Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge, Super. Ct. No. SCN190742
AARON, J.
I.
INTRODUCTION
A jury found Robert E. Taylor guilty of nine counts of theft (Pen. Code, § 484). With respect to each count, the jury found that Taylor had previously suffered two prior burglary (§ 459) convictions within the meaning of section 666. In addition, the jury found that Taylor had suffered six prison priors (§ 667.5, subd. (b)) and a strike prior (§§ 667, subds. (b)-(i), 1170.12). Taylor admitted that he committed the charged offenses while on bail (§ 12022.1, subd. (b)) in another case.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
The trial court sentenced Taylor to 21 years four months in prison in this case. On count 1, the court sentenced Taylor to four years eight months, comprised of the low term of 16 months doubled to two years eight months because of the strike prior, plus an additional consecutive term of two years for the section 12022.1, subdivision (b) enhancement for committing the offenses while on bail in another case. On counts 2 through 9, the court imposed sentences of one year four months each, to be served consecutively to each other and to the sentence imposed on count 1. The court stayed the on-bail enhancements as to counts 2 through 9, pursuant to section 654. The court imposed an additional consecutive six-year sentence for the six prison priors.
The trial court also imposed a four-year sentence in another case (People v. Taylor (SCN 173370, app. pending)) (SCN 173370), to be served consecutively to the sentence in this case. Taylor filed an appeal in SCN 173370. We ordered that appeal to be considered with the appeal in this case. We affirm the judgment in SCN 173370 by way of a separate opinion that we file simultaneously with this opinion.
On appeal, Taylor claims that the trial court erred in failing to instruct the jury pursuant to a pinpoint instruction his attorney requested concerning the defense of mistake of fact, which was the defense Taylor presented at trial. Taylor also claims that the trial court violated his right to a jury trial under Cunningham v. California (2007) ___ U.S. ___, 127 S.Ct. 856 (Cunningham) by imposing consecutive sentences based on facts not found by the jury. We affirm the judgment.
II.
FACTUAL BACKGROUND
A. The People's evidence
On October 5, 2004, Taylor began working as a quarryman for National Quarries (National). Taylor, along with two other quarrymen, Raymond Barnhart and Abel Lara, worked under the supervision of Lenvel Barzee, National's operations manager.
Abel Lara's full name is Abel Garcia Lara, and several of the witnesses referred to him at trial as Abel Garcia. We refer to him as "Lara" throughout this opinion.
National had an account with Shuster Oil (Shuster) for the purchase of gas. Shuster issued credit card sized cards to National, which could be used to pay for gas at Shuster's gas stations. Shuster would then bill National on a bimonthly basis, for purchases made with the cards. Neither Taylor, Barnhart, nor Lara were authorized to purchase gas from Shuster using the cards issued to National.
Jenee Quiram was the officer manager for National. Quiram had worked for National since 2000. During that time period, she was aware of only two Shuster gas cards that had been issued to National, both of which Barzee kept in his possession. In a Shuster account statement that Quiram received on approximately December 6, 2004, Quiram discovered that several purchases had been made on a third gas card, the existence of which she had been previously unaware. The purchases were made on various dates in late November. The card had been issued to a previous owner of National, who sold the company in January 2000. The next Shuster statement reflected three additional purchases charged to the gas card in question on December 2.
Upon investigating the purchases, Barzee learned that Barnhart had previously seen a gas card in the glove compartment of a truck owned by National. Barnhart left the gas card in the glove compartment of the truck. Quiram subsequently viewed surveillance video of Shuster's gas pumps, which Shuster provided. The video showed Taylor using the gas card to make purchases.
Taylor used the card to purchase fuel for his own truck as well as for other vehicles, including Lara's van. Lara said that he had given Taylor cash on three occasions, and that Taylor filled Lara's van with gas using the Shuster gas card. Taylor told Lara that he had obtained the card from a previous employer.
The last unauthorized purchase occurred on December 2. The last day that Taylor showed up for work at National was December 3.
B. The defense
Taylor admitted having suffered many prior convictions and having been incarcerated a number of times. Taylor also admitted that he had used the Shuster gas card to purchase gasoline. Taylor stated that Barnhart had given him the gas card in exchange for methamphetamine, and said that Barnhart had told Taylor on several occasions that Barnhart was the owner of the gas card. Taylor denied that he had told Lara that he had obtained the card from his previous employer.
Barnhart and Lara testified that they had used methamphetamine with Taylor on only one occasion, at Taylor's residence. Barnhart denied having given Taylor the gas card or having ever asked Taylor for methamphetamine, apart from the single occasion at Taylor's residence.
Taylor's wife, Victoria, testified that Barnhart had come to Taylor's room on four or five occasions to obtain methamphetamine.
III.
DISCUSSION
A. The trial court did not err in instructing the jury pursuant to a modified version of Taylor's requested pinpoint instruction regarding his defense of mistake of fact
Taylor claims that the trial court erred in instructing the jury pursuant to a modified version of a requested pinpoint instruction regarding his defense of mistake of fact. Taylor maintains that the modified instruction was not sufficient to replace the instruction he requested. We apply the de novo standard of review to Taylor's claim. (See People v. Posey (2004) 32 Cal.4th 193, 218 [stating that claims pertaining to jury instructions are reviewed de novo].)
1. Factual and procedural background
a. The jury instruction conferences
At a jury instruction conference during the trial, Taylor's counsel submitted a proposed jury instruction outside the presence of the jury. Taylor's counsel claimed that the proposed instruction pinpointed the theory of his defense. The proposed instruction stated:
"If one takes personal property of another with the good faith belief that he has permission to take the property, he is not guilty of theft. This is the case even if such good faith belief is unreasonable. The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict the defendant of theft."
At the time of the jury instruction conference, Taylor had not yet presented his defense. However, Taylor's counsel made an offer of proof to the effect that Taylor would testify that Barnhart had given him permission to use the gas card in exchange for methamphetamine. Citing People v. Navarro (1979) 99 Cal.App.3d Supp. 1 (Navarro), Taylor's counsel argued that Taylor had not committed a theft if he believed that he had "permission from the ostensible owner to use [the gas card]." The prosecutor objected to the instruction and noted that he had not yet had an opportunity to fully review the Navarro case. Taylor's counsel agreed that the prosecutor should be given an opportunity to review Navarro, and the court indicated that it would review the case as well.
The following day, the trial court stated that it had reviewed Taylor's requested pinpoint instruction with the parties in chambers, and that the court would provide a modified version of Taylor's requested instruction. The court explained that it had concluded that Taylor was entitled to an instruction pinpointing the defense theory of the case, but that the court had modified the instruction so that the instruction did not "sound argumentative." The court indicated that it would read the modified pinpoint instruction together with a modified version of CALJIC No. 4.35 regarding mistake of fact.
The prosecutor objected to the modified pinpoint instruction, but did not object to the court instructing the jury pursuant to CALJIC No. 4.35. Taylor's counsel objected to the court's refusal to instruct the jury with his proposed pinpoint instruction as drafted. Taylor's counsel argued that the language of the requested pinpoint instruction was not argumentative, and that Navarro supported the instruction.
b. The jury instructions
The trial court instructed the jury pursuant to modified versions of CALJIC Nos. 14.02 and 14.03 regarding the elements of theft by larceny as follows:
"Theft by larceny ─ Defined.
"Every person who steals, takes, carries, leads, or drives away the personal property of another with the specific intent to deprive the owner permanently of his or her property is guilty of the crime of theft by larceny.
"To constitute a 'carrying away,' the property need not be actually removed from the place or premises where it was kept, nor need it be retained by the perpetrator.
"In order to prove this crime, each of the following elements must be proved:
"One, a person took personal property of some value belonging to another.
"Two, when the person took the property he had the specific intent to deprive the alleged victim permanently of the property.
"Three, the person carried the property away by obtaining physical possession and control for some period of time and by some movement of the property.
"Theft intent.
"The specific intent which is an element of the crime of petty theft is satisfied by either an intent to deprive an owner permanently of his or her property, or to deprive an owner temporarily, but for an unreasonable time, so as to deprive him or her of a major portion of its value or enjoyment."
The trial court instructed the jury that the People were required to prove the charged offenses beyond a reasonable doubt pursuant to CALJIC No 2.90, as follows:
"A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.
"Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
With respect to Taylor's mistake of fact defense, the trial court instructed the jury pursuant to a modified version of Taylor's requested pinpoint instruction and CALJIC No. 4.35, as follows:
"Ignorance or mistake of fact.
"If one takes personal property of another with a good faith belief that he has permission from the owner to take the property, he is not guilty of theft.
"An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime.
"Thus a person is not guilty of a crime if he commits an act or omits to act under an actual belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful."
The Use Note to CALJIC No. 4.35 states, "In specific intent or mental state crimes, delete the bracketed phrase 'and reasonable,' which follows the phrase 'an actual' in CALJIC No. 4.35." During their jury instruction conference, the parties and the court agreed that the court would not include the bracketed phrase "and reasonable," under the circumstances of this case. Accordingly, the trial court omitted the phrase "and reasonable" from the instruction it read to the jury.
c. The prosecutor's closing argument
During his closing argument, the prosecutor referred to Taylor's mistake of fact defense, stating, "In this case, it's not a defense." Among the reasons the prosecutor offered in support of this argument were the following: "Raymond Barnhart is not the owner of that card or the gasoline and the defendant knew he wasn't the owner. He's the same level, he's a quarry man just like the defendant, and the defendant knew he wasn't the owner. So there's no actual belief he has permission from the owner and no good faith belief." We disagree.
2. Governing law
a. A trial court's duty to instruct a jury on the applicable law
"'[T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case.' [Citation.] In addition, 'a defendant has a right to an instruction that pinpoints the theory of the defense [citations] . . . .'" (People v. Roldan (2005) 35 Cal.4th 646, 715.) However, a trial court need not instruct the jury pursuant to a requested defense instruction that misstates the law. (See People v. Earp (1999) 20 Cal.4th 826, 903 [trial court did not err in refusing to instruct the defense instruction because it was legally "inaccurate"].)
In addition, a trial court need not give a pinpoint instruction if "merely duplicates other instructions . . . ." (People v. Bolden (2002) 29 Cal.4th 515, 558-559 (Bolden).) For example, in Bolden, the court examined a trial court's duty to instruct the jury pursuant to a defense requested pinpoint instruction that relates the People's burden of proof to an element of the charged offense:
"We have suggested that 'in appropriate circumstances' a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged. [Citations.] . . . . An instruction that does no more than affirm that the prosecution must prove a particular element of a charged offense beyond a reasonable doubt merely duplicates the standard instructions defining the charged offense and explaining the prosecution's burden to prove guilt beyond a reasonable doubt. Accordingly, a trial court is required to give a requested instruction relating the reasonable doubt standard of proof to a particular element of the crime charged only when the point of the instruction would not be readily apparent to the jury from the remaining instructions." (Id. at pp. 558-559.)
b. The elements of the crime of theft
Taylor was charged in this case with nine counts of theft (§ 484). In People v. Davis (1998) 19 Cal.4th 301, 305, the Supreme Court outlines the elements of theft:
"[T]he offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. [Citations.] The act of taking personal property from the possession of another is always a trespass [fn. omitted] unless the owner consents to the taking freely and unconditionally [fn. omitted] or the taker has a legal right to take the property. [Citation.] The intent to steal or animus furandi is the intent, without a good faith claim of right, to permanently deprive the owner of possession. [Citation.] And if the taking has begun, the slightest movement of the property constitutes a carrying away or asportation. [Citation.]"
c. The mistake of fact defense
Section 26 provides in relevant part, "All persons are capable of committing crimes except those belonging to the following classes . . . Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent."
In People v. Russell (2006) 144 Cal.App.4th 1415, 1425 (Russell), the defendant was charged with receiving stolen property, which is a specific intent crime with respect to the defendant's knowledge that the property at issue was stolen. The Russell court relied on Navarro in describing the defense of mistake of fact:
"The [Navarro] court explained that '"an honest mistake of fact or law is a defense when it negates a required mental element of the crime. . . ."' [Citation.] Quoting from LaFave and Scott, which used the crime of receiving stolen property as an example, the opinion reasoned '"if the defendant by a mistake of either fact or law did not know the goods were stolen, even though the circumstances would have led a prudent man to believe they were stolen, he does not have the required mental state and thus may not be convicted of the crime."' [Citations.]" (Russell, supra, 144 Cal.App.4th at p. 1427.)
The Russell court determined that the defendant had presented substantial evidence that he did not have the requisite knowledge of the stolen character of the property because he had a good faith belief that it had been abandoned. (Russell, supra, 144 Cal.App.4th at p. 1431.) The Russell court held that the trial court had committed reversible error in failing to instruct the jury regarding the defendant's mistake of fact defense. (Id. at p. 1433.)
3. The trial court did not err in instructing the jury pursuant to a modified version of Taylor's requested mistake of fact pinpoint instruction
Taylor claims his requested mistake of fact instruction was not duplicative of the modified instruction that the court read to the jury. Specifically, Taylor argues that there were two ways in which the trial court's modified version of his requested mistake of fact instruction was not sufficient to replace his requested instruction.
Taylor claims that the court's instruction improperly inserted the words "from the owner" in the first sentence of the requested instruction, so that the court's instruction read, "If one takes personal property of another with a good faith belief that he has permission from the owner to take the property, he is not guilty of theft." (Italics added.) Taylor claims that a "reasonable juror could have understood the instruction to state that appellant had a defense only if he had a good faith belief that National Quarries [the actual owner of the card] gave him permission to use the card." !(AOB 21)! We disagree.
The court's instruction properly informed the jury that Taylor must have had a "good faith belief" that he had permission from the owner in order for the mistake of fact defense to apply. A reasonable juror would interpret this instruction to state that the mistake of fact defense applied to the extent Taylor had a good faith belief that Barnhart was the owner of the gas card and had a good faith belief that Barnhart had given him permission to use the card. By inserting the phrase "from the owner" into the instruction, the court made explicit what was implicit in Taylor's proposed instruction ─ i.e., that Taylor's mistake of fact defense applied only if he believed in good faith that Barnhart had given him permission to use the card and believed in good faith that Barnhart was the owner of the card. We conclude that the trial court's modification of Taylor's requested instruction, inserting the words "from the owner," was proper.
We also reject Taylor's related argument that the jury was likely to have misinterpreted the trial court's instruction regarding mistake of fact because the prosecutor purportedly "misstated the law" in his closing argument. Taylor argues that the prosecutor suggested to the jury that Taylor's mistake of fact defense did not apply because Taylor knew that Barnhart did not own National, and National was the owner of the gas card. Taylor contends that this argument was improper because it incorrectly implied that Taylor's mistake of fact defense necessarily failed, since the true owner of the gas card had not given Taylor permission to use the card.
Taylor's counsel did not object to the prosecutor's argument, nor did he request an admonition at trial. "Because an objection and admonition could have cured any harm, the contention is not cognizable on appeal." (People v. Combs (2004) 34 Cal.4th 821, 854.) Even if we were to consider Taylor's argument on the merits, it would fail. The statements the prosecutor made during closing argument were ambiguous as to precisely what the prosecutor meant by stating that "[Taylor] knew [Barnhart] wasn't the owner." (Italics added.) To the extent the prosecutor meant that Taylor knew Barnhart was not the owner of the gas card, the prosecutor's argument was in accordance with the court's proper jury instruction. Assuming that the jury could have interpreted the prosecutor's comments to suggest that Taylor's mistake of fact defense failed because Taylor knew that Barnhart was not the owner of National, the trial court admonished the jury immediately prior to the closing arguments, that "If either attorney misstates . . . the law . . . you will follow the law as I have instructed you, and I will instruct you briefly at the end of their argument." We may presume that the jury followed the court's instructions. (People v. Thornton (2007) 41 Cal.4th 391, 441 ["'We presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade' [citation]"].)
Taylor also claims that the trial court's instruction failed to explain the prosecution's burden of proof in connection with Taylor's defense of mistake of fact. The court instructed the jury regarding the elements of theft (CALJIC NO. 14.02), and provided an additional instruction regarding the specific intent element of theft (CALJIC No. 14.03). The court further instructed the jury that the People were required to prove the charged crimes beyond a reasonable doubt (CALJIC No. 2.90). Under these circumstances, the trial court was not required to provide an additional pinpoint instruction regarding the prosecution's burden of proof. (See Bolden, supra, 29 Cal.4th at p. 559 ["[A] trial court is required to give a requested instruction relating the reasonable doubt standard of proof to a particular element of the crime charged only when the point of the instruction would not be readily apparent to the jury from the remaining instructions"].)
We conclude that the trial court did not err in instructing the jury pursuant to a modified version of Taylor's requested pinpoint instruction regarding mistake of fact.
Taylor does not raise any claim with respect to the trial court's deletion of the following sentence from his requested instruction, "This is the case even if such good faith belief is unreasonable." We note that the trial court modified CALJIC No. 4.35 to remove the reasonableness requirement for Taylor's mistake of fact defense, in light of the specific intent element of the charged crimes as described in footnote 5, ante.
B. The trial court did not violate Taylor's right to a jury trial by imposing consecutive sentences based on facts not found by a jury
In imposing consecutive sentences in this case, the trial court found that the crimes were independent and planned, and that Taylor had taken advantage of a position of trust as an employee of National.
Taylor claims the that trial court violated his right to a jury trial under the federal constitution in imposing consecutive sentences based on facts not found by the jury. Taylor argues that this court "should hold that under the reasoning in Cunningham, appellant was entitled to concurrent sentencing absent jury factfinding beyond a reasonable doubt regarding consecutive sentencing factors."
In People v. Black (2007) 41 Cal.4th 799, 806 (Black II), the California Supreme Court concluded, "[C]onsistent with this court's determination in [People v. Black (2005) 35 Cal.4th 1238, (Black I)], we hold that neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms." The Black II court reasoned:
"The determination whether two or more sentences should be served in this manner is a 'sentencing decision[ ] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense' and does not 'implicate[ ] the defendant's right to a jury trial on facts that are the functional equivalent of elements of an offense.' (Black I, supra, 35 Cal.4th at p. 1264.) Accordingly, we again conclude that defendant's constitutional right to jury trial was not violated by the trial court's imposition of consecutive sentences on all three counts." (Black II, supra, 41 Cal.4th at p. 823.)
Pursuant to Black II, we conclude that the trial court did not violate Taylor's federal constitutional right to a jury trial in imposing consecutive sentences.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, Acting P. J., O'ROURKE, J.