years. On appeal, both defendants claim the trial court prejudicially erred by permitting prosecution witnesses to opine that defendants were committing residential burglary. Loftis also claims the court erred by failing sua sponte to instruct the jury on the elements of theft, which was the target crime for the burglary conviction. We agree the court erred in both respects, but conclude the errors were harmless. Accordingly, we affirm.