Opinion
NOT TO BE PUBLISHED
Superior Court County No. SA068656 of Los Angeles Harold Cherness, Judge
Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Rubidia Paredes appeals from the judgment following her conviction for receiving stolen property. (Pen. Code, § 496, subd. (a).) Imposition of sentence was suspended and Paredes was placed on three years formal probation. She contends that there was insufficient evidence to support her conviction and that, notwithstanding an instruction that she had to know the property was stolen, the trial court erred by failing to also instruct the jury on mistake of fact. She also challenges a probation condition as unconstitutionally vague and overbroad. We will strike the probation condition. Otherwise, we affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
On June 21, 2008, Paredes rented a Kia Sedona and a white Ford cargo van. On July 8, 2008, Eduardo Diaz, a driver for FedEx Freight (FedEx), made a delivery to the Apple store in the Century City mall in Los Angeles. He parked his truck in the designated loading area. During his delivery, Diaz discovered that approximately two pallets of merchandise to be delivered to the Apple store had been stolen from his truck. The merchandise was valued at $105,000.
Video surveillance cameras showed the Kia Sedona rented by Paredes drive into the loading area, followed a few minutes later by a white cargo van. The license number on the Sedona matched the license number of the Sedona Paredes had rented on June 21. The white cargo van was the same color and type as the Ford cargo van she had rented, but its license plate was not visible on the surveillance video.
Police searched Paredes' house pursuant to a warrant. Officers found boxed Apple iPods in one room and another opened iPod. All the iPods had serial numbers matching serial numbers of iPods stolen from the FedEx truck.
At trial, Paredes testified that she rented the Kia Sedona and Ford cargo van as a favor for her nephew Antonio Argueta who was living in her home at the time. She testified that she did not know the iPods in her house had been stolen or that the vehicles she rented would be used for an illegal purpose. She testified that Argueta told her he planned to "buy things wholesale" and take them to swap meets. She testified that she bought one iPod from Argueta for $50.
DISCUSSION
Substantial Evidence Supports Conviction
Paredes contends the evidence is insufficient to support her conviction for receiving stolen property because there is no substantial evidence that she had actual knowledge that the iPods in her possession had been stolen. We disagree.
In considering a sufficiency of evidence claim, we review the entire record in the light most favorable to the judgment to determine whether there is substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) It is the exclusive province of the jury to determine the credibility of witnesses, and we will uphold the judgment unless there is no substantial evidence to support the conviction under any hypothesis whatsoever. (People v. Smith (2005) 37 Cal.4th 733, 738-739; People v. Bolin (1998) 18 Cal.4th 297, 331.)
The elements of receiving stolen property are possession of property that is stolen, and knowledge that the property was stolen. (§ 496, subd. (a); People v. Land (1994) 30 Cal.App.4th 220, 223.) "The knowledge element... is normally proved not by direct evidence but by an inference from circumstantial evidence." (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1019.) Knowledge can be inferred by the defendant's failure to explain how he or she came to possess a stolen item, or the offer of an unsatisfactory explanation, or from suspicious circumstances concerning possession of the item. (Id. at pp. 1019-1020.) When possession has been established, corroboration on the issue of knowledge "need only be slight and may be furnished by conduct of the defendant tending to show his guilt." (In re Richard T. (1978) 79 Cal.App.3d 382, 388.) In other words, "knowing possession by a defendant of recently stolen property raises a strong inference of the other element of the crime: the defendant's knowledge of the tainted nature of the property. This inference is so substantial that only 'slight' additional corroborating evidence need be adduced in order to permit a finding of guilty." (People v. Anderson (1989) 210 Cal.App.3d 414, 421.)
Section 496, subdivision (a) provides that the offense of receiving stolen property is committed by: "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained...."
Here, Paredes offered an explanation for her possession of the stolen iPods and asserted that she did not know they were stolen. But, the circumstances as a whole were suspicious and permitted a reasonable inference that she had knowledge the iPods had been stolen. She had rented the trucks used in the theft for three weeks paying a total of approximately $2,000 in rental charges. Several iPods, not just one, were found in her possession, and they remained in shipping boxes which the FedEx truck driver described in his trial testimony as having the appearance of stolen items. And, the $50 price she claimed she had paid to buy one of the iPods is a suspiciously low price. Also, her testimony that her nephew told her he intended to use the rented trucks to "buy things wholesale" for resale at swap meets was vague and unverifiable. In addition, the record shows no reasonable basis for Paredes to believe that her nephew was in the business of reselling merchandise bought at wholesale prices.
No Instructional Error Regarding Mistake of Fact
Paredes contends that the trial court erred by failing to instruct the jury that a mistake of fact constitutes a defense. Again, we disagree.
The version of the CALCRIM No. 3406 "Mistake of Fact" instruction Paredes argues should have been given would have provided: "The defendant is not guilty of receiving stolen property if she did not have the intent or mental state required to commit the crime because she did not know a fact or mistakenly believed a fact.
The trial court has a sua sponte duty to instruct on the general principles of law closely connected to the evidence and necessary for the jury's understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This duty extends to defenses supported by substantial evidence if the defendant is relying on the defense or the defense is not inconsistent with the defendant's theory of the case. (People v. Russell (2006) 144 Cal.App.4th 1415, 1424 (Russell).) Substantial evidence means evidence that, if believed, would be sufficient for a reasonable jury to find a reasonable doubt as to the defendant's guilt. (People v. Salas (2006) 37 Cal.4th 967, 982–983.)
Mistake of fact is an established defense to a criminal charge. (Russell, supra, 144 Cal.App.4th at p. 1425.) A person who acts under a mistake of fact that would disprove criminal intent is excluded from the class of persons who are capable of committing crimes. (§ 26, subd. Three.) The mistake-of-fact instruction set forth in CALCRIM No. 3406 is premised on section 26, which excludes "[p]ersons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent" from the category of persons capable of committing crimes. (Ibid.)
In Russell, the court held that the trial court prejudicially erred by not instructing on mistake of fact in a case where the defendant was charged with receiving stolen property, and presented "relatively strong" evidence that he mistakenly believed the property, a motorcycle, had been abandoned. (Russell, supra, 144 Cal.App.4th at p. 1433.) This evidence included the poor condition of the motorcycle, the fact that the defendant found it parked near trash bins by a repair shop (id. at p. 1421), testimony that a repair shop employee told the defendant the motorcycle had not been left for repair, and evidence that the defendant attempted to contact the registered owner. (Id. at pp. 1422-1423.)
In the instant case, the evidence that Paredes acted on the basis of a mistake of fact was far weaker than in Russell, and insufficient to require the jury instruction. When asked whether she knew that the iPods were stolen, Parades simply stated "I did not know anything regarding that." There was no other evidence to support her claim other than her testimony that her nephew told her he was buying merchandise wholesale for the purpose of resale at swap meets.
The Russell court emphasized that a pinpoint instruction on mistake of fact would have clarified that a good faith belief, even if not reasonable, would be sufficient to negate the knowledge element of the offense. (Russell, supra, 144 Cal.App.4th at p. 1433.) The court stated that the mistake of fact instruction would have "drawn the jury's attention to facts" that could raise a reasonable doubt regarding Paredes' guilt. (Ibid.) Here, unlike in Russell, there was no substantial evidence to support any mistake of fact and no sua sponte duty to instruct on that matter. (See People v. Salas, supra, 37 Cal.4th at pp. 982–983.)
Further, 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 not find Paredes guilty if it believed her testimony that she did not know the property was stolen. The trial court instructed the jury that the People had to prove guilt beyond a reasonable doubt, and in deciding whether the People satisfied its burden, the jury "must impartially compare and consider all the evidence that was received throughout the entire trial." (CALCRIM No. 220.) The court also instructed that the offense of receiving stolen property requires "proof of the union, or joint operation, of act and wrongful intent, " that the defendant "must not only intentionally commit the prohibited act, but must do so with a specific intent, " and that the "act and the specific intent required are explained in the instruction for that crime." (CALCRIM No. 251, italics added.) The instruction for the crime of receiving stolen property states, in relevant part, that the People must prove that the defendant "knew that the property had been stolen." (CALCRIM No. 1750.)
In other words, the jury was instructed that, to find Paredes guilty, it must find beyond a reasonable doubt, taking all the evidence into consideration, that she received and possessed stolen property and knew that the property was stolen. The evidence the jury was required to consider in reaching this conclusion is the same evidence the jury would have considered in determining the defense that she mistakenly believed the property belonged to her nephew and was not stolen had the jury been instructed on that defense. The jury's verdict necessarily would have been the same with or without being instructed on the defense of mistake of fact. Moreover, the record shows that argument by both prosecution and defense counsel emphasized that the prosecution had the burden of proving Paredes had actual knowledge the property was stolen.
During oral argument defense counsel claimed the prosecutor told the jury that a conviction was warranted if Paredes knew or should have known the property was stolen. The record does not support this claim.
Even if the trial court erred in not giving the mistake of fact instruction, the error was harmless for the same reasons under the applicable Watson test. (People v. Watson (1956) 46 Cal.2d 818; Russell, supra, 144 Cal.App.4th at pp. 1431-1433; People v. Zamani (2010) 183 Cal.App.4th 854, 866-867.) The jury instructions as given permitted a conviction only if Paredes actually knew the iPods were stolen. We see no reasonable probability that a jury would have come to a different result had it also been given an instruction on the defense of mistake of fact.
Probation Condition Must Be Stricken
Paredes contends that a condition of her probation requiring her to "[n]ot associate with/stay away from victim Fed-Ex trucks" is unconstitutionally vague and overbroad and must be stricken. We agree.
A probation condition is unconstitutionally vague unless it is "'... sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.'" (In re Sheena K. (2007) 40 Cal.4th 875, 890.) To avoid unconstitutional overbreadth, a probation condition must closely tailor its limitations to the purpose of the condition and the probationer's rehabilitation. (Ibid.) A claim that a probation condition is unconstitutionally vague or overbroad may be reviewed on appeal without an objection in the trial court if it is capable of correction without reference to the particular sentencing record in the trial court. (Id. at pp. 878-879, 888-889.)
Here, Paredes argues that the "not associate/stay away from victim Fed-Ex trucks" is unconstitutionally vague and overbroad because it is not sufficiently precise to know what conduct is permitted or prohibited, and because the condition is not reasonably tailored to her rehabilitation. As examples of its deficiencies, Paredes states that the probation condition specifies no distance she must stay away from FedEx trucks, or the nature of the prohibited association. She asserts that she could be in violation if she was driving behind a FedEx truck in traffic, if a FedEx truck made a delivery at her place of employment, or if she bought a product that the seller ships to her home via FedEx.
Although a probation condition may not be unconstitutional merely because a probationer can conjure up extreme and highly unlikely examples of how it could be interpreted by a diabolical probation officer, a probation condition cannot delegate to a probation officer unfettered discretion to determine its scope. (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1354, 1358.) The trial court "may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation, " but a probation condition cannot be "entirely open-ended." (Id. at pp. 1358-1359.)
As a practical matter, the problem with the challenged condition is that it simply does not apply to the facts of this case. A probation condition requiring a probationer to "stay away" from or not "associate" with certain people or places is commonly used in drug cases, gang cases, and certain other types of cases. In such cases, the condition relates to the nature or cause of the probationer's crime such as gang activity or drug possession, or to the class of persons who would be a source of temptation to the probationer such as gang members and drug users. Also, a "stay away" or "no association" probation condition might reasonably be imposed to protect the actual victims of the probationer's crime.
Here, the condition requires Paredes to stay away from trucks belonging to a business corporation, not a person or class of persons related to the probationer's crime.
FedEx is a huge company with a huge number of trucks that deliver merchandise to businesses and homes throughout the nation. They are commonly seen on streets and parked near businesses and residences. The probation condition is open-ended and it would be virtually impossible for Paredes or her probation officer to develop or implement a reasonable interpretation of the condition.
DISPOSITION
The probation condition requiring appellant to "not associate with/stay away from victim Fed-Ex trucks" is hereby stricken from the judgment. The judgment is otherwise affirmed.
We concur: GILBERT, P.J., YEGAN, J.
If the defendant's conduct would have been lawful under the facts as she believed them to be, she did not commit receiving stolen property.
If you find that the defendant believed that [insert alleged mistaken facts], she did not have the specific intent or mental state required for receiving stolen property.
If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for receiving stolen property, you must find her not guilty of that crime."