Opinion
E052794 Super.Ct.No. RIF10005031
11-10-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHNATHAN DAVID OREN, Defendant and Appellant.
Doreen B. Boxer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and William M. Wood and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Ronald L. Johnson, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Doreen B. Boxer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and William M. Wood and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Johnathan David Oren was found in possession of a laptop computer stolen from a business. Defendant, who represented himself, was convicted by a Riverside County jury of one count of receiving stolen property. (Pen. Code, § 496, subd. (a).) Defendant requested immediate sentence and he was granted formal probation for three years with 120 days to be served in county jail (in a work release program).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant makes one claim on appeal that the trial court erred by failing to sua sponte instruct the jury with the mistake-of-fact defense instruction embodied in CALCRIM No. 3406.
I
FACTUAL BACKGROUND
A. People's Case-in-chief
Art Cerboni owned Global Cleaning Technology located in Riverside. When Cerboni arrived at work on July 12, 2010, he noticed the glass on the front door of his office was broken. Cerboni's two laptop computers were missing. Cerboni's video surveillance cameras showed that the previous night two people with flashlights broke the glass on the front door. They entered the office, took the laptops and other items, and then left the office. Cerboni did not recognize the men. One of the laptops taken by the two men was manufactured by Hewlett Packard and had a webcam on top. The laptop had three years of business information on it. Cerboni also had PayPal and eBay accounts on the laptop, which allowed him to buy items on the Internet.
On July 14, 2010, Cerboni received an e-mail message that he had made purchases using the online accounts, including an $839 cellular telephone, on that day. Cerboni did not make the purchases and stopped payment for the items ordered. According to the e-mail, the items were to be shipped to a person named "Johnny Ojamoney" at an address on Mission Inn Avenue in Riverside. Cerboni did not know Ojamoney and knew no one who lived at the Mission Inn Avenue address. Cerboni called law enforcement officers to report the transaction.
Riverside Police Detective Lisa Meier investigated the burglary and stolen laptops. Detective Meier reviewed the information from Cerboni's PayPal and eBay accounts and determined that the property purchased was to be delivered to 2582 Mission Inn Avenue in Riverside. Detective Meier conducted a search of Department of Motor Vehicle records and discovered that defendant was listed as living at that address. Detective Meier could find no information in the records for a person named Johnny Ojamoney. Detective Meier indicated that, based on her experience, a person who uses a false name usually chooses one that is close to his or her own name.
Detective Meier went to the Mission Inn Avenue location and defendant was living at the house. Detective Meier advised defendant that she was conducting a stolen property investigation. Defendant responded that he probably knew why she was there. Detective Meier described Cerboni's laptop to defendant and he led her to the laptop, which was on defendant's bed. There was a piece of black tape covering the webcam. Detective Meier surmised the tape was used to cover the camera to stop someone from remotely accessing the camera and seeing the person using the laptop.
Detective Meier was not a computer expert so she was not sure if someone could actually remotely access the computer.
Riverside Police Detective Daniel Koehler assisted in the investigation and interviewed defendant at the police station after he was arrested. Defendant told Detective Koehler that he bought the laptop on July 12 from an individual he knew only as "'Shorty,'" whom he believed to be an East Side gang member. Defendant did not know how to contact Shorty.
Defendant told Detective Koehler that he oftentimes fixed computers for people. He did see the information for Global Cleaning Technology on the computer but never called them to inquire whether their laptop had been stolen. He claimed to have gone to the Hewlett Packard Web site and put in the serial number to check if the laptop had been stolen, but nothing came up. Defendant also stated he had purchased the laptop for $180. He admitted that he deleted the Global Cleaning Technology information from the computer. Defendant at first thought the laptop may have been stolen, but when he checked the Web site and it was not listed as stolen, he was satisfied it was not stolen.
Detective Koehler testified that 90 percent of people do not write down the serial numbers on electronics and the numbers are rarely reported as stolen.
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Defendant told Detective Koehler when they seized the computer that he had put the black tape over the webcam. Detective Koehler indicated that defendant told him that the laptop was worth about $1,800. Detective Koehler thought it was suspicious that defendant would buy it for $180.
Cerboni was given back his laptop by law enforcement officials. There was black electrical tape covering the webcam. All of Cerboni's business information had been deleted from the computer.
B. Defense
Darlene Ramirez, who had been romantically involved with defendant for eight years, lived with defendant and helped him with his business of repairing computers, electronics, and telephones. Ramirez claimed that the first thing she and defendant did when they received Cerboni's laptop was to check the manufacturer's Web site to ensure it was not stolen. Ramirez claimed that someone came looking for the laptop after defendant was arrested. Ramirez then admitted that defendant may have bought the computer.
II
MISTAKE-OF-FACT DEFENSE INSTRUCTION
Defendant contends the trial court had a sua sponte duty to instruct the jury on the defense of mistake of fact.
A. Additional Factual Background
After the evidence was presented, the People volunteered to prepare the instructions and go over them with defendant. Defendant was unaware of what the instructions entailed, but the prosecutor agreed to discuss them with defendant. The prosecutor then noted at the next hearing that they had discussed the jury instructions and defendant had asked that the jury be instructed with CALCRIM No. 1751 regarding innocent intent as a defense to receiving stolen property. Defendant explained he was repairing the computer and intended to return it to the owner. Defendant claimed he did not know that the person who gave him the computer did not actually own it. The trial court agreed to give the first portion of CALCRIM No. 1751. No mistake-of-fact instruction was requested by defendant.
B. Analysis
There is no dispute that defendant did not ask for the instruction on mistake of fact. In criminal cases, "the sua sponte duty to instruct on all material issues presented by the evidence extends to defenses . . . ." (People v. Breverman (1998) 19 Cal.4th 142, 157.) The obligation to instruct on defenses is necessary if the defense is supported by substantial evidence and "'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citations.]" (People v. Barton (1995) 12 Cal.4th 186, 195.)
Here, defendant was convicted of receiving stolen property. (§ 496, subd. (a).) "To sustain a conviction for receiving stolen property, the prosecution must prove: (1) the property was stolen; (2) the defendant knew the property was stolen . . . ; and, (3) the defendant had possession of the stolen property. [Citations.]" (People v. Russell (2006) 144 Cal.App.4th 1415, 1425 (Russell))
Mistake of fact is an established defense. (Russell, supra, 144 Cal.App.4th at p. 1425.) Section 26 provides that: "All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Three—Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent." CALCRIM No. 3406, which essentially adopts the language in section 26, provides that the belief can be mistaken as long as the defendant reasonably believed it to be true. "Put another way, people do not act unlawfully if they commit acts based on a reasonable and honest belief that certain facts and circumstances exist which, if true, would render the act lawful. [Citations.]" (People v. Reed (1996) 53 Cal.App.4th 389, 396 [Fourth Dist., Div. Two].)
We review the record to determine whether defendant presented substantial evidence to support the claimed defense and thus require the trial court to give the jury the mistake-of-fact instruction sua sponte. (See People v. Federico (2011) 191 Cal.App.4th 1418, 1422 [Fourth Dist., Div. Two].)
Defendant relies on Russell, supra, 144 Cal.App.4th 1415 to support that he was entitled to the instruction. In Russell, the defendant took an old motorcycle that was outside a motorcycle repair shop by a trash dumpster. Defendant testified at trial he believed the motorcycle had been abandoned based on its condition and his understanding that the repair shop put all of the motorcycles in the shop after closing. (Id. at pp. 1421-1422.) Trial counsel did not request a mistake-of-fact instruction despite the fact that defendant's primary defense was that he did not know the motorcycle was a stolen vehicle as he believed it had been abandoned. (Id. at p. 1431.)
Defendant argued on appeal that the trial court had a sua sponte duty to instruct the jury on mistake of fact. The appellate court noted that the trial court "need not give the instruction if the evidence is minimal and insubstantial. [Citation.]" (Russell, supra, 144 Cal.App.4th at p. 1430.) The appellate court concluded that there was "substantial evidence" from which the jury could infer the defendant believed the motorcycle had been abandoned, including the defendant's own consistent testimony that he believed the motorcycle was abandoned, the condition and location of the motorcycle when it was taken, and the defendant had acted as though he was entitled to possess the motorcycle. (Id. at pp. 1430-1431.) The appellate court concluded the trial court had a sua sponte duty to instruct the jury with the mistake-of-fact instruction. (Id. at p. 1431.)
The evidence here that defendant believed the laptop was not stolen property was far weaker than in Russell. There was no substantial evidence to trigger a sua sponte duty to give the mistake-of-fact instruction. There is no dispute that while defendant was in possession of the laptop computer he saw that it contained information belonging to Global Cleaning Technology and that Cerboni's accounts were used to order items to be shipped to defendant's address. Defendant never tried to contact Global Cleaning Technology to determine if the laptop was stolen and he immediately deleted all of the business information. When Detective Meier arrived at defendant's home, he immediately advised her that he knew why she was there. Defendant told the police he had purchased the laptop from a gang member for $180, which was much less than it was worth. In addition, defendant admitted he had put black tape over the camera, which Detective Meier surmised, without objection, was to conceal that he had the laptop.
The only evidence that defendant did not have knowledge that the laptop was stolen was his statement to police after he was arrested that he had checked the Hewlett Packard Web site and it was not listed as stolen. Unlike in Russell, defendant did not consistently testify that he believed the laptop was not stolen property, and the minimal evidence that he checked Hewlett Packard to see if was stolen was substantially contradicted by the above evidence. The trial court is not required to give a sua sponte instruction on any evidence of mistake of fact; here, it was minimal and insubstantial.
Further, defendant requested CALCRIM No. 1751, which advised the jurors: "The defendant is not guilty of receiving stolen property if he intended to return the property to its owner or deliver the property to law enforcement when he bought, received, concealed, or withheld the property." This defense was different than the mistake-of-fact instruction, i.e., instead of purchasing the laptop for $180, he was only repairing the laptop, planning on returning it to the owner, and the trial court could conclude that such defense was inconsistent with a defense of mistake of fact. As such, the trial court was not obligated to instruct the jury with the mistake-of-fact instruction based on the minimal evidence supporting the instruction, and it was inconsistent with the defense theory that he was only repairing the laptop.
Even if we were to conclude that the trial court erred by failing to give a sua sponte instruction on the defense of mistake of fact, such error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; Russell, supra, 144 Cal.App.4th at pp. 1431-1433.) Other jury instructions given by the trial court were sufficient to inform the jury of the knowledge element of the offense, and that the jury could find defendant not guilty if they believed he did not know the laptop was stolen. The jury was instructed that the People had the burden of proving that defendant committed the criminal act with a particular mental state or intent. It was also instructed that: "If you conclude that defendant knew he possessed property and you conclude that the property had, in fact been recently stolen, you may not convict defendant of stolen property based on those facts alone. However, if you also find supporting evidence tends to show his guilt, then you may conclude that the evidence is sufficient to prove he committed the crime." (CALCRIM No. 376.) The jury was further instructed that in order to find defendant guilty, it must find that: "When defendant bought, received, concealed, or withheld or aided in concealing or withholding the property, he knew the property had been stolen." (CALCRIM No. 1750.) The jury clearly found that defendant had knowledge the laptop was stolen.
Defendant contends, and the appellate court found in Russell, that despite these instructions on the knowledge element, the jury was never instructed that "a good faith belief" that the laptop was stolen "would negate the knowledge element of the offense." (Russell, supra, 144 Cal.App.4th at p. 1433.) In Russell, the appellate court found that the failure to so instruct resulted in prejudicial error requiring reversal based on the strong evidence that the defendant believed the motorcycle had been abandoned. (Ibid.)
However, unlike in Russell, the evidence here that defendant knew the laptop was stolen was overwhelming. Defendant was in possession of the stolen laptop and had wiped it clean of Cerboni's information. During the time the laptop was in defendant's possession, access was made to Cerboni's PayPal and eBay accounts, and items were to be shipped to defendant's address. Defendant immediately was aware when the police arrived at his home what item they were looking to recover. Defendant had attempted to conceal that he had the laptop by placing black tape over the webcam and had changed his story regarding his possession of the laptop. Based on the foregoing, there is no reasonable probability that the jury would have come to a different result had it also been given an instruction on the defense of mistake of fact.
III
DISPOSITION
The judgment is affirmed in its entirety.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.