Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of San Bernardino County, No. FVA802149, Dwight W. Moore, Judge.
Victoria Matthews, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington, J.
I
All further statutory references are to the Penal Code unless otherwise indicated.
A jury convicted defendant Adrian Ortega on one count of second degree commercial burglary (§ 459) and one count of grand theft of personal property (§ 487, subd. (a).)
The court sentenced defendant to 270 days in county jail and three years supervised probation.
Defendant appeals, charging the court erred when it gave an instruction on theft by larceny instead of theft by false pretenses, meaning both his convictions should be reversed. We conclude any error was harmless and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
David Cruz (Cruz) works for Trans-West Ford Truck Center (Trans-West), a company that sells truck parts. On June 26, 2008, he received a call from a man who identified himself as Carlos from Fleet Pride, another trucking company. The caller asked about ordering six Caterpillar cylinder kits that sold for $460 each. When Cruz confirmed the order, the caller said he needed to talk to a customer and he would call back with a purchase order number, which he did about an hour later.
The same afternoon, a man whom Cruz identified as defendant arrived in a private car to pick up the six kits. Defendant signed an invoice prepared by Cruz. Cruz assisted another Trans-West employee, Manuel Desantiago, with loading the kits into the trunk of defendant’s car, a midsize silver or gray sedan. Desantiago also identified defendant. Because Cruz thought it was somewhat unusual that defendant was not using a Fleet Pride truck, he wrote down the car’s license plate number, 6CIR522. No money exchanged hands and the invoice was charged to Fleet Pride’s account.
Carlos Smith, a manager for Fleet Pride, testified that defendant never worked for Fleet Pride. Fleet Pride uses a distinctive purchase order prefix. The purchase order number used by defendant for the Trans-West invoice, F062808, was not a Fleet Pride number, because Fleet Pride does not use letters. Fleet Pride employees wear company uniforms and use company trucks to pick up parts. No one from Fleet Pride was authorized to pick up cylinder kits from Trans-West. Fleet Price never received the kits.
When Fleet Pride disputed the invoice, Cruz contacted the police. The police traced the license plate and located defendant, the registered owner of the sedan, at his home address.
Terie Peters (Peters) told a sheriff’s deputy that she and defendant would often swap vehicles back and forth.
B. Defense Evidence
At the time of the trial, Peters was renting a room from defendant. Peters testified that she had traded vehicles with defendant and borrowed his car for several months, including June 2008. She claimed she had used the car on June 26, 2008, to attend a meeting and work at her church. She disputed a defense investigator’s report that she did not recall if she had the car on June 26.
Felix Sandoval met defendant in Alcoholics Anonymous. He testified defendant attended a meeting at 5:00 p.m. on June 26, 2008, in Rubidoux. Sandoval also disputed telling an investigator that he had not seen defendant that day.
Nohra Espitia was defendant’s assistant for eight years. In her office diary, she noted she was working with defendant at his home office between 9:00 a.m. and 2:00 or 2:30 p.m. on June 26, 2008. Defendant was planning to attend an Alcoholics Anonymous meeting later.
Defendant testified he has been employed as a loan consultant for 20 years. According to his daily calendar, on June 26, 2008, he worked at his home office from 8:30 a.m. until 1:30 p.m. or 1:45 p.m. At 2:30 p.m., he made a purchase at Rio Ranch Market for his group meeting later. Between 2:30 p.m. and 5:00 p.m., he returned home, driving Peters’s truck. After he learned he was being accused of theft, he went to Trans-West in January 2009 to investigate. He denied committing the charged crimes. Defendant formerly owned two Caterpillar tractors.
III
ANALYSIS
A. Standard of Review
We independently review instructional error: “[A] claim that a court failed to properly instruct on the applicable principles of law is reviewed de novo. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) In light of the overwhelming evidence against defendant, we deem such error harmless.
B. Instruction on Theft
In California, all theft offenses have been consolidated in section 484, subdivision (a), making it possible for the jury to “return a general verdict of guilty if they find an ‘unlawful taking’ has been proved.” (People v. Ashley (1954) 42 Cal.2d 246, 258.)
Based on CALCRIM No. 1800, the trial court instructed the jury on theft by larceny, which includes the element of lack of consent. The People concede that the jury should have been instructed more properly based on CALCRIM No. 1804, theft by false pretenses, which includes the elements of reliance and corroboration. (See People v. Woolsey (1936) 13 Cal.App.2d 54, 58 [theft by larceny is different than theft by false pretense.]
CALCRIM No. 1804 reads in relevant part:
“The defendant is charged [in Count ______] with [grand/petty] theft by false pretense [in violation of Penal Code section 484].
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant knowingly and intentionally deceived a property owner [or the owner’s agent] by false or fraudulent representation or pretense;
“2. The defendant did so intending to persuade the owner [or the owner’s agent] to let the defendant [or another person] take possession and ownership of the property;
“AND
“3. The owner [or the owner’s agent] let the defendant [or another person] take possession and ownership of the property because the owner [or owner’s agent] relied on the representation or pretense.
“You may not find the defendant guilty of this crime unless the People have proved that: [¶]... [¶]
“[(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(./;)]”
Had the jury been instructed based on CALCRIM No. 1804, we deem it uncontrovertible that it would have convicted defendant of theft by false pretenses. There is substantial evidence that defendant knowingly and intentionally deceived Trans-West by falsely representing himself as an employee of Fleet Pride, authorized to take possession of the Caterpillar cylinder kits. Furthermore, True-West relied on defendant’s false representations. The foregoing was supported by the testimony and evidence received from at least three witnesses, the two Trans-West employees and the Fleet Pride manager. In contrast, the evidence offered by defendant was extremely weak. The defense witnesses—including defendant’s employee and his housemate—had reasons to be biased. Even if the testimony of defense witnesses is credited, it is plausible defendant could still have accomplished the theft in the afternoon between 2:30 p.m. and 5:00 p.m. Nevertheless, defendant argues it was reversible error to give the jury instruction on theft by larceny, instead of theft by false pretenses.
C. Beaver and Fenderson
Two recent cases have addressed extensively the issue of instruction on different types of theft—People v. Beaver (2010) 186 Cal.App.4th 107 (Beaver) and People v. Fenderson (2010) 188 Cal.App.4th 625 (Fenderson).
In Beaver, the Third District held instructional error is reversible where a jury is instructed on a theft by larceny but the evidence could only support a conviction of theft by false pretenses. The Beaver court reasoned that to allow a conviction of theft by false pretenses would relieve the prosecution of its burden to prove the additional elements of reliance and corroboration: “[T]he instructions read to the jury did not include all the elements necessary for a charge of theft by false pretenses. Therefore, even 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. [¶]... [¶] [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.” (Beaver, supra, 186 Cal.App.4th at p. 125; People v. Curtin (1994) 22 Cal.App.4th 528, 531.)
Beaver and Curtin, however, were distinguished in Fenderson, which involved the error of instructing on theft by larceny instead of embezzlement. Fenderson extracted the following principles from a number of appellate cases. The courts have determined “a theft conviction may be upheld as long as there is sufficient evidence, under any theory of theft, to support the conviction, even if the jury was not instructed on the relevant theory of theft, ” especially when there is evidence of corroboration in the record. (Fenderson, supra, 188 Cal.App.4th at pp. 637-639, citing People v. North (1982) 131 Cal.App.3d 112, 117-118; People v. Kagan (1968) 264 Cal.App.2d 648, 658; People v. Counts (1995) 31 Cal.App.4th 785, 791-792.) Because there is now simply one consolidated crime of theft, technical distinctions between several types of theft are disfavored. A jury can return a general guilty verdict if an unlawful taking has been proved. (Fenderson, at pp. 638-639, citing People v. Ashley, supra, 42 Cal.2d at p. 258; North, at pp. 117-118; Counts, at p. 793; People v. Traster (2003) 111 Cal.App.4th 1377, 1389-1390.)
Fenderson also recognized that “Counts criticized the statement in Curtin that ‘the offense shown by the evidence must be one on which the jury was instructed and thus could have reached its verdict’ (Curtin, supra, 22 Cal.App.4th at p. 531) as dictum, and observed that ‘neither Curtin nor any decision cited therein actually holds there is a rule of per se reversal in such circumstances.’ ([People v.] Counts, [supra, 31 Cal.App.4th] at pp. 791-792.)” (Fenderson, supra, 188 Cal.App.4th at p. 639.)
Furthermore, Fenderson addressed Beaver and Curtin and agreed “[a]s the [Counts] court observed, ‘[i]t would obviously be very hard to explain why a theft conviction should be reversed on the grounds that the evidence showed the defendant was indeed guilty of theft, but would have been guilty of a differently denominated type of theft under a common law system which has been repealed by statute. In the words of Justice Traynor, “it is immaterial whether or not [the jurors] agreed as to the technical pigeonhole into which the theft fell.” [Citation.]’ (Id. at pp. 793-794.)” (Fenderson, supra, 188 Cal.App.4th at p. 639.)
In the present case, a jury convicted defendant of the crime of theft and the record demonstrates the required elements of reliance and corroboration for the crime of theft by false pretenses. We decline to reverse defendant’s convictions for grand theft or commercial burglary based on a technical error in the court’s instructions.
IV
DISPOSITION
We affirm the judgment.
We concur: Ramirez, P. J., Hollenhorst, J.