Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Super.Ct.No. FVA26530
Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, Theodore M. Cropley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant Micah Kelly sold five counterfeit CD’s to an undercover police officer for $20 and was sentenced to life in prison.
Specifically, defendant was charged with two counts of failure to disclose the origin of a recording or audiovisual work, a violation of Penal Code section 653w, subdivision (a). It was further alleged that the violations were felonies under section 653w, subdivision (b)(1). Defendant was also charged with one count of counterfeit of a registered mark, a violation of section 350, subdivision (a)(2).
According to the prosecutor, the first count concerned the sale of CD’s, while the second count concerned the sale of DVD’s.
All further statutory references will be to the Penal Code unless otherwise indicated.
The amended information alleged that defendant had sustained two prior qualifying convictions, making this a third-strike case. The first prior conviction was a 1998 robbery conviction. (§ 211.) The second prior conviction was a 1998 conviction for participation in a criminal street gang. (§ 186.22, subd. (a).)
Three prior prison term convictions were alleged under Penal Code section 667.5, subdivision (b). In addition to the strike convictions, it was alleged that defendant had been convicted in 2002 and served a prison term for violating Health and Safety Code section 11378.5.
A jury convicted defendant on count 1, a violation of section 653w, subdivision (a), and acquitted him on the remaining two charges. After a court trial, the court found the two prior strike allegations were true, and two prior prison term allegations were true. The trial court then denied defendant’s motion to dismiss the strike priors under People v. Superior Court (Romero)(1996) 13 Cal.4th 497.
One prior prison term allegation was dismissed at sentencing.
Defendant was sentenced to an indeterminate term of 25 years to life under the three strikes law. Two consecutive one-year terms were imposed under section 667.5, subdivision (b), for a total sentence of 27 years to life.
On appeal, defendant contends that (1) the jury was misinstructed on the elements of the offense; (2) the trial court erroneously excluded relevant evidence; (3) the trial court erred in denying defendant’s motion to replace his court appointed counsel; (4) the trial court abused its discretion in refusing to strike at least one of his prior strike convictions; and (5) defendant was deprived of his right to effective assistance of counsel at sentencing. Finding merit in the first contention, we do not address the remaining contentions.
I
FACTS
Detective Shauna Bragg of the San Bernardino Police Department testified that she was assigned to investigate the sale of counterfeit CD’s and DVD’s at a strip mall in Rialto. On March 21, 2006, she went to the strip mall as an undercover officer. After inquiring at two businesses, she was directed to a barber shop.
She entered the barber shop and told defendant that she wanted to buy DVD’s. Defendant replied that another person sold the DVD’s, but he did have CD’s for sale. Defendant then went to the back of the store and opened a large cabinet. The officer saw at least 1,000 CD’s in the cabinet in paper CD cases. The artist’s name and the title of the album were written on each CD, but the name and address of the manufacturer was not. Defendant sold the officer five CD’s for $20.
A private investigator employed by the Recording Industry Association of America subsequently testified that the CD’s were counterfeit.
The next day, the barber shop was searched pursuant to a warrant. Detective Jeffrey Harvey testified that he found 1,927 CD’s in the cabinet Detective Bragg had described. He also found approximately 444 counterfeit DVD’s in a locked cabinet next to the first cabinet. Other CD’s were recovered from a truck belonging to defendant.
Detective Bryan Lentz testified that he interviewed defendant. Defendant told him that he had sold CD’s two or three other times, for a total of 11 CD’s. He also told the officer that he knew the CD’s were counterfeit, and he had kept the $20. Defendant stated that the CD’s belonged to another person, later identified as Robert Trongale.
Trongale was the sole defense witness. He testified that he worked as a receptionist at the barber shop. Defendant had worked at the barber shop for 10 or 12 days prior to the undercover purchase of CD’s. Following defendant’s arrest, Trongale and an attorney went to Detective Lentz and told the detective that the officers had arrested the wrong person because Trongale had made and sold the CD’s. They were not the defendant’s property, and Trongale did not tell defendant they were counterfeit.
Trongale also testified that he had asked defendant to sell CD’s to a specific customer while Trongale was at lunch. Defendant did not have authority to do what he wanted with the CD’s, and Trongale did not see defendant sell CD’s to any other customers. The sale to the officer was the only time that defendant had sold CD’s for Trongale. Trongale testified that defendant gave him the $20 received from the sale.
As a result of this interview, Trongale pled guilty to one count of violating section 350, subdivision (a)(2), counterfeit of a registered mark.
On October 25, 2007, defendant requested that we take judicial notice of Trongale’s plea agreement in San Bernardino Superior Court case No. FVA026530. Under that agreement, Trongale was granted probation on the condition that he spend 180 days in the county jail. By order filed November 15, 2007, we reserved ruling on the request for consideration in this appeal. There being no objection by the People, we now grant the request and take judicial notice of the materials attached to defendant’s motion.
As noted above, the jury convicted defendant of one count of violating section 653w, subdivision (a). It acquitted defendant of the remaining charges.
II
INSTRUCTIONAL ERROR
A. The Statute
The parties agree that the jury was improperly instructed on the elements of the crime described in former section 653w.
At the time of the offense, in March 2006, section 653w, subdivision (a) defined the crime of “[f]ailure to disclose origin of recording or audiovisual work” as follows: “A person is guilty of failure to disclose the origin of a recording or audiovisual work when, for commercial advantage or private financial gain, he or she knowingly advertises or offers for sale or resale, or sells or resells, or causes the rental, sale or resale, or rents, or manufactures, or possesses for these purposes, any recording or audiovisual work, the cover, box, jacket, or label of which does not clearly and conspicuously disclose the actual true name and address of the manufacturer thereof and the name of the actual author, artist, performer, producer, programmer, or group. This section does not require the original manufacturer or authorized licensees of software producers to disclose the contributing authors or programmers. [¶] As used in this section, ‘recording’ means any tangible medium upon which information or sounds are recorded or otherwise stored, including any phonograph record, disc, tape, audio cassette, wire, film, or other medium on which information or sounds are recorded or otherwise stored, but does not include sounds accompanying a motion picture or other audiovisual work. [¶] As used in this section, ‘audiovisual works’ are the physical embodiment of works that consist of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects such as films or tapes on which the works are embodied.” (Stats. 1997, ch. 303, § 1, p. 1851.)
Subdivision (b) of section 653w, as amended in 1997, provided: “Any person who has been convicted of a violation of subdivision (a) shall be punished as follows: [¶] (1) If the offense involves the advertising, offer for sale or resale, selling, rental, manufacturing, or possession for these purposes, of at least 1,000 articles of audio recordings or 100 articles of audiovisual works described in subdivision (a), the person shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in the state prison for two, three, or five years, or by a fine not to exceed two hundred fifty thousand dollars ($250,000), or by both. [¶] (2) Any other violation of subdivision (a) not described in paragraph (1), shall, upon a first offense, be punished by imprisonment in a county jail not to exceed one year, or by a fine not to exceed twenty-five thousand dollars ($25,000), or by both. [¶] (3) A second or subsequent conviction under subdivision (a) not described in paragraph (1), shall be punished by imprisonment in a county jail not to exceed one year or in the state prison, or by a fine not to exceed one hundred thousand dollars ($100,000), or by both.” (Stats. 1997, ch. 303, § 1, p. 1851.)
Some confusion in the trial court apparently occurred because the statute was amended in 2006. (Stats. 2006, ch. 9, § 1.) However, the parties now agree that the amendment was not effective until January 1, 2007, and it should not have been applied to this case.
The primary change in the 2006 amendment was to decrease the threshold amount of audio recordings described in section 653w, subdivision (b)(1) from 1,000 articles of audio recordings to 100 articles of audio recordings. (Stats. 2006, ch. 9, § 1.) Thus, under the 1997 version of the statute, possession for sale of less than 1,000 articles of audio recordings was a misdemeanor, while possession for sale of more than 1,000 articles of audio recordings was a “wobbler,” i.e. a crime which could be punished either as a misdemeanor or as a felony. (§ 17.) Under the 2006 amendment, possession for sale of less than 100 articles of audio recordings is a misdemeanor, while possession for sale of more than 100 articles of audio recordings is a wobbler.
We note that the prosecutor told the trial court at the preliminary hearing that possession of more than 1,000 articles of audio recordings was a felony, not a wobbler.
B. The Trial Court’s Instructions
The jury was instructed on the elements of the crime as follows: “The defendant is charged in Count 1 with Failure To Disclose The Origin Of A Recording Or AudioVisual Work. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant possessed a recording or audiovisual work; [¶] 2. The cover, box, jacket, or label of the recording or audiovisual work did not clearly and conspicuously disclose the actual true name and address of the manufacturer and the name of the actual author, artist, performer, producer, programmer, or group; [¶] 3. When the defendant possessed the recording or audiovisual work, he intended to sell it; [¶] AND [¶] 4. There were at least 100 articles of audio recordings or 100 articles of audiovisual works.” The terms “selling” and “recording” and “audiovisual work” were also defined. The jury was further instructed: “Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.”
C. The Errors in the Trial Court’s Description of the Crime
Defendant argues that the instructions were incomplete or wrong in describing the crime, or were based upon an improper legal theory, for the following reasons.
First, the instructions improperly applied the 2006 amendment to section 653w, subdivision (b)(1) by stating the wobbler threshold to be at least 100 articles of audio recordings instead of 1,000 articles, as provided in the 1997 version of the statute.
The People agree that the threshold amount was misstated as 100 rather than 1,000. They agree that in order for defendant “to be properly found guilty of a felony under section 653w, the prosecution needed to prove that there were at least 1,000 articles of audio recordings (CD’s).”
Second, the instruction stated that defendant only had to possess “a” recording that he intended to sell. According to defendant, the use of the term “[t]here were at least 100 articles of audio recordings” does not adequately convey the concept that defendant had to have possessed the CD’s with the intent to sell the requisite number of items. The People argue that any error in this regard was harmless.
Third, the threshold between a misdemeanor and a wobbler was stated to be at least 100 articles of audio recordings or 100 articles of audiovisual works. Since an identical instruction was given for count 2, the prosecutor stated in oral argument that count 1 applied to CD’s and count 2 applied to DVD’s. If so, defendant argues that the reference in the count 1 instruction to 100 articles of audiovisual works was incorrect and confusing: “[C]orrect instructions related to count 1 clearly should have referred only to audio recordings, not both recordings and audio visual works.”
Defendant cites Taylor v. Kentucky (1978) 436 U.S. 478, 488-489 [98 S.Ct. 1930, 56 L.Ed.2d 468] [arguments of counsel cannot substitute for instructions by the court].
Fourth, the jury was not instructed on the knowledge element of the crime because it was not informed that it had to find the defendant knowingly possessed improperly labeled CD’s. Since the names of the artists were on the CD’s, the jury would have had to find that defendant knew the actual true name and address of the manufacturers were not on the CD’s. The People agree that the jury instruction omitted this knowledge element but argue that the error was harmless.
Fifth, the jury was not instructed on the purpose element of the crime, i.e., the jury was not told that it had to find that defendant committed the offense for commercial or private financial gain. The People agree that the jury instruction omitted this element of the crime but again argue that the error was harmless.
Defendant argues that these errors deprived him of his right to a jury trial by relieving the prosecution of its burden to prove every element of the charged offense beyond a reasonable doubt. The People concede instructional error but argue that the errors were harmless beyond a reasonable doubt under the Chapman standard.
Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]: “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”
D. Were The Instructional Errors Reversible Per Se?
In People v. Flood (1998) 18 Cal.4th 470 (Flood), the court failed to instruct the jury on an element of the crime. The statute, Vehicle Code section 2800.3, referred to evading a pursuing police officer with serious bodily injury. The trial court neglected to instruct the jury that it had to find the pursuing officers were peace officers; instead, it told the jury that they were peace officers. (Flood, at p. 475.) Although our Supreme Court found constitutional error, it also found that the error was not structural error and was thus subject to harmless error analysis. (Ibid.) Citing Arizona v. Fulminante (1991) 499 U.S. 279 [111 S.Ct. 1246, 113 L.Ed.2d 302], the court found that the error was trial error subject to harmless error analysis. (Flood, at p. 493.)
The Flood court went on to discuss in detail more recent cases on the issue and noted. “[W]e agree with the Attorney General’s position that Johnson [v. United States (1997) 520 U.S. 461 [117 S.Ct. 1544, 137 L.Ed.2d 718]] suggests that an instruction to the jury that an element of the crime has been established generally is not reversible per se.” (Flood, supra,18 Cal.4th at p. 501.) Our Supreme Court therefore concluded that harmless error analysis in appropriate. (Id. at pp. 502-503.) Upon a Chapman analysis, the court concluded that the error was harmless beyond a reasonable doubt. (Flood, at p. 507.)
More recently, our Supreme Court held that “[a]n instructional error that improperly describes or omits an element of the crime from the jury’s consideration is subject to the ‘harmless error’ standard of review set forth in Chapman . . . . [Citations.]” (People v. Lamas (2007) 42 Cal.4th 516, 526.) The court went on as follows: “We thus consider whether it appears beyond a reasonable doubt that the instructional error did not contribute to the jury’s verdict. [Citation.] Applying the Chapman standard, we conclude that the trial court’s instructions regarding the third element of section 186.22(a) were prejudicial as to all three gang-related felony counts.” (Ibid.) Accordingly, prejudicial error was found because the trial court’s instructions failed to include an essential element of the crime charged. (Ibid.)
We therefore reject defendant’s contention that the errors were reversible per se, and we proceed to analyze the errors under the Chapman standard.
E. Were The Instructional Errors Prejudicial Under Chapman?
In applying Chapman, we are mindful of our Supreme Court’s conclusion in Flood: “Under the circumstances of the present case, reversing defendant’s conviction because of an instructional error concerning an uncontested, peripheral element of the offense, which effectively was conceded by defendant, was established by overwhelming, undisputed evidence in the record, and had nothing to do with defendant’s own actions or mental state, would erode the purpose and rationale of the harmless error doctrine and promote disrespect for the judicial system.” (Flood, supra, 18 Cal.4th at p. 507.)
Defendant argues that the converse must be true: When the jury fails to decide elements of the charged offense, and evidence in the record reveals a factual controversy on those elements or other relevant factors, the instructional error must be prejudicial. Defendant points out that he has a right to have a jury determine beyond a reasonable doubt every element of a charged crime. (People v. Cole (2004) 33 Cal.4th 1158, 1208; People v. Wims (1995) 10 Cal.4th 293, 303 [court has sua sponte duty to instruct on all elements of a crime].)
In this regard, defendant relies on our case of People v. Lewis (2006) 139 Cal.App.4th 874 (Lewis). In that case, we thoroughly discussed the prejudice issue and said: “When such error consists of a failure to instruct on an element of a charge or amounts to an instruction of a legally incorrect theory, the judgment must be reversed unless the People prove beyond a reasonable doubt that the error did not contribute to the verdict in the case at hand; one way to meet this burden is to show from the verdicts that the jury necessarily found all the elements required to convict under a proper theory. [Citations.]” (Id. at p. 884.)
We also said: “Here, the court not only omitted any instruction on the element of malice, but actually instructed the jury that it could find defendant guilty of murder based upon a legally invalid theory. Under federal or California law, a legally incorrect theory, if relied upon by the jury, cannot as a matter of law validly support a conviction. [Citations.] When the verdict is based upon a legally invalid theory, ‘reversal generally is required unless “it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.”’ [Citations.]” (Lewis, supra, 139 Cal.App.4th at p. 891.)
With this background, we examine the instructional errors in this case. The first error was the misstatement of the number of audio recordings which mark the boundary between a misdemeanor and a felony/misdemeanor wobbler. As noted above, the jury should have been told that the threshold was 1,000 audio recordings. Instead, it was told that the threshold was 100 audio recordings. Under the circumstances of this case, the distinction was crucial because the defendant would receive a life sentence if the crime was sentenced as a felony.
The People contend the error was harmless because there was overwhelming evidence that defendant had at least 1,000 audio recordings in his possession. They point to the testimony of the undercover detective who saw at least 1,000 audio recordings in the cabinet in the barber shop and the testimony of another detective who executed the search warrant and found 1,927 audio recordings in the cabinet. Since there were more than 1,000 audio recordings, the People contend this error was harmless.
But overwhelming evidence is not the same as uncontradicted evidence. The proper issue was whether defendant possessed over 1,000 CD’s for sale. Trongale testified that the CD’s were his and that he only asked defendant to sell five CD’s to a specific customer who was expected to arrive during Trongale’s lunch break. He also testified that he did not give defendant the authority to do what he wanted with all of the CD’s. Finally, Trongale testified that this was the only time he ever asked defendant to sell CD’s for him, and it was the only time that defendant did so. Although Trongale’s testimony was not particularly persuasive, it raised a factual issue as to the number of CD’s that the defendant was authorized to sell. (Evid. Code, § 411.) This issue was a crucial issue, and there is a reasonable possibility that the error might have contributed to the conviction in this case.
The error is particularly troubling in light of the next issue. As described above, the instruction only required the jury to find that defendant possessed a recording, and when he possessed the recording he intended to sell it. Under this instruction, defendant could be found guilty if he only possessed one CD for sale. The jury was not told that defendant had to possess 1,000 CD’s with the intent to sell them to constitute the offense described in count 1.
Clarity was not improved by the next sentence, which required the jury to find that there were at least 100 articles of audio recordings or 100 articles of audiovisual works. Was the jury therefore supposed to determine if 100 CD’s existed, or that defendant merely possessed them, or that defendant possessed them for sale, or that they were sold by defendant? It was also improper to include the reference to audiovisual works, because the DVD’s were supposedly the subject of count 2.
The People find the error harmless because the undercover detective’s testimony made it clear that she could have purchased any or all of the CD’s in the cabinet. While it is clear the detective could have purchased any of the CD’s, it is not at all clear that she could have purchased all of them. According to Trongale’s testimony, defendant was only authorized to sell a few CD’s to one customer.
The jury was not instructed on the knowledge element of the crime. The statute requires that the prosecution prove defendant knowingly possess audio recordings that do not disclose the name of the artist and the name of the manufacturer on the cover. Although the CD’s were labeled with the name of the artist, they did not list the name of the manufacturer. We agree with the People that this omission, standing alone, was harmless. The defendant knew the CD’s were counterfeit, and there is no suggestion in the evidence that he did not know that the name of the manufacturer was not on the cover of the CD’s.
The remaining element is more significant. The jury was not instructed on the purpose element of the crime because it was not told that it had to find the sale was for commercial or private financial gain. The People again find no prejudice from the error because they find overwhelming evidence that defendant sold the CD’s for his private financial gain.
But there was a significant factual issue in this regard. Trongale essentially testified that he asked defendant to sell CD’s to a customer as a favor to Trongale during Trongale’s lunch break. Although the officer testified that she had paid defendant $20 for the CD’s and defendant told the officer he had kept the money, Trongale testified that defendant gave him the $20 when Trongale returned from lunch. Thus, although the People find Trongale’s testimony “highly suspect,” there was a significant factual issue presented, and the jury should have been given the opportunity to decide whether defendant acted for financial gain.
Neither party directly discusses the cumulative effect of the several instructional errors. Nevertheless, we find that, even if one or more of the individual errors would be harmless standing alone, consideration of the number of errors, and the seriousness of the consequences, compels the conclusion that the instructional errors were not harmless beyond a reasonable doubt.
As we said in Lewis, supra, 139 Cal.App.4th 874: “The test is not whether a hypothetical jury, no matter how reasonable or rational, would render the same verdict in the absence of the error, but whether there is any reasonable possibility that the error might have contributed to the conviction in this case. If such a possibility exists, reversal is required.” (Id. at p. 887.) We also held: “[T]he judgment must be reversed unless the People prove beyond a reasonable doubt that the error did not contribute to the verdict in the case at hand . . . .” (Id. at p. 884; see also People v. Magee (2003) 107 Cal.App.4th 188, 194.)
In Lewis, we also discussed convictions on a legally incorrect theory and held, “When the verdict is based upon a legally invalid theory, ‘reversal generally is required unless “it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.”’ [Citations.]” (Lewis, supra, 139 Cal.App.4th at p. 891.)
We find a reasonable possibility in this case that the instructional errors contributed to the conviction. The instructional errors deprived the jury of the opportunity to find that the offense had not been committed because the missing elements had not been proven. The instructional errors also contributed to the verdict by misleading the jury as to the standards to be applied in determining whether the crucial threshold between a misdemeanor and a wobbler had been crossed.
Further, we find that the effect of the erroneous instructions was to allow defendant to be convicted on a legally incorrect theory. Since it is not possible to conclude that the jury necessarily convicted defendant on a correct legal theory, reversal is required on this additional ground. (Lewis, supra, 139 Cal.App.4th at p. 891.)
Accordingly, the instructional errors were not harmless. Prejudice is apparent, and reversal is required.
III
DISPOSITION
The judgment is reversed.
We concur: McKINSTER, Acting P.J., KING J.