Opinion
F060657 Super. Ct. No. BF128599A
12-01-2011
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM LARK COOPER, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
PROCEDURAL AND FACTUAL BACKGROUND
A police officer saw the car appellant was driving make an illegal U-turn. When the officer stopped the car and ran a registration check using his patrol car computer, he immediately learned that the car had been reported stolen. Appellant produced a registration bearing the true owner's name. Appellant told the officer a woman named Amanda Gonzalez had given him the car, and that Amanda Gonzalez lived near the intersection of Belle Terrace and Taylor Street in Bakersfield. The officer could not locate any person by that name in that area. Appellant was arrested and charged with violating Vehicle Code section 10851, subdivision (a), as count 1 and Penal Codesection 496d as count 2. Appellant was convicted of the section 496d charge, but was acquitted of the Vehicle Code section 10851, subdivision (a) charge. A conviction under section 496d for receiving a stolen motor vehicle requires that the defendant knew the vehicle had been stolen when he received it. (In re Anthony J. (2004) 117 Cal.App.4th 718, 728.)
All further statutory references are to the Penal Code unless noted otherwise.
At appellant's trial, two witnesses testified. One was the owner of the car, who testified that he had left the car in his driveway with the engine running one morning before sunrise while he went back into his house to retrieve some food his wife had been preparing for his lunch. When he came back outside, his car was gone. The other witness was the arresting officer. The jury was told that the information "alleges that on or about July 11, 2009 William Lark Cooper did willfully and unlawfully buy or receive a stolen motor vehicle ... knowing that property to be so stolen ... in violation of Penal Code Section 496(d) [sic]." After the evidence was received, the court instructed the jury on the applicable law, telling the jury that "[t]he defendant is charged in Count 2 with receiving a stolen motor vehicle in violation of Penal Code section 496d" and instructing the jury with CALCRIM 1750.
The court orally instructed the jury as follows:
"The Defendant is charged in Count 2 with receiving a stolen motor vehicle in violation of Penal Code section [496d]. To prove that the Defendant is guilty of this crime, the People must prove that, one, the Defendant received or withheld from its owner the motor vehicle that had been stolen; and, two, when the Defendant received and/or withheld the property he knew that the property had been stolen.
"Now, property is stolen if it was obtained by any type of theft. Theft includes obtaining property by larceny, embezzlement, false pretense, or trick. To receive property means to take possession or control. Mere presence or access to the property is not enough."
After the jury heard closing arguments, which included defense counsel's argument that the People had not shown beyond a reasonable doubt that appellant knew the car he was driving had been stolen, the court submitted the case to the jury, telling them "you will be given verdict forms" and "the verdict form I think is self-explanatory." The verdict form on the section 496d charge had two options. First, "We, the Jury, empanelled to try the above entitled cause, find the defendant, WILLIAM LARK COOPER, guilty of Felony, to wit: Possession of Stolen Vehicle, in violation of Section 496d of the Penal Code, as charged in the second count of the Information." The other option said "not guilty" in place of "guilty," but was otherwise identically worded. The jury's receipt of the verdict forms was the first and only time the jurors had seen or heard anything from the court referring to the count 2 charge as "possession of" a stolen vehicle, as opposed to "receiving" a stolen motor vehicle. No party raised any objection to the wording of the verdict forms.
After about an hour of deliberations, the jury submitted a note to the court saying, "Can you please define 'Posession' [sic][?]" The court's written response was, "Possession in this case is defined by its ordinary, everyday meaning - Please see Instruction 200." Ten minutes after receiving this response from the court, the jury returned its verdict finding appellant "guilty of Felony, to wit: Possession of Stolen Vehicle, in violation of Section 496d of the Penal Code ...."
Special allegations in the information were bifurcated and were tried by the court without a jury after the jury had found appellant guilty of the section 496d charge. The court found to be true special allegations that appellant had three prior "strikes" under California's three strikes law (§§ 667, subds. (c) - (j), 1170.12, subds. (a) - (e)). The court also found true a special allegation that appellant had a prior conviction for taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)). The court refused to strike any of appellant's prior strikes and sentenced him to a term of 25 years to life. (§§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii).)
Appellant contends his section 496d conviction must be reversed because, on this record, the jurors may well have believed that appellant was guilty of possession of a stolen motor vehicle if he simply had possession of it (which, on the evidence presented, he clearly did - he was driving it), regardless of whether he knew the car had been stolen. As we shall explain, we agree with appellant and we therefore reverse the judgment.
DISCUSSION
I.
"'A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court.' [Citations.]" (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1256.) "The form of a verdict is immaterial provided the intention to convict of the crime charged is unmistakably expressed. [Citation.]" (Ibid.; in accord, see also People v. Jones (1997) 58 Cal.App.4th 693, 710; People v. Camacho (2009) 171 Cal.App.4th 1269, 1272, and People v. Paul (1998) 18 Cal.4th 698, 703.) "[T]echnical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice. [Citations.]" (People v. Webster (1991) 54 Cal.3d 411, 447; in accord, see People v. Jones, supra, at p. 710; and People v. Camacho, supra, at pp. 1272-1273.)
The court told the jury "[t]he defendant is charged in Count 2 with receiving a stolen motor vehicle" and properly instructed the jury "[t]o prove that the Defendant is guilty of this crime, the People must prove that, one, the Defendant received or withheld from its owner the motor vehicle that had been stolen; and, two, when the Defendant received and/or withheld the property he knew it had been stolen." (See CALCRIM No. 1750; People v. Martin (1973) 9 Cal.3d 687, 695; and In re Anthony J., supra, 117 Cal.App.4th at p. 728.) It was not until the jury received the verdict forms that any mention was made of a crime called "Possession of Stolen Vehicle." The jury then asked the court "Can [you] please define 'posession' [sic][?]" It is not an unreasonable inference to assume the possibility that the jurors viewed the verdict form as telling them that possession of a stolen motor vehicle was a violation of section 496d, and that their question or request to the judge was a request for an instruction on what the elements were for that crime. In other words, was it the same as, or something different than, the crime of receiving a stolen motor vehicle, on which they had already been instructed? The court's response, which referred them to an instruction stating "[w]ords and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings," could well have led to a conclusion that if the defendant possessed the car, and it was later shown to be stolen, then he was guilty of possession of a stolen vehicle in violation of section 496d.
There is another possible explanation for the jury's question about the word possession. The word possession did appear in the CALCRIM No. 1750 instruction given by the court. The first portion of the instruction is quoted above, stating the elements of the crime of receiving a stolen motor vehicle. The balance of the court's instruction stated: "Now, property is stolen if it was obtained by any type of theft. Theft includes obtaining property by larceny, embezzlement, false pretense, or trick. To
See footnote 2, ante, page 2.
'receive' property means to take possession or control. Mere presence or access to the property is not enough." The jury's question thus could have been related to its attempt to determine whether appellant had "received" the stolen vehicle. If so, the word "possession" appeared in CALCRIM No. 1750 as an aid in defining to "receive" property, not as an alternative description of the crime of 'receiving' stolen property.
We cannot say with any degree of confidence that it is "unmistakably clear" (People v. Webster, supra, 54 Cal.3d at p. 447; in accord, see People v. Jones, supra, 58 Cal.App.4th at p. 710; and People v. Camacho, supra, 171 Cal.App.4th at p. 1273) the jury's question related to the receiving issue. Appellant's possession of the stolen car was not contested at trial. He was seen by an officer driving the stolen car. He was not merely a passenger in it. (See People v. Land (1994) 30 Cal.App.4th 220.) The count 1 charge of violating Vehicle Code section 10851, subdivision (a), required a showing that the defendant drove someone else's vehicle, without the owner's consent, "with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle." (Veh. Code, § 10851, subd. (a).) The count 2 receiving charge required, as we have explained, the defendant's knowledge that the car was stolen. Appellant's defense was that the People failed to prove he had (1) the intent required for the count 1 charge, or (2) the knowledge required for the count 2 charge. Appellant argued that the evidence presented at trial was not strong enough to prove beyond a reasonable doubt that appellant knew the car was stolen.
The jury acquitted appellant on the count 1 charge and convicted him on the count 2 receiving charge. The count 1 acquittal might simply have been a result of the fact that the jury was instructed it could not find him guilty of both counts. (See People v. Jaramillo (1976) 16 Cal.3d 752; and CALCRIM 3516.) It could also, however, have resulted from a conclusion that the requisite intent was not proven, leaving only count 2 for consideration. The proof that appellant knew the car was stolen was the evidence, presented through the unrebutted testimony of the officer, that appellant told him appellant had received the car from an Amanda Gonzalez, that appellant was not cooperative and would not show the officer where Amanda Gonzalez's house was, and that no such person could be located in the area where appellant said she lived. Although this proof was sufficient for substantial evidence purposes, if that had been the issue, it was not overwhelming. Because the car had been taken from the owner's driveway when it had been left unattended and with the engine running, the car showed no obvious visible indications of theft, such as a smashed window or smashed ignition area. Four weeks had elapsed between the theft of the car from the owner and the officer's traffic stop of appellant. Appellant was driving the car in the same city in which it had been stolen.
In People v. Tilley (1901) 135 Cal. 61 (Tilley), a jury found the defendant "'Guilty of receiving stolen property.'" (Id. at p. 63.) Applying the rule that "the form of the verdict is to be regarded as immaterial, provided the intention to convict of the crime charged be unmistakably expressed" (id. at p. 62), the California Supreme Court found that the intention to convict of the crime charged was not unmistakably expressed, and reversed the conviction.
"The term 'receiving stolen property' is, for brevity of expression, often used to denote the crime that goes by that name, but it is not always so used; nor when used does it necessarily express this intent. According to the proper use of the terms, it would mean simply what it says. Used, as it is here, in conjunction with the word 'Guilty,' the expression denotes the receiving of the property under circumstances that rendered the receiving culpable, and will be equally appropriate whether the culpability intended was criminal, or illegal without being criminal, or merely immoral. Thus, it may be that the jury were satisfied from the evidence that the defendant was guilty of the receiving of the stolen goods, but were not satisfied either of his knowledge of their being stolen or as to the intent of personal gain; and that they accordingly found the fact of which they were satisfied, and omitted to find the others of which they were not satisfied; which, under theSimply put, possession of stolen property does not necessarily equate to receiving stolen property. We reach a comparable conclusion in the case presently before us - the "most natural construction" (Tilley, supra, 135 Cal. at p. 64.) of the jury's verdict is that the jury was satisfied that appellant possessed a stolen motor vehicle. That is not a crime, however, unless he also had knowledge that the car had been stolen, and thus the jury's intention to convict him of the crime charged is not "unmistakably expressed." (Id. at p. 62.)
familiar maxim, Expressio unius exclusio alterius, is the most natural construction. Or other intents in the minds of the jury might be imagined, all equally congruent with the verdict as the intent to find the defendant guilty of the particular crime charged against him. It cannot be said, therefore, that the verdict unequivocally finds the defendant guilty of the offense charged, or that it expresses an intent to do so." (Tilley, supra, 135 Cal. at p. 64.)
"A canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative." (See Black's Law Dict. (8th ed. 2004) p. 620, col. 2.)
The Tilley court pointed out that "the verdict ... fails to express the intent of finding him guilty of the crime charged in the information." (Tilley, supra, 135 Cal. at p. 63.) The Tilley court further stated: "[T]he actual verdict is 'Guilty of receiving stolen property,' which is not, according to any received meaning of the terms, equivalent to the verdict of 'Guilty' or 'Guilty as charged.' Hence such intent is not expressed in the verdict ...." (Ibid.) The case thus implies that the use of "as charged" language in the verdict would be sufficient to dispel any doubt about the jury's intent to convict of the crime charged. In the matter presently before us, the jury's verdict did say "guilty of Felony, to wit: Possession of Stolen Vehicle, in violation of Section 496d of the Penal Code, as charged in the second count of the Information." Unlike the situation in Tilley, we do have language in the verdict finding appellant guilty "as charged." Nevertheless, the crime charged in appellant's case was receiving a stolen motor vehicle, not "[p]ossession of" a stolen motor vehicle. The charging allegation in the information, read by the court to the jury, nowhere mentioned "possession." The verdict form in essence told the jury that possession of a stolen vehicle was a violation of section 496d. The court told the jury the verdict form "is self-explanatory." The jury then asked what possession meant. The court's answer did not tell the jury that appellant had to possess the car with knowledge that it had been stolen in order to convict him of a violation of section 496d. Instead, the court told the jury that possession "is defined by its ordinary, everyday meaning." Ten minutes later, the jury announced they had reached a verdict. There are several cases which have deemed defects or inconsistencies in jury verdicts to be clerical errors which did not detract from a conclusion that the verdict unmistakably expressed an intention to convict the defendant of the crimes charged. (See, e.g., People v. Trotter (1992) 7 Cal.App.4th 363; People v. Jones (2003) 29 Cal.4th 1229; and People v. Camacho (2009) 171 Cal.App.4th 1269). What distinguishes the present case from these other cases is the question from the jury asking for a definition of possession, which was listed on the verdict form as the crime charged. The court answered the question by instructing the jurors, in essence, to use its common sense. Ten minutes later the jury returned its verdict finding appellant guilty of "Possession of Stolen Vehicle." Why did the jury ask the question? Reasonable minds may differ, but based on the record, we cannot say that the jury's intent to find appellant guilty of the crime charged was unmistakably expressed by its verdict.
Although appellant has not raised the issue, and we need not and do not decide it, we note that the court's instructions in this case, first instructing on the crime of receiving a stolen motor vehicle (with the element of knowledge that the car was stolen), then telling the jury that the verdict forms containing the phrase "Possession of Stolen Vehicle" were "self-explanatory," and then instructing on the meaning of the word "possession" (with no mention of any knowledge requirement), may well have been so confusing as to constitute instructional error warranting reversal. (See People v. Dail (1943) 22 Cal.2d 642, 653; 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 666; and Pen. Code § 1259.)
II.
Respondent argues that appellant forfeited any claim of verdict form error by his failure to object in the trial court. Respondent relies on People v. Maury (2003) 30 Cal.4th 342, for the proposition that a defendant who fails to object to any variance between the verdict form and the language in the information forfeits any claim of error. That case, however, had nothing to do with a verdict form. It involved a variance between the charging allegations in the information and the instructions given at trial. It did not involve any variance between an information and a verdict form, or between instructions and a verdict form. We do not find any reference in the record that the verdict form was discussed by the parties or the court, or ever seen by appellant's counsel before it was submitted to the jury. We therefore find no waiver or forfeiture of that issue.
DISPOSITION
The judgment is reversed.
Franson, J. I CONCUR: Gomes, Acting P.J. POOCHIGIAN, J., dissenting.
I respectfully dissent and believe the entirety of the record demonstrates the jury's intent to convict appellant of receiving a stolen vehicle in violation of Penal Codesection 496d, as charged in count 2. A. Trotter, Jones, and Camacho
All further statutory citations are to the Penal Code unless otherwise indicated.
" 'There are innumerable authorities which declare that the form of the verdict is immaterial if the intention to convict of the crime charged is unmistakably expressed. [Citations.]' [Citations.]" (People v. Bratis (1977) 73 Cal.App.3d 751, 763-764.) I believe three cases are relevant to the analysis in this case.
In People v. Trotter (1992) 7 Cal.App.4th 363 (Trotter), the information alleged defendant personally used a firearm in the commission of the offenses, pursuant to section 12022.5, and the jury was properly instructed on that enhancement. (Id. at p. 369.) The preprinted verdict forms "referenced the numerically correct section ..., but purported to find that defendant 'was armed with a firearm ...,' during the commission of the offenses." (Ibid.) After the jury was discharged but prior to sentencing, the prosecutor advised the court of the discrepancy in the verdict forms. Over the defendant's objection, the court amended the verdict form by interlineations, "striking the word 'armed' and adding the words 'personally used.' " (Ibid.)
Trotter upheld the trial court's action and found the court merely corrected a clerical error in the verdict forms, and it did not modify the verdicts themselves. (Trotter, supra, 7 Cal.App.4th at pp. 369-370.) Trotter rejected defendant's argument that the error could not have been corrected by amendment.
"The revision affected only the jury's recordation of its verdict, not the actual verdict rendered. The incorrect wording was found in a preprinted verdict form given to the jury after they were properly instructed as to use. The error in the form was inadvertent, not advertent. [Citation.] The jury
filled in the form as they were instructed to do, and the court pronounced judgment for personal use. The judgment itself was never revised. This was a textbook example of clerical error." (Id. at pp. 370.)
Trotter further held the verdict forms were not ambiguous because the information accurately charged the enhancement, the jury was properly instructed, and the parties' arguments "coincided with the instructions and clearly set forth the elements which had to be proven before the finding could be made." (Trotter, supra, 7 Cal.4th at p. 370.)
In People v. Jones (2003) 29 Cal.4th 1229 (Jones), the jury found true the allegation that " '[t]he crime of murder of the first degree ... was a murder committed in the commission of rape.' " (Id. at p. 1259.) On appeal, the defendant argued the verdict form was "fatally ambiguous" because it was not clear whether the jury found him guilty of first degree murder on a rape-felony-murder theory, or found true the rape-felony- murder special circumstance. (Ibid.)
Jones held the defendant waived the issue "by failing to object to the form of the verdict when the court proposed to submit it or when the jury returned its finding. [Citation.]" (Jones, supra, 29 Cal.4th at p. 1259.) Jones further held the error was a technical defect and the jury's intent to find the rape-felony-murder special circumstance was unmistakably clear because it was properly instructed on the matter, and the prosecutor addressed the special circumstance allegations in closing arguments. (Ibid.)
In People v. Camacho (2009) 171 Cal.App.4th 1269 (Camacho), the defendant was charged and convicted of counts 1 and 3, carjacking (§ 215, subd. (a)); and counts 2 and 4, second degree robbery (§ 211). (Camacho, supra, 171 Cal.App.4th at p. 1271.) However, the verdict form for count 2 stated that the jury found the defendant guilty of " 'CARJACKING' " in violation of section " '215(a) ... as charged in Count 2 ....' " The error was not noticed by the court or the parties when the verdict was read or the jury was polled. (Id. at p. 1272, capitals and bold in original.)
Camacho rejected the defendant's argument that the verdict was ambiguous and held the jury's unmistakable intent was to convict defendant of second degree robbery as charged in count 2, "and the clerical error in the verdict form was surplusage that may be disregarded." (Camacho, supra, 171 Cal.App.4th at p. 1272.) "Where the error is in the recording of the judgment, as opposed to in the rendering of the judgment, it is clerical error which may be disregarded or corrected. [Citation.]" (Id. at p. 1273.) Camacho had "no difficulty in determining the jury intended to find defendant guilty of second degree robbery" as charged in count 2. (Ibid.)The case was tried "from start to finish with the understanding" that the defendant was charged with two counts of robbery and two counts of carjacking. The trial court read the information verbatim; the prosecutor used his opening statement to state that he would be seeking guilty verdicts for two counts of robbery and two counts of carjacking; and the jury instructions correctly defined robbery as charged in counts 2 and 4, and carjacking as charged in counts 1 and 3. (Ibid.)In closing argument, both the prosecutor and defense counsel clarified that the defendant was charged with two counts of carjacking and two counts of robbery. (Id. at pp. 1273- 1274.) At the sentencing hearing, the court and the parties treated count 2 as a conviction for robbery and not for carjacking. (Id. at p. 1274.)
Camacho concluded the incorrect wording in the verdict form was surplusage and the jury's manifest intention to convict the defendant of robbery in count 2 was clear:
"The information correctly charged the offense of second degree robbery in count two, the trial court instructed the jury on robbery in count two, the parties' arguments conformed to the information and instructions, and the jury found defendant guilty 'as charged in count 2.' It is evident that the reference to carjacking [in the verdict form] is a clerical error and the jury convicted defendant of second degree robbery." (Camacho, supra, 171 Cal.App.4th at p. 1274.)B. The jury's intent in this case
In this case, as in Jones, appellant has waived review of this issue since he did not object to the verdict form for count 2 when it was submitted to the jury or when the verdict was returned. (Jones, supra, 29 Cal.4th at p. 1259; see People v. Bolin (1998) 18 Cal.4th 297, 330.)
I agree with the majority opinion's conclusion that People v. Maury (2003) 30 Cal.4th 342, 426-427, does not support respondent's arguments as to waiver and/or forfeiture, since Maury dealt with a variance between the information and the instructions in that case. (Maj. op. at pp. 9-10.) However, I believe Jones supports respondent's position on waiver since Jones addressed the defendant's failure to object to an alleged "ambiguous" form of the verdict. (Jones, supra, 29 Cal.4th at p. 1259.)
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Moreover, as in Camacho, Jones, and Trotter, I believe the jury's unmistakable intent in this case was to convict appellant as charged in count 2 of receiving a stolen vehicle in violation of section 496d. Indeed, count 2 was tried "from start to finish" as committing the offense of receiving a stolen vehicle. (Camacho, supra, 171 Cal.App.4th at p. 1273.) The information alleged as to count 2 that appellant did "willfully and unlawfully buy or receive a motor vehicle, then and there the personal property of [the victim], which had been stolen or obtained in any manner constituting theft or extortion, knowing that property to be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling or withholding said vehicle, knowing the property to be stolen," in violation of section 496d. The court read the information verbatim to the jury at the beginning of the trial.
There was no dispute at trial that appellant was stopped while driving a stolen vehicle; the disputed question was whether appellant knew the car was stolen. In their closing arguments, both the prosecutor and defense counsel acknowledged that appellant could only be convicted of count 2 if he knew the car was stolen, and they argued whether contrary inferences could be drawn from appellant's statements when he was stopped by the officer, and the credibility of appellant's initial claim that he borrowed the car from a friend.
More importantly, the parties herein agree the jury was correctly instructed with CALCRIM No. 1750, on the elements of count 2, receiving a stolen vehicle in violation of section 496d:
"The Defendant is charged in Count 2 with receiving a stolen motor vehicle in violation of Penal Code Section 49060(p) [sic]. To prove that the Defendant is guilty of this crime, the People must prove that, one, the Defendant received or withheld from its owner the motor vehicle that had been stolen; and, two, when the Defendant received and/or withheld the property he knew that the property had been stolen.
"Now, property is stolen if it was obtained by any type of theft. Theft includes obtaining property by larceny, embezzlement, false pretenses, or trick. To receive property means to take possession or control. Mere presence or access to the property is not enough."
Finally, the entirety of the verdict form does not negate the jury's unmistakable intent to convict appellant of the charged offense in count 2 of receiving a stolen vehicle in violation of section 496d. The verdict form stated:
"We, the jury, empaneled to try the above entitled cause, find the defendant ... guilty of Felony, to wit: Possession of Stolen Vehicle, in violation of Section 496d of the Penal Code, as charged in the second count of the Information." (Italics added.)
As in Trotter and Camacho, the verdict form stated the jury found appellant guilty in count 2 of a violation of section 496d "as charged" in the information. Given the entirety of the information, the parties' arguments, and the instructions, the erroneous presence of the word "possession" in the verdict form for count 2 was surplusage subject to be disregarded. (Camacho, supra, 171 Cal.App.4th at p. 1272.) C. The jury's question about "possession"
The majority opinion finds that the jury's question about the meaning of the word "possession" indicates the jury was confused by the presence of that word in the verdict form for count 2, and that it might have found appellant guilty of count 2 simply based on his possession of a stolen vehicle, without making the requisite finding that he knew the vehicle was stolen. The majority opinion further finds the timing of the jury's note suggests the jury's question about the word "possession" was triggered by its consideration of the verdict form for count 2, and its confusion over the meaning of that word as it related to the charged offense of receiving a stolen vehicle. I respectfully disagree with these conclusions.
The word "possession" was repeatedly and correctly used in the instructions and in closing arguments in this case. It is important to note that appellant was also charged with count 1, unlawfully driving a vehicle in violation of Vehicle Code section 10851, subdivision (a). The court correctly instructed the jury with CALCRIM No. 1820 as to the elements of count 1, which appropriately used the word "possession":
"[T]he People must prove that, one, the Defendant drove someone else's vehicle without the owner's consent; and, two, when the Defendant did so he intended to deprive the owner of possession or ownership of the vehicle for any period of time. Now, a taking requires that the vehicle be moved for any distance no matter how small." (Italics added.)
As already noted, the jury was correctly instructed with CALCRIM No. 1750 as to the elements of count 2, and that instruction also correctly used the word "possession:" "To receive property means to take possession or control. Mere presence or access to the property is not enough." (Italics added.) The jury was also correctly instructed that it could only find defendant guilty of count 1 or count 2, but not of both counts.
When the jury submitted its question to the court, it did not indicate which use of the word "possession" it was asking about. The jury's note simply stated: "Can you please define 'possession,' " without linking it to any particular instruction or verdict form. Given the repeated and correct use of the word "possession" throughout the instructions, I do not believe we can conclude that the jury's question was linked to the presence of that word in the verdict form for count 2. D. Tilley
The majority opinion relies on People v. Tilley (1901) 135 Cal. 61 (Tilley)in support of the conclusion that appellant's conviction in count 2 must be reversed because of the erroneous inclusion of the word "possession" in the verdict form. Tilley held the jury's intent to convict the defendant of the charged offense in that case was not unmistakably expressed and reversed the defendant's conviction. (Id. at p. 64.) However, Tilley's decision to reverse the defendant's conviction in that case has been distinguished and criticized for two reasons.
First, the verdict form in Tilley did not contain the phrase, "of the offense charged," as does the verdict form in this case - language which Tilley suggested would have cured the error in that case. (See People v. Murray (1940) 42 Cal.App.2d 209, 215; People v. Foogert (1948) 85 Cal.App.2d 290, 297-298; People v. Reed (1980) 114 Cal.App.3d Supp. 1, 7.)
Second, Tilley was decided before the 1911 enactment of section 4 1/2, later amended as section 13 of article VI of the California Constitution, which states:
"No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.)
It has been noted that since Tilley was decided before this section of the Constitution was enacted, Tilley "was bound by the rules of strict interpretation then prevailing and that injury [was] presumed from error." (People v. Foogert, supra, 85 Cal.App.2d 290, 299; see also People v. Bratis, supra, 73 Cal.App.3d at p. 763; People v. Hartridge (1955) 134 Cal.App.2d 659, 665; People v. Chavez (1936) 11 Cal.App.2d 388, 390; People v. McKinney (1945) 71 Cal.App.2d 5, 16.) The purpose of article VI, section 13 "is to require a reviewing court to declare as a matter of law, whether the error found to be present has prejudiced the substantial rights of the party charging the error. [Citation.] It necessarily follows where ... mere technical error has been established only academically, and in addition there is a complete lack of any showing of prejudice, we must conclude that the contention so raised by defendant is not well taken." (People v. Foogert, supra, 85 Cal.App.2d at p. 299.)
To the extent a verdict may be viewed as ambiguous, we must look to the information, defendant's plea, the instructions given to the jury, and the closing arguments of counsel to aid in its construction. (People v. Paul (1998) 18 Cal.4th 698, 706; People v. Mackabee (1989) 214 Cal.App.3d 1250, 1256; People v. Jones (1997) 58 Cal.App.4th 693, 710.) I believe the verdict form for count 2 contained a mere technical error and the entirety of the information, instructions, closing arguments, and the verdict form itself lead to the conclusion that the jury found appellant guilty of count 2 as charged, receiving a stolen vehicle in violation of section 496d.
For the foregoing reasons, I would affirm the judgment.
Poochigian, J.