Opinion
F075990
09-25-2019
THE PEOPLE, Plaintiff and Respondent, v. IPOLITO MARCOS MALDONADO, Defendant and Appellant.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. PCF329720)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, for Plaintiff and Respondent.
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This appeal arises from the final judgment following appellant Ipolito Marcos Maldonado's jury trial in this criminal matter.
Maldonado was arrested for being in possession of a stolen flatbed trailer. During a subsequent investigation by the Tulare County Sheriff's Department, a search warrant was executed on his property, leading to the recovery of many items that were suspected to be stolen.
This case followed and Maldonado was convicted, inter alia, of two counts of receiving stolen property, under Penal Code section 496, subdivision (a). This appeal concerns only the latter two convictions, which Maldonado argues must be reversed on grounds of prejudicial instructional error.
Unless otherwise stated, all statutory references are to the Penal Code.
Each of the two relevant counts of receiving stolen property encompassed multiple items that were alleged to have been stolen at various times from various people or entities. Nonetheless, the prosecutor did not elect, with respect to either count, the specific act of receiving stolen property that constituted the charged crime. Maldonado argues that, under these circumstances, the court was required sua sponte to give a unanimity instruction as to both counts but failed to do so, thereby creating the potential for non-unanimous jury verdicts and, in turn, prejudicing the defense. The People concede a unanimity instruction was required but contend the error was harmless beyond a reasonable doubt.
We agree with the parties that a unanimity instruction was required as to both counts. As to prejudice, we conclude the court's failure to give a unanimity instruction was prejudicial as to one of these counts (count 5) but not the other (count 6). Accordingly, Maldonado's conviction on count 5 is reversed. The judgment is otherwise affirmed.
FACTS AND PROCEDURAL HISTORY
Prosecution Case
Maldonado's January 11 , 2016 Arrest
On January 11, 2016, Tulare County Sheriff's Deputy David Randolph made a traffic stop on a Chevrolet pickup truck pulling a flatbed Maxey trailer on Road 152 in Tulare. Maldonado was the driver. Upon contacting dispatch, Randolph learned the trailer had been reported stolen. Randolph made a request for a California Highway Patrol (CHP) traffic officer to take over the investigation. Officer Victor Leyva responded to the call and arrived at the scene.
Leyva contacted Maldonado, who was seated in the rear of Randolph's patrol vehicle. Maldonado said he had borrowed the trailer from a friend, Anthony Freeman, who lived in Visalia. Leyva arrested Maldonado (Maldonado was subsequently released on bail). The trailer was impounded.
At trial, Frank R. testified he owned the flatbed trailer and had loaned it to his father in January 2016, when it went missing. Later that month, Frank was contacted by law enforcement and retrieved the trailer from an impound yard. Frank did not know Maldonado, nor did he give him permission to have the trailer.
March 31 , 2016 Mendonsa Dairy Incident
Brandon Mendonsa was the manager and operations overseer for his father's dairy, Mendonsa Dairy, in Tulare. Mendonsa testified about an uncharged incident that occurred at the dairy on March 31, 2016. Mendonsa received a predawn telephone call from a dairy worker that day. The worker had seen a suspicious pickup parked by the dairy's commodity barn and had "smashed" its hood with the bucket of a loader he was driving. The worker was concerned the unfamiliar pickup was involved in the theft of livestock feed, such as rolled corn and canola, stored in the barn, and wanted to disable it. When Mendonsa arrived at the dairy a little later, he observed a white Chevrolet pickup truck that appeared to be stuck in the mud. The pickup's front end was damaged. Next to the pickup, on the ground, were some large plastic barrels that did not belong to the dairy.
Tulare County Sheriff's Detective Joseph Armstrong was assigned to the Agricultural Crimes Unit. He responded to Mendonsa Dairy on March 31, 2016, regarding a report of suspicious activity near the dairy's commodity barn. Upon Armstrong's arrival, he noticed a yellow bucket loader in front of a white Chevrolet pickup with a smashed hood. Maldonado was present at the scene. Armstrong inspected the pickup truck and noticed rolled corn stuck to its bed. Next to the truck were five or six plastic barrels with rolled corn in the bottoms. Armstrong arranged to have the pickup towed to Prime Towing in Tulare.
A couple of days later, on April 2, 2016, Maldonado retrieved his damaged pickup truck from Prime Towing, taking it away on a flatbed trailer. The event was captured on Prime Towing's video surveillance system and the relevant video recording was played for the jury during trial. The video showed Maldonado's pickup truck being loaded onto a flatbed trailer and taken away. The trailer used to transport the pickup was black with wood decking and a red toolbox in front. Detective Armstrong testified the flatbed trailer appeared to be one subsequently found on Maldonado's property.
Execution of Search Warrant at Maldonado's Residence on April 5 , 2016
Tulare County Sheriff's Detective John Nicholson of the Agricultural Crimes Unit investigated the Mendonsa Dairy incident. Nicholson believed Maldonado was attempting to steal livestock feed from Mendonsa Dairy and consequently suspected Maldonado had cattle of his own to feed. Nicholson drove by Maldonado's residence in an attempt to confirm his suspicions. He noticed, on Maldonado's property, a trailer with a bright red toolbox on the front; the trailer appeared to have been recently painted. Nicholson suspected the trailer was stolen from a dairy farm in the area, the Mancebo Dairy. He texted a photograph of the trailer to Mancebo Dairy's owner, who identified it as the one stolen from his dairy.
Nicholson obtained a search warrant for Maldonado's property. On April 5, 2016, sheriff's deputies executed the warrant, conducting a systematic search of Maldonado's residence and property. In addition to the flatbed trailer with the red painted tool box in front, the deputies recovered a month-old calf, a Honda pressure washer, a diesel-motor irrigation battery, cattle medication, cattle vitamins, feed bottles and syringes for cows, miscellaneous tools, irrigation tubing, lumber, and chain link fence panels. Many items on the property, including tools and equipment, were painted the same shade of bright red as the toolbox on the trailer.
March 2016 Theft from Mancebo Dairy
Steven Mancebo was a partner in the Mancebo Dairy. He testified that several items were stolen from the dairy in March 2016, including a flatbed trailer, a month-old heifer calf, a Honda pressure washer, and a diesel-motor irrigation battery.
Mancebo kept detailed records of calves belonging to the dairy, tracking their age, weight, lineage, medication schedule, and location. Calves were identified by individually-numbered ear tags rather than by branding. The ear tags were threaded through holes made in the "dead center" between the two cartilage ribs of each calf's ear. Mancebo further noted the dairy's calves were treated with an acid paste that burned off their horn buds, preventing the development of horns. The calf that was stolen from the dairy would have had the characteristic ear holes and would also have been treated with the acid paste. The calf was worth $400-$500 at the time it was stolen.
Mancebo testified the pressure washer stolen from the dairy was a Honda 3,000 psi industrial pressure washer that was used to clean calf sheds. It was bought a few months before it was stolen, for $1,100. As for the diesel-motor irrigation battery, it was valued at $200-$400.
Mancebo also noted the flatbed trailer stolen from the dairy was a 16-foot Carson trailer with a metal toolbox affixed to the front end. Mancebo had added customized LED lights encased in a steel box to the rear of the trailer.
Mancebo identified several items recovered during the search of Maldonado's property—i.e., the flatbed trailer (with the freshly painted red toolbox), the calf, the battery, and the Honda pressure washer—as belonging to the Mancebo Dairy.
Hoffman Farms Theft
Anthony Alves was the manager of Hoffman Farms, a dairy farm. He oversaw the administration of medication to the dairy's cows. The sheriff's department contacted Alves in April 2016 and asked him to come to the county yard to identify cow medications that might have been stolen from Hoffman Farms. Alves identified medication bottles, calf feeding bottles, powdered milk containers, inoculants, vitamins, syringes, and needles as the property of Hoffman Farms that had recently been stolen from a locked cabinet on its premises. Alves testified he was 99 percent certain the items were those stolen from Hoffman Farms. The approximate value of these items was a little more than $1,600 in total.
Theft from Peppard Burns
The sheriff's department also contacted Peppard Burns, a semi-retired farm manager, in connection with items recovered during the search of Maldonado's property. Burns had previously reported the theft of farm equipment. Burns identified a Makita chop saw, a bag of tools, a drill press, a battery charger, sockets, wrenches, and pliers as belonging to him. Burns remembered paying $180 for the battery charger and $180-$230 for the chop saw. Burns had not given Maldonado permission to have any of the above-described items.
Theft from Mike Faria
Mike Faria was a dairy farmer. In 2015, Faria purchased 46 rolls of irrigation tubing from Hydrotech, his usual supplier, but the tubing was never delivered. In April 2016, the sheriff's department contacted Faria in connection with 46 rolls of irrigation tubing recovered from Maldonado's property and asked Faria to verify the lot and order numbers associated with his prior order for rolls of tubing. After checking the invoice from his purchase, Faria determined the lot and order numbers affixed to the 46 rolls of irrigation tubing located on Maldonado's property were those associated with Faria's missing order. Each roll cost $70-$80 at the time of purchase.
Curtiss & Co.
Steven Curtiss was the president of Curtiss & Co., a small corporate builder/general contracting firm. In March 2016, Curtiss was developing four rental duplex units in Exeter. Curtiss rented chain link fencing from Sierra Sanitation that was erected around the perimeter of the duplex construction site to secure it. Sixteen sections of the fencing were subsequently stolen. Thereafter, a pile of lumber was also stolen. Curtiss reported both thefts to the Exeter Police Department that same month.
In May 2016, Curtiss was contacted by the Exeter Police Department to identify lumber possibly belonging to his company; the lumber had been recovered from Maldonado's property. Based on the color coating and foil backing on the lumber, along with lumber yard markings, Curtiss identified plywood and lumber found on Maldonado's property as belonging to Curtiss's company. The plywood was worth about $600 and the lumber about $100-$200.
Brian Fisher, the owner of Sierra Sanitation, was also contacted by law enforcement in May 2016 to identify security fence panels that were recovered from Maldonado's property. Fisher identified the fence panels as the ones he had rented to Curtiss & Co. He was able to identify the panels because of the distinctive color coating his company used on its panels. The fence panels were valued at $1,200.
Defense Case
Maldonado's girlfriend, Margo C., had known Maldonado for 15 years and frequented his property. She was present at Maldonado's property when the search warrant was executed there. Margo believed some of the items alleged to be stolen had been on Maldonado's property for a long time.
Maldonado testified on his own behalf to explain where the items alleged to be stolen had come from. Regarding the Maxey trailer Maldonado was pulling at the time of his arrest in January 2016, Maldonado said he borrowed it from Anthony Freeman of Visalia and did not know it was stolen. Regarding the trailer with the freshly painted red toolbox—i.e., the trailer that belonged to Mendonsa Dairy—Maldonado claimed ignorance of its presence on his property and denied any knowledge of its ownership. Maldonado testified he had never seen the trailer other than in photographs connected to the instant matter.
Law enforcement conducted a Department of Motor Vehicles records search and identified only one Anthony Freeman in Visalia. This person testified he did not know Maldonado, never owned a flatbed trailer, and did not loan any trailer to Maldonado. Maldonado subsequently testified that he borrowed the trailer from another Anthony Freeman.
Maldonado also discussed the incident at the Mendonsa Dairy in which a dairy worker smashed Maldonado's truck with a bucket loader. Maldonado said, the night before that incident, he was drinking at a friend's home and, on the way home, parked on private property to get some sleep as he was not in shape to keep driving. He was asleep when the loader smashed into him.
Regarding the calf and pressure washer belonging to the Mancebo Dairy, Maldonado said he purchased them at a swap meet in Tulare. He paid $165 for the pressure washer and a total of $600 for the calf along with some other cattle.
Regarding the 46 rolls of irrigation tubing recovered from his property, Maldonado said he got the tubing after the grape harvest, when a site foreman said the rolls were no longer needed and permitted Maldonado to take them. Maldonado said there were more than 46 rolls of tubing on his property. He was unable to explain how the rolls had the same lot and order numbers as those ordered by, and invoiced to, Mike Faria.
As for the chain link fence panels recovered from Maldonado's property, Maldonado said there were more than 16 panels on his property and they had been on the property for 13 years. He also said the markings on the lumber recovered from his property were made by a friend.
Maldonado testified he repeatedly told detectives he had receipts for some items in a bucket behind a recliner in his house, but the deputies made no effort to retrieve them.
Maldonado was eventually charged in a second amended consolidated information (information) as follows:
Count 1: Unlawful driving or taking of a vehicle, i.e., a Maxey trailer (Veh. Code, § 10851, subd. (a));
Count 2: Unlawful driving or taking of a vehicle, i.e., a trailer belonging to Mancebo Dairy (Veh. Code, § 10851, subd. (a));
Count 3: Receiving stolen property, i.e., a trailer belonging to Mancebo Dairy (§ 496d, subd. (a));
Count 4: Planting, harvesting, or processing marijuana (a misdemeanor) (Health and Saf. Code, § 11358, subd. (c));
The misdemeanor charged in count 4 is not at issue in this appeal and we have not addressed the facts underlying that charge and the conviction on that charge.
Count 5: Receiving stolen property, i.e., a calf, tools, equipment, irrigation tubing, and dairy supplements/medications (§ 496, subd. (a)); and
Count 6: Receiving stolen property, i.e., lumber and fence materials (§ 496, subd. (a)).
The information further alleged, in connection with the felony counts, that Maldonado had suffered two prior strike convictions and had served four prior prison terms. (§§ 1170.12, subds. (a)-(i), 667, subds. (b)-(i), 667.5, subd. (b).) In addition, enhancements alleging that Maldonado committed the respective offense while out of custody on bail were attached to counts 2, 3, 5, and 6. (§ 12022.1.) The jury returned guilty verdicts on all counts except for count 2, on which Maldonado was acquitted. With respect to counts 5 and 6, the jury made special findings to the effect that the value of the stolen property at issue in each of these counts exceeded $950. The jury was asked to make these special findings because, under section 496, subdivision (a) (i.e., the receiving stolen property statute), the offense of receiving stolen property is a misdemeanor if the value of the property at issue is under $950 and a felony if its value exceeds $950. After the jury delivered its verdicts, the court, in a bifurcated proceeding, found all the enhancement allegations true.
Maldonado was sentenced to an aggregate term of 12 years: an aggravated term of three years doubled to six years on count 1; consecutive terms of one year four months (one-third the midterm) on counts 3, 5, and 6, respectively; and two years for one of the on bail enhancements.
DISCUSSION
As stated above, Maldonado challenges only his convictions on counts 5 and 6. With regard to count 5, the information alleged Maldonado was in receipt of stolen property, specifically, "[a] calf, tools, equipment, irrigation tubing, and dairy supplements." (Unnecessary capitalization omitted.) The prosecution presented evidence showing the items encompassed in count 5 belonged to the Mancebo Dairy, Hoffman Farms, Mike Faria, and Peppard Burns, respectively. In count 6, Maldonado was charged with receipt of stolen property, specifically, "lumber and fence panels," belonging to Curtiss & Co. and Sierra Sanitation, respectively.
Maldonado argues the trial court was required sua sponte to instruct the jury on unanimity (pursuant to CALCRIM No. 3500) with respect to counts 5 and 6 but failed to do so. He further contends the court's failure to give a unanimity instruction was prejudicial, requiring reversal of his convictions on counts 5 and 6.
CALCRIM No. 3500 provides: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."
The People concede the trial court erred in failing to give a unanimity instruction with respect to counts 5 and 6. Specifically, the People acknowledge: "[I]t is clear that both counts 5 and 6 encompassed various different items of stolen property, taken from different victims or at different times. Since there were multiple discrete acts associated with each charge, the court was required to give a unanimity instruction to ensure that the jury agreed on which act supported each conviction." The People argue however that Maldonado suffered no prejudice on account of the court's failure to instruct the jury on unanimity.
With regard to count 5, the People contend the court's failure to give a unanimity instruction was harmless because the conviction on count 5, as well as the requisite finding that the value of the stolen property at issue in that count exceeded $950, could both be supported on the basis of the property that was stolen from the Mancebo Dairy alone. The People argue the case was essentially a credibility contest between Maldonado and various prosecution witnesses, including Steven Mancebo. The People further contend that "[Maldonado] did not put forth any evidence" to support his claims regarding the "stolen property belonging to Mancebo found in his possession - the calf, pressure washer, and diesel battery." Citing People v. Thompson (1995) 36 Cal.App.4th 843, 853, the People posit, "there was [thus] no basis for the jury to distinguish those acts" and the lack of a unanimity instruction was consequently harmless with respect to count 5.
The People's argument assumes the jury rejected Maldonado's testimony with respect to the items belonging to Mancebo Dairy, in its entirety. As discussed in more detail below, we cannot definitively say every juror rejected every aspect of Maldonado's testimony, nor can we identify whether certain aspects of his testimony were accepted and others rejected by individual jurors. Accordingly, we reject the People's contention that the lack of a unanimity instruction was harmless beyond a reasonable doubt with regard to count 5 and reverse Maldonado's conviction on this count.
The People raise a more compelling argument with respect to count 6. As noted above, the jury found the stolen property in count 6 had a value of at least $950, thereby rendering Maldonado's conviction on this count a felony. In order to find Maldonado guilty of count 6 and make a finding that the value of the relevant stolen property exceeded $950, the jury necessarily had to have unanimously agreed, at a minimum, that Maldonado was in possession of the stolen fence panels (valued at $1,200), because the lumber/plywood encompassed in this count was valued only at $700-$800 in total. We find the People's argument to this effect persuasive, and affirm Maldonado's conviction on count 6.
Standard of Review
In a criminal trial, with or without a request by the parties, the court must instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.)
A claim of instructional error can be forfeited by a defendant's failure to make some suitable form of objection at trial, except, of course, in the case of instructions the court is required to give on its own motion. Under section 1259, an appellate court can review, without objection having been made at trial, the giving, refusal, or modification of any jury instruction.
Whether a particular instruction is warranted in a particular case "entails the resolution of a mixed question of law and fact that [is] ... predominantly legal" and is therefore reviewed de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; see People v. Cromer (2001) 24 Cal.4th 889, 899.)
If we determine the trial court's instructions to the jury contain an error of state law only, we reverse the judgment only if there is a reasonable probability the defendant would have obtained a more favorable outcome absent the error. (People v. Breverman (1998) 19 Cal.4th 142, 178; People v. Watson (1956) 46 Cal.2d 818.) In case of an error of federal constitutional law, we generally reverse unless it appears beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Lamas (2007) 42 Cal.4th 516, 526; People v. Mayfield (1997) 14 Cal.4th 668, 774, overruled on other grounds by People v. Scott (2015) 61 Cal.4th 363; Chapman v. California (1967) 386 U.S. 18 (Chapman).)
Maldonado argues the Chapman standard of prejudice applies to his claims of instructional error and the People do not dispute the point. Accordingly, we will apply the Chapman standard of prejudice here. (See People v. Hernandez (2013) 217 Cal.App.4th 559, 576.)
Applicable Law on Unanimity Requirement
"As a general rule, when [the] violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty." (People v. Jennings (2010) 50 Cal.4th 616, 679.) "[I]t would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another." (People v. Russo (2001) 25 Cal.4th 1124, 1135 (Russo).)
The purpose of this rule is to eliminate the risk that a jury may return a guilty verdict even though the jurors are not all agreed on the existence of a single set of facts constituting the offense. Absent an election by the prosecutor or a unanimity instruction under conditions like this, jurors would be in danger of either (a) amalgamating evidence of several separate instances of conduct, each only amounting to partial proof of an offense, and treating the amalgamation as proof of one complete offense, or (b) dividing on the sufficiency of the proof of two or more offenses, with some jurors voting for conviction based on their belief that one set of acts constituted a complete offense, and others doing so on the basis of their belief that a different set of acts constituted the offense. (Russo, supra, 25 Cal.4th at p. 1132.)
In People v. Diedrich (1982) 31 Cal.3d 263 (Diedrich), the defendant was convicted of a single count of bribery, where there was evidence of two distinct bribes. The Diedrich court held that, in the absence of an election or unanimity instruction, the defendant's conviction had to be reversed because there was no way of ruling out the possibility that some jurors based their verdict on the evidence of one bribe and the rest based their verdict on the evidence of the other. (Id. at pp. 280-283; People v. Davis (2005) 36 Cal.4th 510, 560-561 [where the defendant was charged with a single count of robbery but record disclosed evidence of the taking of a car and the taking of jewelry from an occupant of the car, court was required sua sponte to give unanimity instruction]; People v. Norman (2007) 157 Cal.App.4th 460 [unanimity instruction required where one count of theft was alleged but evidence showed two instances of theft and prosecution argued both acts of theft supported the charge].)
In sum, when the record suggests jurors could disagree as to which act a defendant committed and yet convict him of the crime charged, the trial court has a sua sponte duty to give a unanimity instruction. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
Analysis of Maldonado's Claims
Here, with respect to counts 5 and 6, the prosecution presented evidence that showed Maldonado possessed property that was stolen from various victims at various times. The evidence therefore permitted the jury to convict Maldonado of receiving stolen property as charged in counts 5 and 6 without all jurors necessarily agreeing as to which specific acts of receiving stolen property constituted the respective crimes. As we have said, the parties agree, and we concur, that a unanimity instruction was therefore required. We must determine whether the court's failure in this regard was prejudicial as to one or both counts.
The verdict form for count 5 simply read: "We, the Jury, find the defendant IPOLITO MALDONADO, Guilty as charged in Count 5 of the Information, of RECEIVING STOLEN PROPERTY in Violation of Penal Code Section 496(a)." The verdict form for count 6 contained the identical operative language.
We will first address Maldonado's claim that his conviction on count 5 must be reversed. Count 5 alleged that Maldonado possessed a stolen calf, a stolen pressure washer, irrigation battery, stolen tools, and stolen irrigation tubing. The prosecution adduced evidence to show the calf's value was $400-$500; the pressure washer was worth $1,100; the irrigation battery was worth $200-$400; and the irrigation tubing was worth over $3,000. Maldonado testified, in the context of count 5, that the calf in his possession was purchased along with another calf and a jersey cow, for a total of $600, from an unnamed individual. As for the Honda pressure washer in his possession, Maldonado testified he paid $165-$185 for it at a swap meet in Tulare. Regarding the tools in his possession, Maldonado testified they had belonged to his deceased father. Finally, with respect to the irrigation tubing in his possession that was also encompassed by count 5, Maldonado testified it was effectively abandoned and he was permitted to take it by the foreman of the site where it was kept.
As stated above, the People concede error because the prosecution did not elect which stolen property constituted the crime charged in count 5, nor was the jury instructed on the unanimity requirement pursuant to CALCRIM No. 3500. However, the People argue the error was harmless beyond a reasonable doubt because the prosecution's evidence was convincing while Maldonado's testimony was not, reducing the case to a credibility contest that the prosecution handily won as Maldonado was convicted on all counts. We disagree with the People's contention that the trial court's failure to give a unanimity instruction as to count 5 was harmless beyond a reasonable doubt.
The instant record discloses a reasonable potential for a non-unanimous verdict on count 5. As to the charges of receiving stolen property, the jury was instructed that the prosecution had to prove (1) that "[t]he defendant received property that had been stolen"; and (2) "[w]hen the defendant received the property, he knew that the property had been stolen." Maldonado gave exculpatory explanations regarding the provenance of the items relevant to count 5 that were in his possession and how he came to possess these items. There is no way for us to determine whether the jury believed parts of Maldonado's testimony in this regard or indiscriminately rejected all of it. Indeed, the jury was instructed: "If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest." (Italics added; see CALCRIM No. 226.) We cannot definitively say the jury unanimously and completely rejected all aspects of Maldonado's testimony as relevant to count 5. Similarly, to the extent various jurors believed certain aspects of Maldonado's testimony but not others, we cannot identify the determinations made by any juror. What is clear is that, in the absence of election or a unanimity instruction, individual jurors could have convicted Maldonado based on different acts (or varying combinations of acts) of receiving stolen property. Under these circumstances, we cannot say the court's failure to give a unanimity instruction as to count 5 was harmless beyond a reasonable doubt.
The People cite Diedrich for the proposition that the failure to instruct on unanimity is harmless "where the jury's verdict implies that it did not believe the only defense offered." (Diedrich, supra, 31 Cal.3d at p. 283.) The situation here is different than Diedrich in that Maldonado provided varying explanations for his possession of the range of items at issue in count 5. --------
Turning to count 6, this count encompassed receipt of fence panels (worth $ 1,200) and lumber (including $600 worth of plywood and $100-$200 of other lumber) allegedly stolen from Curtiss & Co.'s construction site. Again, the People correctly concede the court erred in failing to give a unanimity instruction as to this count. Maldonado argues the error was prejudicial because of the possibility of a non- unanimous verdict on this count. The People posit that since the jury found, with respect to this count, Maldonado had received stolen property worth at least $950, it would necessarily and unanimously have had to find the stolen property at issue included the chain link panels valued at $1,200 because the other property encompassed by this count on its own was not worth $950. Under these circumstances, we agree with the People that the court's failure to give a unanimity instruction as to count 6 was harmless beyond a reasonable doubt.
DISPOSITION
Maldonado's conviction on count 5 is reversed. The judgment is otherwise affirmed. The matter is remanded to the trial court for further proceedings consistent with this opinion.
/s/_________
SMITH, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
FRANSON, J.