Opinion
H029551
5-18-2007
THE PEOPLE, Plaintiff and Respondent, v. BOBBY WILLIAM CHUNG, Defendant and Appellant.
NOT TO BE PUBLISHED
STATEMENT OF THE CASE
A jury convicted defendant Bobby William Chung of three counts of second degree burglary, three counts of writing checks with insufficient funds, one count of second degree robbery, one count of assault, and possession of a hypodermic syringe and a pipe for smoking controlled substances. (Pen. Code, §§ 459-460, subd. (b), 476a, 211-212.5, subd. (c), 245, subd. (a)(1) ; Bus, & Prof. Code, § 4140; Health & Saf. Code, § 11364.) Thereafter, defendant admitted having a strike felony conviction and having previously served six prison terms. (§§ 667, 667.5, subd. (b).) Under the "Three-Strikes" law, the court imposed a six-year term for the robbery, consecutive 16-month terms for two burglaries, and a five-year term for the prior conviction. The court dismissed five of the prison priors, and stayed the term for the sixth as well as the terms imposed on the remaining counts.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal from the judgment, defendant claims the court erred in refusing to sever the drug-related charges from the others, denying his motion for self-representation, and amending the information after trial. He claims there is insufficient evidence to support the burglary and robbery convictions. He claims the prosecutor was guilty of misconduct. And last, he claims the abstract of judgment must be corrected.
We conclude that the court erred in denying defendants motion to sever and reverse the judgment.
FACTS
The burglary, bad check, theft, robbery, and assault charges arose from three visits that defendant made to the Weirdstuff Warehouse (Weirdstuff) in Sunnyvale, during which he purchased merchandise using checks written on bank accounts that were closed. The drug-related charges are based on evidence seized at the time of defendants arrest several weeks after the last purchase.
Defendants Bank Accounts
Kyle Jackson, an analyst for Wells Fargo Bank, testified that on February 18, 2004, the bank opened a business checking account number 2010798726 with a $100 deposit for defendant and Egbert Hignio, doing business as Janitorial Bureau of Investigation at 2011 Little Orchard Street in San Jose. From February 18 to March 3, 2004, $1,164.95 was deposited into the account and $1,190.15 was withdrawn, rendering the account overdrawn. Jackson explained that when accounts are overdrawn, the bank issues letters to the account holders, giving them 60 days to cover the negative balance. In this case, the overdraft was never covered, and the account was closed on May 20, 2004.
Jackson testified that on March 3, 2004, someone deposited an empty envelope purporting to contain $400 in an ATM. He further testified that a defense exhibit (Exhibit B) was a copy of a "credit ticket" from a "back shop"—i.e., a Wells Fargo unit that handles deposits and withdrawals but does not have direct contact with customers. The ticket purported to reflect a deposit of $400 into defendants account on March 1, 2004. He could not tell from the ticket whether the money was ever put into the account. However, he opined that whatever took placed occurred before the account was closed on May 20, 2004.
Roderick Wada, manager of the Stevens Creek Bank of the West, testified that on March 18, 2004, defendant opened a business checking/savings account number 015017004 with a $100 deposit for Janitorial Bureau of Investigation at 505 South 10th Street in San Jose. The account was active during April. On May 7, 2004, the account was restricted because on May 4, 2004, defendant deposited a $1,000 check from a different Bank of the West personal checking account and then stopped payment. Wada checked that other personal account and found that there had been only $150 in the account when defendant wrote the $ 1,000 check. Wada explained that when the $1,000 was "reversed out" of the business account, there was a negative balance of $846.74. According to Wada, that account never again had a positive balance, and on May 17, 2004, the account was closed. The bank phoned defendant and sent notices to 130 Roundtable in San Jose, where defendants statements previously had been sent. On May 19, 2004, the bank charged off the account as a loss.
Defendant shared that other Bank of the West personal checking account with a man named Hao Quang Do.
Defendant wrote a second $1,000 check and deposited it in the business savings account. However, a stop payment was placed against that check as well.
Wada testified that later in June, he spoke to defendant. Defendant said he wanted to deposit funds and "reopen" his account. Sometime later, defendant handed Wada an ATM deposit envelope personally addressed to Wada that had "$21" written on it. However, defendants account remained closed.
The envelope was opened in court and contained $21.
Linda Tai, the customer service manager at the Stevens Creek bank, testified that on May 7, 2004, defendant came to the bank and asked why his ATM card had been blocked. She told him that his account became overdrawn when he stopped payment on the $1,000 check he had deposited. She said that if he did not cover the negative balance, his account would be closed. She testified that she made an appointment for him to speak to Wada, but he did not show up. She also testified that defendant automatically would have been sent notices when his account became overdrawn.
The Incidents at Weirdstuff
On July 3, 2004, almost two months after both business accounts at Wells Fargo and Bank of the West had been closed, defendant bought a laptop computer at Weirdstuff, writing a check —number 1063—for $270.57 from the closed Bank of the West account.
On July 8, 2004, defendant returned to the store and bought another laptop and other merchandise from Nelson Pineda, a sale clerk, writing a check—number 1091—for $379.69 on the same Bank of the West account.
On July 17, 2004, defendant returned again and attempted to purchase another laptop and some wireless equipment from John Ryle, the sales clerk. He wrote check number 1009 from his closed Wells Fargo account. Ryle took the check, wrote identification information on it, entered information on the store computer, and ran the check through the stores check verifier. The computer alerted Ryle not to accept the check. At that time, Ryle remembered that the sales staff had been warned not to accept checks from defendant.
When Ryle was processing the transaction, defendant put the laptop into an empty laptop shoulder bag and started to leave without a sale receipt. Realizing that he could not accept the check or finalize the transaction, Ryle called defendant back to the counter, saying that defendant had forgotten the sales receipt. He asked defendant to wait, and then he went to consult with the sales manager Jim Van Cleef, who was also aware of defendants prior bad checks. When Ryle left, defendant walked out the door and into the parking lot. Ryle alerted Roshan Patel, another clerk, and Van Cleef. Patel rushed out the door after defendant, followed by Van Cleef, followed by Ryle.
On direct, Van Cleef testified that he followed Patel out the door to "confront [defendant] about [the laptop]" and "find out what was going on." However, on cross-examination, Van Cleef admitted that when he followed defendant out the door, he did not know about the specific laptop or the check defendant had written for it. During rebuttal, he testified that he went after defendant to find out what was going on. Although he did not know exactly what merchandise defendant may have had, he thought that defendant might have had some merchandise with him because of all the commotion that had been made when he left the store.
Outside, defendant was on his motorcycle, with the laptop bag, hurriedly putting on his helmet. Patel, who was 10 feet away, called out loudly enough for him to hear. Defendant did not respond. Instead, he started his motorcycle and began to drive away. As he did, he turned a little toward Van Cleef, who reflexively put his hands out in front of him. Defendant continued toward Van Cleef and then ran into him, hitting his thigh and running over his foot, even though there was room on the road to avoid hitting him. Defendant swerved, as if he had lost his balance, and then continued out of the parking lot.
Carolyn Andrews, the store accountant, testified that the bank returned defendants first check—number 1063—marked "account closed" after defendant had already come in and written the second check—number 1091. About a week later, the bank notified the store about the second check. At that time, Andrews called the phone number on the checks, but it had been disconnected. She also called a number on defendants business card, which he had left after his first purchase. She left a message. On July 24, 2004, Andrews sent defendant letters about all three checks, two to the address on the Bank of the West checks and one to the address on the Wells Fargo check, but all of the letters came back marked "return to sender."
Andrews testified that she received three voice mail calls from someone identifying himself as defendant on July 19 and 20 and August 10, 2004, and one on December 3, 2004, from a woman identifying herself as Nancy Noval and claiming to be defendants friend. In his calls, defendant expressed concern about his account and wanted to "make up for the hassle of having bounced a couple of checks . . . ." However, she never saw defendant, no payment was made, and the merchandise was not returned.
The Arrest
On September 5, 2004, Officer David Osborn of the Sunnyvale Police Department checked the license plate of a car parked at the Pacific Inn, a motel in Sunnyvale. He obtained defendants name, which he checked for warrants, and learned that he was a suspect in a pending robbery investigation at Weirdstuff. Officer Osborn asked the motel clerk about the car and was told that the owner was registered in room 325 under the name Guillermo Umali. Officer Osborn left, obtained a photograph of defendant, and returned the next day. The clerk recognized defendant and directed Officer Osborn to room 125. Defendant was alone in the room. Inside, Officer Osborn found a syringe, a bent spoon, a cut straw, a nail file, and a bag containing a non-drug white powder. Officer Osborn also found a laptop, a carrying case, a receipt dated August 24, 2004, for a laptop and carrying case from the Bay Area Computerman, and several checkbooks. Officer Osborn arrested defendant and later interviewed him at the police station.
Officer Osborn described the room as "low end," noting that it did not have a bathroom. He opined that people who have pending criminal matters will register in names other than their own.
Defendant told Officer Osborn that he had registered in the name Guillermo Umali. He admitted that the drug paraphernalia was his and that he was using methamphetamine.
When asked about the Weirdstuff incidents, defendant claimed that when he went there on July 17, 2004, he did not know that his account had been closed. When he left the store, no one asked him to stop. In the parking lot, he put on his gloves and helmet and drove away. No one tried to stop him. He said that later, he sold the laptop for cash. Defendant said that he spoke to someone at Weirdstuff and was told to pay or return the merchandise. He wanted to pay but was unable to do so.
Officer Osborn opined that thieves often focus on computer equipment, including laptops, because it is easily pawned or sold on the street.
The Defense
Defendant, who had prior felony convictions for burglary and petty theft, testified that the laptop he bought on July 3, 2004, did not work properly, so he returned it on July 8, 2004, and exchanged it for another one. On July 17, 2004, he came to the store for another laptop and some wireless technology. He was in a hurry because he had to get to a job. After buying the merchandise, he left, but the clerk called him back to get his receipt. Defendant went back, got it, and then left. In the parking lot, he put on his jacket and helmet. He did not hear anyone call to him. However, when he started to drive away, someone stepped off the curb right in front of him. He swerved and avoided hitting him with the motorcycle.
Defendant claimed that Ryle lied when he testified that defendant did not get the receipt before leaving the store.
Defendant denied knowing that his accounts were overdrawn and had been closed before he wrote the three checks to Weirdstuff. He also denied intending to steal the laptops. He said he had no need to do so because he had $5,000 in his savings account at the time.
He testified that when someone from Weirdstuff told him about the bad checks, he instructed his accountant and office manager, Nancy Noval, to pay the store. He thought Noval had handled it. However, he learned that the store would not accept any money because the police were handling the matter. Defendant offered the store janitorial services, but his offer was refused. Finally, he asked if he could return the merchandise. He arranged for Michael LaFleur, an employee, to return it. However, LaFleur stole both the laptop and defendants car. He called the police to resolve the check matter but received no help.
Defendant said that LaFleur not only stole the car and laptop but also his fax, printer scanner, files, and monitor. He said he called "911" about the car but did not formally report the theft of anything to the police.
Defendant also said that another employee, Luis Madrid, had the laptop that he bought on July 8, 2004. He admitted, however, that he did not have Madrid return it. Finally, several months later, when he was in jail, defendant learned about a bad check restitution program. He testified that he was able to resolve the entire matter by paying all the money he owed to the district attorneys office.
Concerning the bank accounts, defendant testified that he started his business in February 2004. He took on his former case worker at Sacred Heart Community Services, Egbert Hignio, as a partner, and they opened the Wells Fargo account in their names. Defendant said he did not want to keep too much money in that account because Hignio had access to it. He said that Hignio obtained a $15,000 loan from the Small Business Administration to help set up their business, but Hignio took the money and disappeared.
Yolanda Vinciguerra, the head coordinator for Sacred Heart Community Services, which provides services to homeless people and others, testified that she ran a job-preparedness program. She said that defendant, who had previously been a recipient of services, later sought her help in finding employees for his business.
Defendant testified that one day he deposited $400 by giving it to a bank teller. He then put an empty deposit envelope into the ATM machine because wanted to practice using the machine, which he did not trust.
After Hignio took the loan money, defendant opened an account at Bank of the West. Then, a man named Howard Do agreed to buy several janitorial contracts from him for $15,000. However, Do could not pay all at once, so they opened a second bank account into which Do would make payments. Do promised to deposit $2,000 into the account as a down payment. Expecting a $2,000 deposit, defendant wrote two $1,000 checks and deposited them into the businesss checking and savings accounts. However, Do was unable to deposit the money, and defendant had to stop payment on his checks.
Defendant testified that Roderick Wada from Bank of the West called and informed him that he had overdrawn his account by $800. Defendant immediately went to the bank and gave Wada an envelope containing $21, which is all that he had. The bank never called again. He said that on July 6, he withdrew $1,200 from his personal savings account and gave it plus another $ 300 to Nancy Noval, his office manager, for her to deposit into the Bank of the West business account. As a result, he thought the account was still open later in July when he bought a second and a third laptop from Weirdstuff.
Defendant explained that he started his business on Little Orchard Street, then moved to Hignios garage, then to 10th Street, then to Dos house. By that time, he had an answering service—Computel—handle his incoming business calls. At some point, he stopped getting calls and then learned that Do, who had the Computel access code, was stealing the calls and his customers. Consequently, defendant disassociated himself from Do and moved his business to Blossom Hill. He testified that Noval handled his bank accounts, payroll, and billing. She was also in charge of postal matters, and it was her job to submit change of address forms to make sure the mail was forwarded to his new business addresses. When Noval told him that they had not been getting mail at the new office, defendant called Do, who claimed that someone had broken into the mailbox.
Earl Norris, in independent contractor for Computel, testified that defendant signed up for the answering service and later told him that Do was no longer associated with him and should not be given access to his messages.
Concerning the room at the Pacific Inn, defendant testified that after Noval got evicted from her place, he set her up with Umali, an elderly employee of his. Noval and Umali and another employee used the motel room as a "crash pad." He said that when Officer Osborn arrived, he was "doing records, checking faxes . . . and stuff." He said that he needed a new laptop to replace the one that LaFleur had stolen.
Defendant opined that Officer Osborn wanted to help the prosecution and so he lied about what defendant had said during interview. He denied that he had registered at the Pacific Inn under the name of Umali and denied telling Officer Osborn that he had done so. He denied that the drug paraphernalia was his or that he ever said it was his. And he denied saying that he was using methamphetamine. He testified that by that time, he had not used drugs for over a year. He also denied saying that he had sold a Weirdstuff laptop for cash.
Nancy Noval, who used drugs and had two prior convictions for possession of drugs for sale, testified that she worked for defendant but did not know much about the business and did not have much contact with him. When she started working, defendant and Do were partners. Although she did not know how to keep books, her job was to do payroll, pay bills, and make faxes. Defendant hired homeless people to make phone calls and paid them daily.
Noval denied that her drug use affected her ability to remember things, rather she said she "[had] a bad memory to begin with. If I dont write it down, I wont remember it."
Noval said that defendant gave her cash, and, except for one time, she deposited it using ATM machines. She also obtained money orders at liquor stores to pay the bills. She said she did not use checks to pay bills because she did not "deal with banks" and could not balance a check book. She explained that the business moved after defendant found out that Do had been taking his clients. She filed a change of address notice at the post office but did not inform the banks. After a couple of months without mail, Noval called Do to see if defendants mail was still coming there. Do said that it was. Noval told him she would pick it up, but Do told her he had sent it back to the post office. Noval made no effort to retrieve it.
During that time, Noval did not receive any mail from banks concerning the business checking accounts. She testified that she learned of a problem with a bad check to a janitorial supply service, and she later covered that check. She said she also tried to cover the checks written to Weirdstuff. However, when she tried to arrange for payment, Andrews told her she would have to go through the district attorneys office.
Noval said that the business moved a lot and had last operated from the Pacific Inn, where she stayed for a few days. She said that she still worked for defendant and was trying to clean up the mess she had made by not going to the post office, depositing money, and paying bills.
Officer Ross Spencer of the Sunnyvale Police Department testified that he investigated the July 17, 2004 incident at Weirdstuff and took statements from Van Cleef and Ryle. What he understood at that time was that Van Cleef said he had stepped into the path of defendants motorcycle to block it; and Ryle said he had completed the transaction and given defendant a receipt before defendant left the store.
Rebuttal
Nelson Pineda testified that if defendant had come in on July 8, 2004, to return a laptop and exchange it for another, the receipt and invoice would have reflected that transaction and not a simple purchase. He did not remember that defendant came in to exchange a laptop. Rather, it was a straight simple purchase.
Van Cleef testified that he did not step into the path of defendants motorcycle. Rather, he had already stopped in front of defendant before defendant ran into him.
Andrews testified that defendant wrote three bad checks to Weirdstuff. The checks were returned marked "closed account" rather than insufficient funds. She called defendant, using different numbers, and some had been disconnected. She left a message on a cell phone. She also spoke to someone at an answering service and mentioned that she was going to call the police. Defendant called her back the same day to inform her about a check that was going to bounce. She told him that she already had three checks written on closed accounts. Defendant responded that had overdraft protection and would call his bank to straighten things out. Andrews told him to return the merchandise. However, he neither covered the checks nor returned the merchandise. Five months later, in December, Andrews spoke to Noval, who said she wanted to start making payments on a check. Again, however, no money was ever paid.
MOTION TO SEVER
Defendant contends that the court erred in denying his motion to sever the two drug-related counts from the other eight counts. He argues that the two sets of offenses were not properly joined in the first place, and the failure to sever them was prejudicial.
Under section 954, two or more different offenses may be joined in one pleading under separate counts, if the different offense are "connected together in their commission," represent "different statements of the same offense" or are "of the same class . . . ." (See Cal. Const., art. I, § 30, subd. (a) [authorizing joinder in criminal cases].) When any of these circumstances exist, joinder can be beneficial because it avoids the repetition of evidence, conserves judicial resources, and protects the defendant from the unnecessary harassment of two or more separate trials. (People v. Ochoa (1998) 19 Cal.4th 353, 409; People v. Scott (1944) 24 Cal.2d 774, 778-779.)
Section 954 provides, "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if the two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated."
Whether the statutory criteria for joinder were satisfied in this case presents a question of law, subject our independent review on appeal. (People v. Alvarez (1996) 14 Cal.4th 155, 187-188.)
We focus only on whether the drug-related counts were properly joined with other eight counts. Defendant does not claim that the two drug counts should not have been joined, or that the other eight counts should not have been joined.
Under section 954, offenses "committed at different times and places against different victims are nevertheless `connected together in their commission when they are . . . linked by a ` "common element of substantial importance." [Citations.]" (People v. Lucky (1988) 45 Cal.3d 259, 276.) "Such common elements can be proximity of time or place or even the common intent with which the same general type of offense is committed." (Alcala v. Superior Court (2007) 147 Cal.App.4th 1492, 1504, italics omitted; e.g., People v. Valdez (2004) 32 Cal.4th 73, 119 [despite two years between offenses, murder and escape charges properly joined because escape was from custody on murder charges]; People v. Koontz (2002) 27 Cal.4th 1041 [petty-theft, murder, robbery and theft of a vehicle properly joined because all connected by felonious intent to take property]; People v. Mendoza (2000) 24 Cal.4th 130 [series of robberies, rape and murder that occurred over a three-day period properly joined because each crime was part of a single course of criminal conduct and motivated by a felonious intent to take property].)
Offenses are of the "same class" when they possess common characteristics or attributes (People v. Lucky, supra, 45 Cal.3d at p. 276; Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722), such as when the offenses all involve lewd conduct toward young female minors (e.g., People v. Moore (1986) 185 Cal.App.3d 1005, 1012-1013); assaultive crimes against the person (e.g., People v. Poggi (1988) 45 Cal.3d 306, 314, 320); the same location (e.g., People v. Leney (1989) 213 Cal.App.3d 265, 269; the same weapon (e.g., People v. Kemp (1961) 55 Cal.2d 458, 475; or a similar modus operandi (e.g., People v. Meneley (1972) 29 Cal.App.3d 41, 51; implicitly overruled on other grounds in People v. Bolton (1979) 23 Cal.3d 208, 213-214).
Here, all of the offenses were not part of a single course of criminal conduct. The drug offenses were committed in September 2004, six weeks after defendant wrote the last bad check. Moreover, the commission of both sets of offenses did not involve shared elements, characteristics, or attributes such as common intent, motive, modus operandi, victims, or location. Accordingly, the record does not support a finding that the two sets of offenses were connected together in their commission by a common element of substantial importance or that the two sets were made up of the same class of offenses.
Citing People v. Johnson (1988) 47 Cal.3d 576 (Johnson), the Attorney General claims that joinder was proper simply because "the evidence surrounding appellants arrest was a circumstance that would have been presented in two or more trials if the charges had not been joined." Reliance on Johnson is misplaced.
In Johnson, the court simply applied the pertinent criteria for joinder and found that the murder of a man and subsequent rape of a woman a few days later were properly joined because both offenses were assaultive and thus in the same class. (Johnson, supra, 47 Cal.3d at p. 587.) Johnson does not generally suggest that joinder is proper when there is some evidence that could be presented at separate trials. Nor does Johnson more specifically imply that the joinder of two unrelated offenses of different classes is nevertheless proper if (1) the defendant is arrested and later charged with both crimes, and (2) evidence concerning the arrest and statements made thereafter could be introduced at separate trials.
In our view, the Attorney General mistakenly treats the cross-admissibility of evidence as a proper basis for joinder. However, cross-admissibility is a factor used to determine whether properly joined charges should nevertheless be severed. Section 954 does not make cross-admissibility a basis for joining offenses in the first instance. Moreover, although some of the same evidence might be admissible at separate trials, it does not follow that such an evidentiary overlap concerning, for example, the circumstances of an arrest, authorizes joinder where, as here, the offenses were not connected in their commission and are not of the same class. (See, e.g., People v. Saldana (1965) 233 Cal.App.2d 24, 28 [although defendant discussed marijuana he had at the time of arrest for rape, possession and rape should not have been joined]; U. S. v. Jawara (9th Cir. 2006) 462 F.3d 1173, 1179-1186 [although defendant made admissions concerning unrelated offenses, all crimes should not have been joined].)
Simply put, the language of section 954 does not suggest that the mere possibility of duplicative evidence justifies joinder, and we decline to judicially expand the statute to encompass such a ground. (See People v. Guzman (2005) 35 Cal.4th 577, 587 [courts must not add to statute]; In re Andrews (1976) 18 Cal.3d 208, 212 [same].)
Having found that the two sets of offenses were not properly joined under section 954, we conclude that the trial court erred in denying defendants motion to sever them. Thus, we turn the question of prejudice.
When a defendant seeks to sever counts that have been properly joined, the defendant must demonstrate that the potential prejudice outweighs the benefits of joinder. Concerning prejudice, the court considers whether (1) evidence of the crimes to be jointly tried would be cross-admissible in separate trials; (2) any of the charges are unusually likely to inflame the jury against the defendant; (3) a weak case has been joined with a strong case so that the effect of aggregate evidence on several charges might alter the outcome of some or all of the charges; and (4) any of the charges carries the death penalty or joinder of them turns the matter into a capital case. (People v. Bradford (1997) 15 Cal.4th 1229, 1315; Williams v. Superior Court (1984) 36 Cal.3d 441, 452-454.)
Where, as here, the statutory requirements of joinder are not met, erroneous joinder " `affects substantial rights and requires reversal . . . [if it] results in actual prejudice because it `had substantial and injurious effect or influence in determining the jurys verdict. " (United States v. Lane (1986) 474 U.S. 438, 449 [noting nonconstitutional nature of improper joinder].) The issue is not whether the evidence is sufficient to support the convictions on the joined counts, independent of the evidence on other counts. " `The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. " (Ibid.)
Concerning "substantial influence," the United States Supreme Court in Kotteakos v. United States (1946) 328 U.S. 750 (Kotteakos), explained, "[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." (Id. at p. 765.)
Kotteakos articulates the standard of review for nonconstitutional error in federal criminal trials. (Strickler v. Greene (1999) 527 U.S. 263, 301, fn. 3; U. S. v. Bruce (9th Cir. 2005) 394 F.3d 1215, 1229; U. S. v. Brooke (9th Cir. 1993) 4 F.3d 1480, 1488.)
Similarly, in California, erroneous joinder is prejudicial where it is reasonably probable the error affected the jurys verdict. (People v. Bean (1988) 46 Cal.3d 919, 940; People v. Grant (1993) 113 Cal.App.4th 579, 588.) In other words, reversal is required if we find it reasonably probable the defendant would have obtained a more favorable result had the counts been severed. (See People v. Watson (1956) 46 Cal.2d 818, 836; e.g., People v. Pinholster (1992) 1 Cal.4th 865, 931-932; People v. Saldana, supra, 233 Cal.App.2d at pp. 30-31.)
In analyzing prejudice from misjoinder, we consider it helpful to use the same factors that guide the determination of whether to sever counts that are otherwise properly joined. In particular, we shall focus on whether (1) the evidence of each offense was cross-admissible; (2) some charges were more inflammatory than others; (3) the prosecutions case was stronger on some charges than on others; and (4) the defendant faced the possibility of capital punishment.
The Attorney General does not claim that evidence of the offenses themselves was cross-admissible. Nor could he. Evidence that defendant possessed drug paraphernalia had no tendency prove any material issue—i.e., was not relevant (Evid. Code, § 210)—in the prosecution for burglary, assault, robbery, or writing bad checks. Likewise, the evidence of the non-drug related offenses had no tendency to prove the possession charges. Rather, the Attorney General claims that the circumstances of defendants arrest were cross-admissible. In particular, he argues that both Officer Osborn and defendant testified about those circumstances, including the evidence seized and defendants subsequent statements, and all of that evidence would have been relevant and admissible in separate trials. We are not persuaded.
We note that simple possession of a controlled substance does not involve moral turpitude and thus a prior felony conviction for that offense cannot be used to impeach the credibility of a witness. (People v. Castro (1985) 38 Cal.3d 301, 317.) It follows that mere possession of drug paraphernalia also does not involve moral turpitude, and the conduct underlying a misdemeanor conviction for that offense would not be admissible for purposes of impeachment. (See People v. Wheeler (1992) 4 Cal.4th 284, 295-296 [evidence of past misconduct amounting to a misdemeanor and involving moral turpitude is admissible to impeach a witness in a criminal case].)
The Attorney General does not suggest, and we fail to see, what relevance the drug paraphernalia and defendants later comments to Officer Osborn about using drugs would have had in proving any material issue in a separate trial on the non-drug related charges.
We acknowledge that defendants statement that he sold one of the Weirdstuff laptops for cash arguably would have been relevant to prove defendants wrongful intent at the time of his purchases. However, in the absence of evidence that defendant used the cash from selling the laptop to buy drugs or the drug paraphernalia found in the motel room, the evidence of that paraphernalia and defendant statements about drug use would have remained irrelevant and inadmissible in a separate trial on the non-drug charges.
We also acknowledge that defendants statement that he registered in the name of Umali has some tendency to show dishonesty and deceit, and obviously burglary and writing bad check involved dishonest and deceitful conduct. However, that shared quality would not have rendered defendants statement admissible to prove those offenses. In particular, the statement could not have been used to prove that defendant has a bad character or a propensity to commit deceitful or dishonest conduct. (Evid. Code, § 1101, subd. (a) [prohibiting use of prior misconduct to prove bad character or propensity].) And, without more, defendants statement had no tendency to prove some other material issue—such as motive, opportunity, intent, preparation, common plan or scheme, knowledge, identity, absence of mistake or accident—related to burglary and bad check writing. (See Evid. Code, § 1101, subd. (b) [misconduct admissible when relevant to prove material issue].)
Similarly, the Attorney General does not suggest, and we fail to see, what relevance the laptop, the carrying case, the receipt, the checkbooks and defendants statement about selling a Weirdstuff laptop for cash would have had in proving any material issue in a separate trial on the misdemeanor charges of possessing drug paraphernalia.
Thus, although the general fact that Officer Osborn discovered and arrested defendant at the motel and later questioned him may have been admissible at separate trials on the two sets of offenses, not every specific fact and circumstance surrounding those events would have been relevant and admissible in separate trials and thus cross-admissible in a single trial. Moreover, as noted, evidence concerning the commission of each set of offenses was not relevant to prove the other set of offenses. Accordingly, we conclude that generally the facts and circumstances of the two sets of offenses were not cross-admissible. We further conclude that their admission at a single trial was prejudicial.
In People v. Cardenas (1982) 31 Cal.3d 897 (Cardenas), the court reiterated the established rule that evidence of drug addiction is inadmissible to prove a charged offense when it " `tends only remotely or to an insignificant degree to prove a material fact in the case . . . . " (Id. at p. 906.) The court acknowledged that such evidence may be admissible to prove motive if "obtaining narcotics was the direct object of the crime committed." (Ibid.) "However, in cases where the object of the charged offense was to obtain money or an item other than narcotics, evidence of the accuseds narcotics use has been uniformly found inadmissible." (Ibid.)
In Cardenas, the prosecution introduced extensive evidence of the defendants narcotics addiction to establish a financial motive for the charged attempted robbery. (Cardenas, supra, 32 Cal.3d at p. 907.) The Supreme Court found that the probative value of the evidence was slight and substantially outweighed by its inherently inflammatory impact. Accordingly, the court concluded that the admission of the evidence was improper, prejudicial, and, along with the erroneous admission of gang evidence, compelled reversal. (Ibid.; see People v. Holt (1984) 37 Cal.3d 436, 449-450 [evidence more prejudicial than probative].)
In People v. Felix (1994) 23 Cal.App.4th 1385, 1392-1394, the court held that evidence of the defendants drug addiction was admissible to prove a motive to burglarize his sisters home because the defendant admitted to police that he entered her home to steal something so he could buy heroin. However, the court found the evidence inadmissible to prove a second burglary committed two weeks later because there was no similar evidence connecting the defendants drug habit with the subsequent burglary. (Id. at pp. 1392-1394.)
In People v. Davis (1965) 233 Cal.App.2d 156, the defendant was arrested one week after a robbery. The arresting officer testified that, in his opinion, the defendant was under the influence of narcotics when arrested. On appeal, the court reversed the robbery conviction. The court noted that any connection between narcotics use—assuming the officers observation was correct—and the robbery the week before was tenuous and required two assumptions: (1) the defendant was using expensive drugs—heroin rather than marijuana—and (2) he was addicted to those expensive drugs, resulting in his entering a regular life of crime to support that addiction. No evidence existed to support either assumption. Instead, the "prosecution branded him as a habitual lawbreaker, a loathsome, unworthy person, predisposed to rob or steal to support his habit" which the defendant "was unprepared to meet except by his own denial . . . ." (Id. at p. 162.)
Here, evidence that defendant possessed drug paraphernalia and was using drugs many weeks after he uttered the last bad check was not admissible to prove defendants motive for writing bad checks because the direct purpose of the checks was to obtain laptops, not drugs. Moreover, although Officer Osborn opined that thieves steal computer equipment because it is easy to sell and defendant said that he sold one of the laptops for cash, the prosecution introduced no evidence that here the defendant wrote the bad checks for the laptops to get money for drugs. Nor was there evidence that defendant was using drugs when he wrote the checks. Thus, it is pure speculation to find that defendants drug use and desire for methamphetamine motivated him to write the bad checks.
On the other hand, the evidence of defendants drug paraphernalia, his admission about using methamphetamine, his trial testimony in response to the drug charges, and Officer Osborns testimony about computers easily being turned into cash allowed jurors to speculate about defendants motive and provided them with a simple, direct, and compelling explanation for why defendant made fraudulent purchases in quick succession: he wanted money for drugs.
Indeed, during his opening statement, the prosecutor expressly invited the jury to infer such a motive. The prosecutor explained, "This case is about the defendant writing worthless checks for computer equipment and then selling that equipment for cash. Theres no direct evidence what the defendant does with the cash. But what the testimony will be and what the physical evidence will show you is that when he was arrested some two months after he wrote the last insufficient funds check, he was in a hotel room under a different name. There as drug paraphernalia. [¶] When the officer interviewed him about it, he said: Yes, I am a methamphetamine user. When the officer asked him: What did you do with the laptop? The defendant said: Oh, I sold that laptop for cash."
Later, during his closing argument, the prosecutor stated that "drug dealers dont take checks, which is why the defendant had to write worthless checks from closed accounts in a second-hand computer store and take that merchandise and sell it for cash that he could then use to buy methamphetamine." The prosecutor continued, "This trial has revealed the defendant for what he is. He is addicted and he needs to do some kind of theft to get money to support his habit." The prosecutor opined that "[t]heres a reason[] hes going in there and not ripping off Frys or some other store with more sophisticated systems. He knew what he was doing. We dont know if he was really strapped for cash, [but] he needed to get some meth." Then the prosecutor argued, "Motive is not an element of the crimes charged and need not be shown, but you can consider motive or lack of motive as a circumstance in the case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty. [¶] Okay. In this case we got a guy who uses meth. And its not just him telling the cop that he uses meth, but hes got a spoon to cook it, hes got a straw to ingest it, [and] hes got a file. The file and the cut, thats more sales stuff. For our purposes, forget that. But he tells the officer that he uses meth, and then hes got devices to ingest methamphetamine. Hes got a pipe and hes got a syringe. So we go a guy that uses meth. Unfortunately in our society thats one of the biggest motives for stealing."
The prejudice from the admission of evidence of paraphernalia and methamphetamine use and addiction was compounded by evidence that defendant had used a false name to register for the room, in which he apparently had been using methamphetamine. As noted, evidence of dishonest or deceitful conduct is not admissible to prove bad character or a propensity to commit such misconduct. (See Evid. Code, §1101, subd. (a).) Here, the prosecutor initially offered the evidence for that very purpose, arguing to the trial court that evidence that defendant used a false name is relevant to prove that he wrote bad checks. Once the evidence was admitted, jurors could have considered defendants false registration as evidence of a propensity to commit crimes of dishonesty and deceit, such as burglary and writing bad checks.
Next, we note that the evidence of drug use and possession of paraphernalia was inherently inflammatory. In Cardenas, supra, 31 Cal.3d, the court observed that "[t]he impact of narcotics addiction evidence `upon a jury of laymen [is] catastrophic . . . . It cannot be doubted that the public generally is influenced with the seriousness of the narcotics problem . . . and has been taught to loathe those who have anything to do with illegal narcotics in any form or to any extent. [Citation.]" (Id. at p. 907, quoting People v. Davis, supra, 233 Cal.App.2d at p. 161.) Moreover, compared with evidence of drug use, the evidence of writing bad checks is not inflammatory. (See People v. Beagle (1972) 6 Cal.3d 441, 454 [violation of section 476a "is not one likely to inflame passions"].)
Similarly, the evidence of guilt concerning possession of drug paraphernalia was simple and strong: Officer Osborn found the paraphernalia in defendants room; and Officer Osborn said that defendant admitted it was his. Indeed, during closing argument, the prosecutor opined that it was not necessary to discuss those charges in detail, and he summarized his case in a few sentences. The defense to the drug counts was equally simple and straightforward: defendant denied possessing the paraphernalia and telling Officer Osborn that it was his.
In contrast, the evidence that defendant intended to defraud Weirdstuff with bad checks and hit Van Cleef with his motorcycle was completely circumstantial. Some prosecution witnesses contradicted others and also statements they previously had given to an investigating officer. Moreover, defendant offered evidence and testimony to rebut inferences that he knew his accounts were closed when he wrote the checks and that he intentionally drove into Van Cleef. Given the complexity of the prosecutions case and the difficulty in proving intent from circumstantial evidence, it is understandable that the prosecutor emphasized defendants drug use and stressed defendants motive during closing argument.
Under the circumstances, we find that there was substantial disparity between a stronger case involving inflammatory evidence of methamphetamine use and a weaker, circumstantial case involving the much less inflammatory conduct of writing bad checks, and this disparity further added to the prejudice resulting from misjoinder, in that it increased the potential for prejudicial spillover—i.e., where the jurys relatively simple determination of guilt or innocence on the drug charges influenced the more complex determination on the non-drug charges.
As the court in People v. Bean, supra, 46 Cal.3d 919, explained, "[T]he potential for prejudice in joining unrelated offenses in a single trial lies in the introduction of `other crimes evidence from which the jury might infer that the defendant has a criminal disposition—a factor which the jury is not permitted to consider in determining his guilt of the charged offense." (Id. at p. 935.) Thus, "[a] jury not otherwise convinced beyond a reasonable doubt of one or more of the charged offenses might permit the knowledge of the defendants other criminal activity to tip the balance and convict him." (Id. at p. 936.)
Indeed, the excerpts of the prosecutors opening statement and closing argument quoted above fostered such spillover effect. The prosecutor urged jurors to find that defendant fraudulently obtained the laptops so he could buy methamphetamine to support his addiction. Given such argument, the jury quite naturally would view the evidence of all charges cumulatively and regard the two, unrelated sets of charges as a strong case involving a continuous course of conduct motivated by a single purpose: obtaining drugs to feed a drug habit.
We further note that the jury received no instructions that might have prevented such a spillover or that advised jurors that evidence that defendant possessed drug paraphernalia could not be considered in determining whether he was guilty of the other charges and vice versa. Thus, we have no reason to believe that the jury segregated the evidence and did not consider evidence of defendants drug use and possession of paraphernalia in finding defendant guilty of the other charges.
We do not intend to suggest that the court had a sua sponte duty to give a limiting instruction concerning the evidence of each offense. (See People v. Ochoa, supra, 19 Cal.4th at p. 411 [court has no duty to instruct on limited admissibility of other crimes evidence].)
Finally, although none of the charges in this case carries the death penalty, the felony charges and defendants strike prior conviction rendered him subject to enhanced punishment under the "Three Strikes" law. In death penalty cases, "the court must analyze the severance issue with a higher degree of scrutiny and care than is normally applied in a noncapital case." (Williams v. Superior Court, supra, 36 Cal.3d at p. 454.) The same rationale applies here. The People joined a complicated and circumstantial Three Strikes case with a very strong misdemeanor case. Although the felony charges did not carry the possibility of death, they did carry a potential for more severe penalties.
In People v. Grant, supra, 113 Cal.App.4th 597, the court concluded that the charged crimes of burglary, receiving stolen property, and possession of personal property with a removed serial number were properly joined because they were all property crimes. (Id. at p. 586.) Nevertheless, the court held that joinder was prejudicial and compelled reversal. The court noted that the evidence of each offense was not cross-admissible, the prosecutor had urged the jury to consider evidence of one crime as evidence the defendant committed the others, the court declined to give limiting instructions, and there was a disparity in the strength of the cases on each charge. Under the circumstances, the court found it reasonably probable the joinder affected the verdict. (Id. at pp. 588-594; see Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, 1084-1086 [similar circumstances and result].)
We reach the same conclusion here. Given the lack of cross-admissibility, the disparity in strength of the cases and inflammatory nature of the charges, the prosecutors heavy reliance on evidence of drug use to show defendants motive, the impermissible inference of bad character and criminal propensity the jury was permitted to draw evidence of false registration, and the increased punishment defendant faced under the Three Strikes law, we find it reasonably probable that erroneous joinder affected the jurys verdict and that defendant would have obtained a more favorable result had the two sets of offenses been tried separately. (See People v. Watson, supra, 46 Cal.2d at p. 836.) Accordingly, defendants convictions must be reversed.
SUFFICIENCY OF THE EVIDENCE
Given our conclusion that the judgment must be reversed, we need not address defendants claims that the court erred in denying his motion for self-representation and amending the information, the prosecutor was guilty of misconduct, and the abstract of judgment must be amended.
However, we must address defendants claims concerning the sufficiency of evidence because their resolution will determine whether the burglary and robbery counts may be retried. (Burks v. United States (1978) 437 U.S. 1, 11 [double jeopardy clause prevents retrial after reversal due to insufficiency of evidence]; People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 72; e.g., People v. Grant, supra, 113 Cal.App.4th at p. 584.)
Defendant contends there was insufficient evidence to support his convictions for burglary and robbery.
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Burglary
In charging defendant with three counts of burglary, the information alleged that defendant entered Weirdstuff "with the intent to commit theft."
Section 484 proscribes various ways of committing theft, including larceny, larceny by trick or device, and theft by false pretences. (People v. Davis (1998) 19 Cal.4th 301, 304-305.) Larceny involves taking property without the consent of the owner; larceny by trick or device involves the appropriation of property, where consent to possession was fraudulently obtained from the owner; theft by false pretences involves fraudulently taking possession and obtaining title with the consent of the owner. (Id. at p. 305; People v. Ashley (1954) 42 Cal.2d 246, 258.)
Section 484 provides, in relevant part, "(a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft."
One can commit theft by false pretenses when he or she intentionally passes a bad check and thereby fraudulently obtains possession and title to merchandise from a store. (See, e.g., People v. North (1982) 131 Cal.App.3d 112, 117; People v. Mason (1973) 34 Cal.App.3d 281, 288; People v. Bateman (1959) 175 Cal.App.2d 69, 75-76; see also People v. Britz (1971) 17 Cal.App.3d 743, 752 [bad check given in exchange for valuable thrift certificates].)
"A theft conviction on the theory of false pretenses requires proof that (1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation. [Citations.]" (People v. Wooten (1996) 44 Cal.App.4th 1834, 1842.) Moreover, under section 532, subdivision (b), "[i]f the conviction rests primarily on the testimony of a single witness that the false pretense was made, the making of the pretense must be corroborated." (People v. Ashley, supra, 42 Cal.2d at p. 259.)
Section 532, subdivision (b) provides, in relevant part, "Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any labor, money, or property, whether real or personal, or valuable thing, the defendant cannot be convicted if the false pretense was expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof is in writing, subscribed by or in the handwriting of the defendant, or unless the pretense is proven by the testimony of two witnesses, or that of one witness and corroborating circumstances." (Italics added.)
In People v. Mason, supra, 34 Cal.App.3d 281, the court explained that uttering a check constitutes an implied representation that there are sufficient funds in the checking account to cover it. Thus, if that is not true, the check can be considered a false representation. However, because of the corroboration requirement in section 532, subdivision (b), the false representation implied by the check must be corroborated. The check itself cannot provide the false representation and corroboration. (Id at p. 288.)
Defendant argues that he made no oral or written misrepresentation each time he went to Weirdstuff. He simply presented a check and obtained possession and title to the laptops. Thus, although the checks may constitute false representations, those representations had to be corroborated. He claims there was no evidence of corroboration, and therefore there is insufficient evidence to support his burglary convictions.
In People v. Fujita (1974) 43 Cal.App.3d 454, the court explained that "[c]orroborating evidence is sufficient if it tends to connect the defendant with the commission of a crime in such a way so as to reasonably satisfy the jury that the complaining witness is telling the truth; the corroboration is inadequate if it requires aid from the testimony of the witness to be corroborated in order to connect the defendant with the alleged offense. [Citations.]" (Id. at p. 470, fn. omitted.) Moreover, "[s]ince the corroborative evidence need only tend to implicate the defendant in the alleged illegal activity, it may be slight and entitled to little weight standing alone. [Citations.]" (Ibid.)
In People v. Miller (2000) 81 Cal.App.4th 1427, this court explained that "[c]orroborative evidence may be found in the defendants declarations to other persons. [Citations.] `The multiple witnesses required under Penal Code section 532, subdivision (b), need not testify to the same instance of pretense. When more than one witness testifies to a defendants false pretenses, even though made on separate occasions, the multiple witness requirement is met as long as the same type of scheme is involved and the same manner is employed. [Citations.] " (Id. at p. 1442, quoting People v. Gentry (1991) 234 Cal.App.3d 131, 139.)
Here, the testimony of different store clerks and the evidence of multiple bad checks amply corroborate the false representation that defendant implicitly made when he uttered each check under virtually identical circumstances. Accordingly, there was sufficient evidence to support defendants convictions.
Defendant notes that the jury was not instructed on theft by false pretenses and the required corroboration and claims the instructional omission compels reversal. Because we reverse the judgment, we need not address this claim.
Moreover, we find that the evidence concerning the July 17, 2004 incident was also sufficient to support a finding of theft on an alternative theory: simple larceny—i.e., a taking without consent. As noted, Ryle testified that when he was processing the sale, he was alerted not to accept defendants check. Thereafter, Ryle never accepted the check as legitimate payment for the merchandise defendant wanted to buy. Moreover, while Ryle was busy processing the transaction, defendant took the laptop and other equipment and started to leave. Ryle called him back because he had not given defendant a receipt and asked defendant to wait. When Ryle went to consult with Van Cleef, defendant left the store, got on his motorcycle, and drove away, despite the efforts of store employees to stop him.
"The elements of theft by larceny are well settled: the 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 unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property. [Citation.]" (People v. Davis, supra, 19 Cal.4th at p. 305, fns. omitted.)
Given this evidence, a jury reasonably could find that defendant took possession of the Weirdstuff merchandise without consent and left with the intent to steal it.
Robbery
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.)
To convict defendant of robbery, the jury had to find that (1) a person had possession of property of some value however slight; (2) the property was taken from that person or from his immediate presence; (3) the property was taken against the will of that person; (4) the taking was accomplished by either force or fear; and (5) the property was taken with specific intent permanently to deprive that person of the property. (See CALJIC No. 9.40.)
Here, the information alleged that defendant took a laptop "in the possession of James Van Cleef, from [his] person and immediate present and against [his] will by means of force or fear."
Defendant claims that there was insufficient evidence that he took the laptop against the will of Van Cleef. He notes Van Cleefs testimony that he personally did not know what merchandise, if any, defendant had taken out of the store and followed him outside the store to find out what was going on. Given that testimony, defendant argues that the evidence does not support a finding that Van Cleef was attempting to either regain merchandise from defendant or prevent defendant from leaving with it. We disagree.
Given the commotion caused by store employees when defendant left the store, Van Cleef followed Patel out the door. Van Cleef was aware of defendants previous bad checks and wanted to talk to defendant to find out what was going on. Although Van Cleef was not certain that defendant had taken anything, he suspected that he had done so. Thereafter, Van Cleef and Patel unsuccessfully attempted to confront and stop defendant. When Van Cleef attempted to intercept him, defendant hit him with his motorcycle.
We conclude that given this evidence, a jury could reasonably find that Van Cleef was attempting either to regain merchandise he suspected that defendant might have taken or prevent defendant from leaving with it or both.
Defendant asserts that robbery is simply larceny aggravated by the use of force during the taking or asportation. (See People v. Butler (1967) 65 Cal.2d 569, 572, disapproved on other grounds in People v. Tufunga (1999) 21 Cal.4th 935, 956.) He claims that here, the theft was not larceny but theft by false pretenses, which, unlike larceny, has no asportation element and is complete as soon as one fraudulently gains possession and title. Accordingly, he argues that the use of force after theft by false pretenses cannot transform that theft into robbery. Rather, the use of force would constitute only a separate battery.
Although defendants theory may be legally correct in the abstract, its application here rests on a faulty premise that the evidence of the July 17, 2004 incident establishes only theft by false pretenses. As noted, however, the record could also support a finding of larceny, rather than theft by false pretenses. The use of force or fear to carry away loot obtained by larceny is sufficient to establish robbery. (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.)
DISPOSITION
The judgment is reversed.
WE CONCUR:
PREMO, J.
ELIA, J.