Irizarry

Richard Lee Irizarry appeals from the judgment entered following a jury trial resulting in his conviction for first degree burglary, with court findings he had two prior felony convictions for which he had served separate prison terms. (Pen. Code, §§ 459, 667.5, subd. (b).)

Appellant contends: I. “The trial court erred in refusing appellant’s request for instruction on unauthorized entry of property as a lesser related offense.” n. “Appellant’s presence at the readback of testimony could not be waived by counsel” and “[t]he failure to obtain [a] waiver of [appellant’s] presence was not harmless beyond a reasonable doubt.”

Facts and Proceedings Below

Prosecution Evidence

Viewing the evidence in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [ 26 Cal.Rptr.2d 23 , 864 P.2d 103 ]), in January of 1994, Charles Mannak lived at 43931 Delgado Court in Lancaster. His residence had an attached garage. During the evening of January 12, 1994, Mannak closed the garage door from the inside with his automatic garage door opener and entered his residence through the door leading from the garage’s interior into the residence. The large garage…