Opinion
E054053
01-31-2013
THE PEOPLE, Plaintiff and Respondent, v. JIMMY DEERING, Defendant and Appellant.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and Michael P. Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FVI902473)
OPINION
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed in part, reversed in part with directions.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and Michael P. Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jimmy Deering appeals his conviction on two counts of receiving or possessing stolen property. He asserts instructional error and insufficient evidence. We agree that the omission of an instruction defining theft was prejudicial error as to one count, and we reverse. We affirm the conviction as to the other count.
PROCEDURAL HISTORY
Defendant was charged with one count of running a chop shop (Veh. Code, § 10801; count 3) and five counts of receiving stolen property (Pen. Code, § 496, subd. (a); counts 1, 2, 4, 5 & 6). The jury was unable to reach verdicts on the chop shop count or on three of the five counts of receiving stolen property. It convicted defendant on counts 4 and 6.
All further statutory citations refer to the Penal Code unless another code is specified.
The court sentenced defendant to a term of two years eight months in state prison. Defendant filed a timely notice of appeal.
FACTS
The following facts pertain to the two counts on which defendant was convicted.
Patrick Mannery (Count 6)
Defendant operated an automobile repair business in Apple Valley, specializing in Porsches. In November 2008, Patrick Mannery hired defendant to work on his Porsche 911. Mannery was introduced to defendant by a friend. Mannery engaged defendant to do some "basic stuff" to his Porsche, including an oil change and replacing the shock absorbers.
After that service, Mannery's distributor failed. Defendant came to repair it, but told Mannery that the distributor was "burned out" and that he needed a new engine. Defendant offered to replace the engine with one he had that was "way better" than Mannery's. He offered to replace the engine in exchange for the old engine and about $1,800. Mannery agreed, and in December 2008, defendant brought a replacement engine to Mannery at his mother's house and removed the engine from Mannery's car. Mannery thought the replacement engine looked old and in much worse condition than the one defendant removed from Mannery's car. Defendant acknowledged that it was old, but said that it just needed to be cleaned up and it would be much better than Mannery's original engine. Mannery allowed defendant to put the replacement engine in his car. However, after he had driven the car only three times, and after he had paid defendant the $1,800, the engine broke down. Prior to this, Mannery had also paid defendant $700 to replace his clutch, but defendant never did the replacement.
Mannery called, emailed, and texted defendant, asking him to fix the engine, but defendant gave excuses why he could not help Mannery with the broken engine. A few months later, defendant had Mannery drive the car to his shop. He test drove the car and told Mannery that he could fix it. However, Mannery told defendant that he wanted his original engine back. Defendant agreed to reinstall it, and Mannery left the car at defendant's shop. Months passed, and Mannery still did not get his car back from defendant. Mannery repeatedly called and texted defendant, pleading for defendant to return his car, but defendant continually offered excuses.
About four months later, in July 2009, Mannery went to defendant's shop and found his car parked outside. His car had no engine or transmission in it. Mannery tried to reach defendant to find out what happened to his car, but could not reach him. Mannery contacted the California Highway Patrol (CHP). The following day, Mannery had his car towed back home to Long Beach.
Four days later, defendant called Mannery and arranged to meet. Mannery agreed to give defendant an additional $500 to deliver the original engine and transmission, reinstall them, make several additional repairs, and provide Mannery with a one-year warranty. They entered into a written agreement, and Mannery paid defendant the $500.
Defendant never delivered the engine or transmission. Eventually Mannery arranged to pick up what defendant told him was his original engine from defendant's home in Victorville. Defendant was not there, but his brother was. Defendant's brother gave Mannery a work order for $500 even though Mannery had already paid the $500. Mannery recognized defendant's signature on the invoice. The invoice also had a signature in the name of Patrick Mannery, but it was not Mannery's signature.
Mannery took the engine home. Four or five days later, Officer Yokley of the CHP came to Mannery's home and inspected the engine. Several days later, Yokley returned and told Mannery that the engine he had received from defendant was stolen. Yokley confiscated the engine.
A few days later, defendant called Mannery and told him to destroy the work order and that he would give Mannery a new engine. Instead, Mannery gave a copy of the work order to Yokley. Mannery never got his engine or transmission back.
Mark Fraser (Count 4)
In April 2009, Mark Fraser hired defendant to work on a 1988 Porsche 911 that Fraser had bought two weeks earlier. The car was "pretty beat up" and needed a new clutch, brakes, a tune-up, and a "pretty long list" of other repairs. Fraser and defendant agreed, through a series of emails, to the work that needed to be done, and early in April 2009, defendant picked up the car at Fraser's home and said he would take it to his shop. There was no written contract between defendant and Fraser and no agreement as to how long the repairs would take. Fraser agreed to pay defendant $2,000 for parts and $1,200 for labor. Fraser paid defendant $1,500 up front by check.
In the following weeks, Fraser emailed defendant about the status of the car. Defendant replied that things were "great" and "going as planned." Around the end of April, defendant told Fraser that the car was running and would be ready in a few more days, but in order to accomplish that, defendant needed another $1,000. Defendant went to Fraser's home and Fraser paid him the $1,000 in cash. After a while had passed, Fraser called and emailed defendant repeatedly to find out the status. Defendant always responded that there was some small thing that still needed to be addressed.
In June 2009, Fraser contacted Detective Elfelt of the Orange police. Elfelt contacted defendant, and defendant agreed to have Fraser's car ready for him to pick up by a certain date. Defendant made arrangements to meet Fraser at a location near Fraser's home on June 16 and give him the car. They agreed that defendant would call Fraser and tell him when he was on his way to the location, but defendant never called. The next day, Fraser discovered that defendant had emailed him around 2:00 or 3:00 a.m. saying he was in Arizona trying to find parts for Fraser's car but that his car had broken down.
On June 18, Fraser arranged with the San Bernardino County Sheriff's Department to have a deputy meet him across the street from defendant's shop. Deputy Chadwell met him and "gained access" to the shop although it was not open for business. Fraser found his car inside the shop. The car was in "bad shape": It had no engine or transmission, and gauges were missing. Two of the tires were lying next to the car. Fraser did not find the engine or the transmission in the shop. At no point had Fraser given defendant permission to remove the engine or transmission. Fraser called a tow truck to take the car to his home.
Detective Elfelt advised Fraser to send a certified letter to defendant demanding the property missing from his car. Fraser sent the letter to defendant's home and business addresses. He also hired an attorney to assist him. In the following days, defendant texted Fraser, saying that he would get his missing property back.
Several months later, after the case had been transferred to the CHP in Apple Valley, Detective Yokley returned Fraser's engine and transmission. Yokley had determined that defendant had sold the engine to Robert Weber and the transmission to someone out of state. Fraser paid another shop to reinstall the engine and transmission.
When Officer Yokley contacted defendant about Fraser's car, defendant said that Fraser owed him money and so he was holding on to the engine and transmission. He said they were in his storage unit. Yokley told him that the engine and transmission had been reported stolen. He told defendant not to move or sell the items. Yokley asked defendant to come to his office to tell his side of the story. At that point, Yokley did not know if a crime had been committed or if it was "just a dispute between an unhappy customer and shop owner." Defendant agreed to come in on August 13, but he did not do so.
Shortly after that date, Yokley began to receive additional reports of stolen car parts from other people who entrusted their cars to defendant. Yokley got a warrant to search defendant's house and shop, and ultimately arrested him.
The following facts pertain to the remaining counts:
Konstantin Golovchinsky (Count 1)
The information does not specify a victim as to count 1. The prosecutor told the jury that count 1 pertained to Golovchinsky.
Golovchinsky owned a 1985 Porsche 911. The vehicle was stolen from his parking spot at an apartment complex in Culver City on April 17, 2009. Defendant had serviced the Porsche for about two years, from the time Golovchinsky got it until it was stolen. Defendant had been recommended to Golovchinsky via an online bulletin board used by Porsche owners. Golovchinsky never got the car back. However, a couple of months after it was stolen, Officer Yokley contacted him about the engine defendant had delivered to Mannery. With Golovchinsky's assistance, Yokley determined that the engine was the one stolen from Golovchinsky. He also identified a seat found in defendant's shop as one from his Porsche.
Cameron Chow (Count 2)
Cameron Chow hired defendant to rebuild his Porsche's engine and transmission in exchange for his Honda Civic and $1,000. According to Chow, the Honda was to be given to defendant only upon completion of the work on the Porsche. After some time had passed, and defendant had asked Chow to give him the Honda early in order to finish the job, Chow asked for his engine and transmission back. After eight months had passed and Chow had not received them, Chow contacted the police and reported his engine and transmission stolen. Defendant sold Chow's engine and transmission. When asked why, defendant told police that it was because Chow had agreed to give defendant his Honda but did not.
Teresito Villanueva (Count 5)
Teresito Villanueva hired defendant to rebuild his engine and to install a new clutch. Villanueva paid defendant $2,000 up front with the understanding that the rest was due upon completion in four to six weeks. Six weeks passed, and defendant had not returned the engine. After eight months had passed, and after making several requests for his engine back, Villanueva reported the engine stolen to police. Defendant later told police that he sold Villanueva's engine to a Porsche dealership.
LEGAL ANALYSIS
1.
DEFENDANT HAS FAILED TO SHOW THAT THE COURT WAS REQUIRED TO
INSTRUCT ON A CLAIM-OF-RIGHT DEFENSE
Section 496, subdivision (a) provides, in pertinent part:
"Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. . . . [¶] A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property."
"Theft" includes all forms of larceny, including embezzlement, larceny by trick and obtaining property by false pretences. (§§ 484, 487, 490a, 503; People v. Creath (1995) 31 Cal.App.4th 312, 318.) Embezzlement is "'the fraudulent misappropriation of property by a person to whom it has been entrusted.' [Citation.] 'The gist of the offense is the appropriation to one's own use of property held by him for devotion to a specified purpose other than his own enjoyment of it.' [Citation.]" (People v. Creath, ibid.) Accordingly, even if the vehicles and parts were not "stolen" in the most conventional sense of that word, defendant could nevertheless be convicted of possessing stolen property even if he had no intent to deprive the owners of the vehicles when he took them to perform repairs but then wrongfully retained the vehicles entrusted to him for repairs and/or misappropriated parts removed from the vehicles.
Defendant contends that it was his defense that he lawfully obtained possession of the property when the victims engaged him to perform repair services, and that he believed that he had the right to retain the victims' property until he had been paid in full for his services. He contends that there was substantial evidence presented from which the jury could infer that defendant believed he had a lawful claim, and that he was therefore entitled to have the jury instructed on a claim-of-right defense. Defendant did not request a jury instruction on this defense, and none was given. Defendant contends that because a claim of right is a defense to a theft charge where the property was lawfully obtained but allegedly wrongfully withheld from its owner, the trial court had a sua sponte duty to instruct on the claim-of-right defense.
Although some of the alleged victims had entered into agreements with an express mechanic's lien provision, others did not. However, a service lien arises by operation of law if the registered owner of an automobile fails to pay the compensation which is legally owed for the performance of repairs or labor upon the automobile. The lien arises "at the time a written statement of charges for completed work or services is presented to the registered owner or 15 days after the work or services are completed, whichever occurs first." (Civ. Code, § 3068, subd. (a).)
"The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery. At common law, a claim of right was recognized as a defense to larceny because it was deemed to negate the animus furandi, or intent to steal, of that offense. [Citation.]" (People v. Tufunga (1999) 21 Cal.4th 935, 938.)
The common law defense was codified in section 511, which provides: "Upon any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable. But this provision does not excuse the unlawful retention of the property of another to offset or pay demands held against him." Although section 511 expressly applies only to embezzlement, our Supreme Court has held that the claim-of-right defense nevertheless applies to all forms of theft: "Arguably, the Legislature in 1927 expanded the statutory basis of the claim-of-right defense for embezzlement to all theft-related offenses when it enacted section 490a, which provides, 'Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word "theft" were substituted therefor.' [Citations.] Consequently, section 511 may be read as providing a statutory claim-of-right defense to all theft-related charges, as broadened from embezzlement through the provisions of section 490a." (People v. Tufunga, supra, 21 Cal.4th at pp. 952-953, fn. 4; see also People v. Fenderson (2010) 188 Cal.App.4th 625, 643-644.)
In general, a trial court has a sua sponte duty to instruct on a defense "'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 157.) With respect to a claim-of-right defense, the trial court is not required to instruct on the defense "'unless there is evidence to support an inference that appellant acted with a subjective belief he or she had a lawful claim on the property.' [Citation.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1145, italics omitted.) Although a trial court need not instruct on the defense where the supporting evidence is "minimal and insubstantial," doubts as to the sufficiency of the evidence should be resolved in the accused's favor. (Ibid.) Whether or not the evidence provides the necessary support for drawing that particular inference is a question of law (ibid.), which we review independently.
Here, although defendant claims that he relied on the defense of claim of right and that substantial evidence supported the defense, he does not cite to any specific evidence which might support the defense, nor does he cite to any portion of the record which indicates that he intended to rely on that defense. An appellant has the burden of showing both error and prejudice. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) To meet that burden, the appellant must provide reasoned legal analysis, supported by citations to relevant legal authority and by citation to the record. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) It is not our job to comb the record to ascertain whether defendant relied on the defense or whether there is evidence which would have supported the defense. (See Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 871.) This is true even where the standard of review is de novo. Even though review is de novo, review is limited to issues which have been adequately raised and supported in the appellant's briefs, i.e., by adequate argument and analysis and citation to facts in the record which support the appellant's contentions. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6, citing Kim v. Sumitomo Bank, supra, 17 Cal.App.4th 974.)
Our review of the record does show that defendant's closing argument indicates that he thought he had the right to keep Fraser's parts because Fraser did not pay him. However, there is no evidence of which we are aware that defendant ever told Fraser that the work had been completed and that Fraser failed or refused to pay for the work defendant had done. Similarly, we are not aware of any evidence that defendant completed the work Mannery contracted for and that Mannery failed or refused to pay him, or of any indication in the record that defendant intended to rely on a claim-of-right defense with respect to Mannery. Accordingly, defendant has failed to demonstrate that the trial court had a duty to instruct on the claim-of-right defense with respect to either count 4 or count 6.
2.
THE OMISSION OF AN INSTRUCTION DEFINING THEFT WAS NOT HARMLESS
AS TO COUNT 6
The court's instruction to the jury on receiving stolen property stated: "The defendant is charged in Counts 1, 2, 4, 5 and 6 with receiving stolen property. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant concealed or withheld property that had been stolen; [¶] AND [¶] 2. When the defendant concealed or withheld the property, he knew that the property had been stolen. [¶] Property is stolen if it was obtained by any type of theft, or by burglary or robbery. Theft includes obtaining property by larceny, embezzlement, false pretense, or trick."
Defendant did not request any further instruction on receiving stolen property or explaining the elements of the various theft offenses referred to in the instruction. He now contends that the trial court had a sua sponte duty to instruct the jury on the elements of each form of theft stated in the instruction. He contends that the evidence raised a question whether he took the property with the intent to permanently deprive the owners of possession. He also contends that because he obtained each of the vehicles with the owner's consent, the evidence raised a question whether he obtained their consent by false pretense or trick. He contends that the absence of an instruction stating the elements of larceny and of theft by false pretense or trick left the jury with no ability to determine whether the property was stolen.
In general, an instruction defining theft offenses is not required in a prosecution for receiving stolen property. (See CALCRIM No. 1750.) However, a trial court must, "even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case." (People v. Carter (2003) 30 Cal.4th 1166, 1219.) Based on that principle, in People v. MacArthur (2006) 142 Cal.App.4th 275, the court held that where the evidence raises a question as to whether the property which was the subject of a charge of receiving or possessing stolen property had been stolen, the trial court has a sua sponte duty to instruct the jury with the definition of "stolen" and "theft." (Id. at p. 280.) Failing to do so may "leav[e] the jury with no basis for determining whether the [property] had been stolen." (Ibid.)
In People v. MacArthur, supra, 142 Cal.App.4th 275, the evidence showed that the defendant's girlfriend regularly took items of jewelry belonging to her mother and pawned, then redeemed them. Because pawning property with the intent to redeem it arguably did not satisfy the stolen property element, the Court of Appeal held that the omission of an instruction defining "stolen" deprived the defendant of a jury finding on a fact essential to his conviction for receiving or possessing stolen property. (Id. at pp. 279-282.)
As to count 4, it is irrelevant whether defendant had the intent to deprive Fraser of his property when he first took possession of Fraser's car, because the undisputed evidence establishes as a matter of law that defendant embezzled the engine and the transmission. Embezzlement is the "fraudulent appropriation of property by a person to whom it has been intrusted." (§ 503; see also § 484, subd. (a).) In contrast to other theft offenses, for embezzlement the intent to deprive the owner of the use of the property does not need to exist at the time the property was entrusted to the perpetrator; rather, the intent must exist only as of the time of the misappropriation. (People v. Green (1980) 27 Cal.3d 1, 54, citing People v. Smith (1863) 23 Cal. 280 [if intent to steal is lacking at time of acquisition of property, offense is not larceny but may be embezzlement].) Defendant admitted to Officer Yokley that he sold Fraser's engine and transmission. He did not contend or produce any evidence that Fraser consented to the sale. Thus, even if it is open to question whether he harbored the intent to steal at the time he took possession of the car, it is not open to question whether he embezzled the engine and transmission after they were entrusted to him. Accordingly, no instruction defining larceny or embezzlement was required. (People v. MacArthur, supra, 142 Cal.App.4th at p. 280.) Or, even if an instruction should have been given, the omission was harmless beyond a reasonable doubt. (Id. at p. 281.)
People v. Green, supra, 27 Cal.3d 1, has been abrogated on other points by People v. Martinez (1999) 20 Cal.4th 225, 239, People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3, and People v. Guiton (1993) 4 Cal.4th 1116, 1122. (See People v. Morales (2001) 25 Cal.4th 34, 42, fn. 4.)
We discuss the standard of reversal in more detail in connection with count 6.
As to count 6, however, it is far from obvious that defendant stole Mannery's engine. Mannery engaged defendant to replace the existing engine in his car for about $1,800 and an "exchange," meaning that defendant would take Mannery's existing engine in exchange for the replacement engine plus payment of $1,800. Defendant did replace the original engine, but the replacement engine malfunctioned. Mannery demanded the return and reinstallation of the original engine, and, according to his testimony, defendant agreed to do so, but instead provided him with the engine from Golovchinsky's stolen car. Because, as Mannery himself stated, the original agreement was for a "swap" of the original engine for a replacement engine, however, the engine was not stolen unless defendant fraudulently induced Mannery to swap his good engine for one which defendant knew was defective or of lesser quality in some respect. In the absence of a fraudulent intent to deprive Mannery of his property from the outset, defendant lawfully obtained not only possession but ownership of Mannery's original engine.
In pertinent part, section 484, subdivision (a) provides: "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 . . . is guilty of theft." (Italics added.)
And, unless defendant did induce Mannery to part with his original engine by fraud, he was not obliged to return the original engine simply because the replacement engine was defective. On the contrary, assuming no fraud in the inducement for the exchange, defendant had every right to dispose of the original engine as he chose and to deal with the defects in the replacement engine either by repairing it or replacing it with a third engine. Even if the jury found that defendant agreed to return and reinstall the original engine, his failure to do so does not convert defendant's act of taking the original engine in trade into theft, unless, as stated above, he fraudulently induced Mannery to agree to the swap. Nor, contrary to the Attorney General's contentions, did defendant's failure to return the engine after having agreed to do so amount to embezzlement. If defendant intended to defraud Mannery from the outset, the crime was theft by false pretenses; if he did not act with that intention, then the engine no longer belonged to Mannery and could not be the subject of embezzlement.
Because this evidence raises a question whether defendant stole Mannery's engine, the court did have a duty to instruct on the elements of theft by false pretenses with respect to count 6. (People v. MacArthur, supra, 142 Cal.App.4th at p. 280.) The question is whether the omission requires reversal.
The prosecution must prove "'every fact necessary to constitute the crime with which [the defendant] is charged' beyond a reasonable doubt. [Citations.]" (Rose v. Clark (1986) 478 U.S. 570, 580.) Instructional error which lightens the prosecution's burden of proof on an element of the offense or an important factual issue violates the defendant's right to due process. (Ibid.) Instructional errors which violate a defendant's federal constitutional rights are reviewed under the standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Flood (1998) 18 Cal.4th 470, 499, 502-503.) Under Chapman, the error is reversible unless the reviewing court can say, beyond a reasonable doubt, that the error did not contribute to the conviction. (Chapman, at p. 24.)
A conviction for receiving stolen property requires proof that the property was, in fact, stolen. (See People v. Rojas (1961) 55 Cal.2d 252, 257-258 [receiving property which had lost its status as stolen, under erroneous belief that it was stolen, constitutes attempted receiving stolen property].) Accordingly, the property's status as "stolen" is an element of the offense.
In this case, for purposes of count 6, the absence of any instruction defining "stolen" or "theft" did reduce the prosecution's burden of proof, in that the jurors were allowed to find defendant guilty without having to analyze the evidence within the framework of the legal definitions of those terms. The prosecutor's argument exacerbated the problem by misstating the law. He implied that defendant committed theft because Mannery did not get his original engine back. However, he did not explain why defendant was obligated to return Mannery's engine after the replacement engine failed. His general theory as to what constituted theft was expressed as follows: "So the acts you're looking at is [sic]concealing or withholding stolen property. The defense made arguments, well, it wasn't really stolen. We went over that last time on Thursday, how he knew it was stolen, how it was stolen property, in fact. He did not give them what they wanted back. He kept something and did something with property that wasn't his own. That's stealing." (Italics added.) Keeping and doing "something" with property that isn't one's own is not a correct legal definition of theft. In the absence of explicit instructions stating the elements of the theory of theft on which count 6 was based, the prosecutor's argument could easily have misled jurors into believing that defendant had an obligation to return Mannery's engine, despite the terms of their original agreement to swap that engine for the replacement engine.
Moreover, the prosecutor also incorrectly asserted that defendant could be convicted on count 6 based on the removal and disappearance of Mannery's transmission. However, count 6 of the information alleged only that defendant violated section 496, subdivision (a) with respect to Mannery's engine. The instructions failed to correct that misstatement—the instructions on the receiving stolen property counts did not specify who was the victim of each of the counts, nor did they specify the property defendant was alleged to have stolen.
Given the ambiguity of the evidence and the prosecutor's misstatement of both the law of theft and the evidence which could be considered with respect to count 6, the absence of an instruction explicitly setting forth the elements the jurors needed to find in order to conclude that a theft of Mannery's engine took place cannot be deemed harmless under Chapman. Consequently, the conviction on count 6 must be reversed.
3.
SUBSTANTIAL EVIDENCE SUPPORTS THE CONVICTION ON COUNT 6 ON A
THEORY OF THEFT BY FALSE PRETENSES
Defendant contends that his conviction on count 6 must also be reversed for insufficient evidence. He contends that, for the reasons we discussed in the previous section, he could be found guilty of receiving stolen property based on possessing or withholding Mannery's engine only if there was evidence that he obtained the engine in the first place by false pretenses or trick, and that there was no such evidence. We disagree.
Although we have determined that the conviction on count 6 must be reversed for instructional error, we must address this contention as well, because reversal on the basis of instructional error requires us to remand the cause for possible retrial, while reversal on grounds of insufficient evidence precludes retrial on grounds of double jeopardy. (Burks v. U.S. (1978) 437 U.S. 1, 11.)
In reviewing a claim of insufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible and of solid value—from which a rational trier of fact could determine that the defendant is guilty beyond a reasonable doubt. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.) The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. "'[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.' [Citation.]" (Ibid.)
"'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. Miller (2000) 81 Cal.App.4th 1427, 1440.) The owner of the property must intend to transfer not only possession but ownership of the property. (People v. Riley (1963) 217 Cal.App.2d 11, 18-19.) If the conviction rests primarily on the testimony of one witness that the false representation was made and there is no writing in the defendant's hand or signed by the defendant, corroboration is required, either by the testimony of two witnesses or the testimony of one witness and corroborating circumstances. (§ 532, subd. (b).) The testimony of the complaining witness, along with circumstances which permit the inference that the defendant acted with the intent to defraud, satisfies the requirements of section 532, subdivision (b). (People v. Barker (1960) 53 Cal.2d 539, 543 [discussing former § 1110, which was in pertinent part identical to § 532, subd. (b)].) "'The corroboration required by section [532, subdivision (b)] is of the making of the pretense. [Citations.] The circumstances connected with the transaction, the entire conduct of the defendant, and his declarations to other persons may be looked to for the corroborative evidence contemplated by the law. [Citations.]' [Citation.]" (People v. Miller, supra, 81 Cal.App.4th at p. 1441.)
Here, there is ample evidence which permits the inference that defendant persuaded Mannery to trade his engine for one which defendant knew was defective. The record is rife with credible evidence that defendant, although once a reputable businessman, began stealing and embezzling from his clients in 2008 or 2009. Several of the alleged victims had had prior dealings with defendant and were sufficiently satisfied to engage him again, and a website or online forum used by owners of Porsches apparently reflected that defendant had many satisfied customers. Nevertheless, in 2008 or 2009, defendant began removing parts from cars belonging to his clients and selling them, while constantly reassuring his clients that he was working on their cars as agreed. The undisputed evidence that defendant sold car parts belonging to the victims alleged in the other four counts, without the knowledge or permission of those victims, is substantial evidence which corroborates Mannery's testimony.
The fact that some of the jurors were not persuaded by the evidence with respect to three out of the five counts of receiving stolen property does not render the evidence in support of those counts insubstantial or insufficient to corroborate the theory that defendant stole the engine from Mannery by false pretenses. Evidence is substantial if it is sufficiently probative and credible that a rational trier of fact could believe it. (People v. Guerra, supra, 37 Cal.4th at p. 1129.) It is also not relevant to sufficiency of the evidence review that the prosecutor did not explicitly rely on the theory of larceny by false pretenses, as defendant contends. A judgment may be affirmed if the evidence supports the verdict on any legally sufficient theory, unless the record affirmatively shows that the jury relied on a theory which was unsupported by the evidence. (People v. Guiton, supra, 4 Cal.4th at pp. 1129-1130.)
4.
CUMULATIVE ERROR
Finally, defendant contends that the errors he has asserted, even if not individually reversible, are cumulatively prejudicial. He fails, however, to develop the argument sufficiently to warrant review. (People v. Weaver (2001) 26 Cal.4th 876, 987 [perfunctory argument does not merit consideration on appeal].) In any event, because we have found only a single error, there is no basis for determining whether multiple errors are cumulatively prejudicial.
DISPOSITION
The judgment is reversed as to count 6 and is otherwise affirmed. The cause is remanded for further proceedings. Within 30 days after finality of this opinion, the district attorney shall inform the superior court whether he intends to retry defendant on count 6. If the district attorney declines to retry defendant on count 6, the court shall dismiss count 6 and shall resentence defendant accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
J.
We concur: RAMIREZ
P. J.
MILLER
J.