Opinion
C083010
11-01-2017
THE PEOPLE, Plaintiff and Respondent, v. CARLOS JUAREZ III, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF145832)
A jury found defendant Carlos Juarez III guilty of first degree burglary (Pen. Code, § 459), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), vandalism (§ 594, subd. (b)(1)), and shoplifting (§ 459.5). The trial court sentenced him to an aggregate term of four years eight months in prison: four years in this case and a consecutive eight months in another case.
Undesignated statutory references are to the Penal Code.
Defendant now contends his shoplifting conviction based on his return of shoes to a shoe store must be reversed because the trial court prejudicially erred by instructing the jury on the wrong theory of theft. According to defendant, the trial court should have instructed the jury on theft by false pretense rather than theft by larceny. We will reverse the shoplifting conviction and remand for retrial on count 4. We will otherwise affirm the judgment.
BACKGROUND
We recite those facts relevant to the contention on appeal.
Around early September 2014, Patrick Scott and defendant went to Cache Creek Casino in Scott's truck. When Scott and defendant left the casino, they went to Scott's house. Two women defendant met at the casino and a man Scott did not know also went to Scott's house. Scott saw the two women and the man using methamphetamine in his garage near his Pontiac GTO. Scott told everyone to leave.
On October 5, 2014, Scott saw defendant walking on Grand Avenue in Winters and offered him a ride in his truck. Before dropping defendant off at a bar outside Winters, Scott and defendant discussed Scott's work, including his work schedule.
On October 8, 2014, Scott's home was burglarized and "trashed" while he was at work. Among the various items taken were Scott's Pontiac GTO, a cell phone, a pair of brand new Vans shoes, and the receipt for those shoes. Anticipating that the burglar might return the shoes with the receipt, Scott called the Vans outlet store in Vacaville and alerted them to this possibility.
Around 2:50 p.m. on October 9, 2014, Sergeant David Kellis of the Vacaville Police Department saw a gray Pontiac GTO on the side of the road about a mile from the outlet mall in Vacaville. Sergeant Kellis described the person he saw in the driver's seat as a Hispanic male in his mid-to-late twenties with a shaved head and a mustache or goatee. When he returned to the area about 20 minutes later, nobody was near the car.
Around 3:45 p.m. the same day, defendant returned the stolen shoes to the Vans store using the receipt. Defendant presented the store employee with his identification and was given a cash refund of $43.10.
On October 10, 2014, Sergeant Kellis met with another officer at the location of the Pontiac GTO and learned that it had been stolen two days earlier. A search of the car revealed a cell phone that did not belong to Scott. At trial, the parties stipulated that the phone belonged to defendant. According to Scott, defendant had never been inside his Pontiac GTO.
Around a week after the burglary, a woman from Dixon called Scott and told him she found his cell phone. When Scott turned his phone on, an image of defendant's Facebook page appeared. Scott also noticed that there were messages on his phone that were sent and received by a person named "Carlos."
Defendant testified on his own behalf. He denied any involvement in the burglary and denied driving Scott's car after the burglary. He admitted returning the shoes.
DISCUSSION
A
Defendant contends the shoplifting conviction based on his return of the shoes to the shoe store must be reversed because the trial court prejudicially erred by instructing the jury on theft by larceny rather than theft by false pretense. The People agree that the trial court erroneously instructed the jury but argue the error was harmless.
Defendant was charged with shoplifting under section 459.5, which is "defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950)." (§ 459.5, subd. (a).) The jury was instructed pursuant to CALCRIM No. 1703, in relevant part, as follows: "The Defendant is charged in Count 4 with shoplifting in violation of Penal Code section 459.5. [¶] To prove that the Defendant is guilty of this crime, the People must prove that: [¶] One, the Defendant entered a commercial establishment; [¶] Two, when the Defendant entered the commercial establishment, it was open during regular business hours; [¶] and, [¶] Three, when he entered the commercial establishment, he intended to commit theft. [¶] To decide whether the Defendant intended to commit theft, please refer to the separate instruction." The jury was further instructed pursuant to CALCRIM No. 1800, which defines the offense of theft by larceny. "The crime of theft has the following elements: [¶] One, the Defendant took possession of the property owned by someone else; [¶] Two, the Defendant took the property without the owner's or owner's agent's consent; [¶] Three, when the Defendant took the property, he intended to deprive the owner of it permanently; [¶] and, [¶] Four, the Defendant moved the property, even a small distance, and kept it for any period of time, however, brief. [¶] An agent is someone who the owner has given complete or partial authority and control over the owner's property."
In 1927, the Legislature consolidated what had previously been three separate theft offenses of larceny, false pretense, and embezzlement. (People v. Williams (2013) 57 Cal.4th 776, 785 (Williams).) As part of the consolidation, the Legislature 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." (§ 490a.) As the California Supreme Court has explained, " 'The purpose of the consolidation was to remove the technicalities that existed in the pleading and proof of these crimes at common law. Indictments and informations charging the crime of "theft" can now simply allege an "unlawful taking." [Citations.] Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an "unlawful taking" has been proved. [Citations.] The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.' [Citations.]" (Williams, at pp. 785-786.)
Defendant contends, and the People agree, that the trial court should have instructed the jury on theft by false pretense as provided in CALCRIM No. 1804. That instruction reads, in relevant part: "To prove that defendant is guilty of [theft by false pretense], the People must prove that: [¶] 1. The defendant knowingly and intentionally deceived a property owner . . . by false or fraudulent representation or pretense; [¶] 2. The defendant did so intending to persuade the owner . . . to let the defendant . . . take possession and ownership of the property; [¶] AND [¶] 3. The owner . . . let the defendant . . . take possession and ownership of the property because the owner . . . relied on the representation or pretense. [¶] You may not find the defendant guilty of this crime unless the People have proved that: [¶] [A. The false pretense was accompanied by either a false writing or false token(;/.)] [¶] [OR] [¶] [(A/B). There was a note or memorandum of the pretense signed or handwritten by the defendant(;/.)][¶] [OR] [¶] [(A/B/C). Testimony from two witnesses or testimony from a single witness along with other evidence supports the conclusion that the defendant made the pretense.] [¶] . . . [¶] A false pretense is any act, word, symbol, or token the purpose of which is to deceive. [¶] [Someone makes a false pretense if, intending to deceive, he or she does [one or more of] the following: [¶] [1. Gives information he or she knows is false(./;)] [¶] [OR [¶] . . . [¶] 3. Does not give information when he or she has an obligation to do so(./;)] [¶] . . . [¶] [An owner . . . relies on false pretense, if the falsehood is an important part of the reason the owner . . . decides to give up the property. The false pretense must be an important factor, but it does not have to be the only factor the owner . . . considers in making the decision." (CALCRIM No. 1804, original italics.)
Theft by false pretense is defined in section 532. Subdivision (a) of section 532 states: "Every person who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal, . . . is punishable in the same manner and to the same extent as for larceny of the money or property so obtained." Subdivision (b) of section 532 contains the following additional requirement: "[T]he 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." --------
We agree with the parties that the trial court erred in instructing the jury. This is a case of theft by false pretense, not theft by larceny. Larceny requires " 'asportation,' " which is the carrying away of stolen property. (Williams, supra, 57 Cal.4th at p. 787.) It also requires a " 'trespassory taking,' " which is a taking without the property owner's consent. (Id. at p. 788.) Defendant may have done those things in Scott's home but he did not do those things in the shoe store. By contrast, theft by false pretense has no requirement of asportation or trespassory taking. "The offense requires only 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.' " (Id. at p. 787.) Here, the theory on which the jury was instructed was one in which the defendant took possession and carried away another's property without the owner's consent. However, the theft in this case occurred when defendant acquired money for the stolen shoes through a false representation that he was the owner of the shoes. Deceived by defendant's false representation in the form of the stolen receipt, the Vans store willingly paid defendant for the shoes in reliance on the fact that he was the owner of the shoes. Thus, defendant gained the property of the Vans store (i.e., money) with the owner's consent. It was that very consent that makes this a case of theft by false pretense. Because the jury was not instructed on the elements of theft by false pretense as described above, the jury had no occasion to decide if those elements had been satisfied. Accordingly, "[e]ven if there was sufficient evidence in the record to support such a charge, the failure to instruct on those elements violated defendant's constitutional rights to have the charges decided by a jury." (People v. Beaver (2010) 186 Cal.App.4th 107, 125 (Beaver).)
We are not persuaded by the People's contention that the instructional error was harmless. In Beaver, we held that instructional error is reversible where a jury is instructed on theft by larceny but the evidence could only support a conviction of theft by false pretense. (Beaver, supra, 186 Cal.App.4th at p. 125.) In so holding, we reasoned that to allow a conviction of theft by false pretense would relieve the prosecution of its burden to prove the additional elements of reliance and corroboration: "[W]e do not have merely a technical error. Under the theory on which the jury was instructed, the prosecution was not required to . . . prove either a representation by defendant on which [the victim] relied or corroboration. Thus, even if there was evidence in the record to support these elements, the jury was never called upon to determine if they had been established beyond a reasonable doubt. Under these circumstances, we cannot say the error did not contribute to the guilty verdict." (Ibid.)
B
Defendant contends retrial on the shoplifting count is prohibited under double jeopardy principles because there was insufficient evidence to support a conviction for theft by false pretense. We disagree.
Retrial is permitted if substantial evidence would support the verdict if proper jury instructions had been given. (People v. Hallock (1989) 208 Cal.App.3d 595, 605-610 [jury instructed on theory of § 136.1 witness intimidation not supported by the evidence, but substantial evidence supported conviction on different theory of witness intimidation so retrial was allowed]; see also People v. Young (1987) 190 Cal.App.3d 248, 254-260 [reversing rape conviction because substantial evidence supported only one of two possible legal theories and jury was not instructed as to which theory applied, but authorizing new trial because substantial evidence supported finding of rape under one theory].) In assessing the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence." (People v. Albillar (2010) 51 Cal.4th 47, 60.)
We conclude there was sufficient evidence to find defendant guilty of shoplifting based on a theory of theft by false pretense. The evidence showed that defendant burglarized Scott's home and took numerous items, including a brand new pair of Vans shoes and the receipt for those shoes. The evidence also showed that defendant engaged in the fraudulent act of falsely representing that he owned the shoes when he used the receipt to return them. In reliance on defendant's fraudulent act, the employee at the Vans store willingly refunded defendant the cost of the shoes. At trial, there was testimony from two witnesses that satisfied the corroboration element. An employee from the Vans store testified that defendant was the person who returned the shoes with the receipt. When defendant testified, he admitted that he returned the shoes. His defense was that he did not know the shoes were stolen. He claimed an acquaintance asked him to return the shoes because the acquaintance did not have identification. Under these circumstances, the evidence was sufficient to support a finding that defendant committed theft by false pretense.
DISPOSITION
The judgment is reversed as to the count 4 shoplifting conviction and the matter is remanded for retrial on that count. In all other respects, the judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
DUARTE, J.