Opinion
E052271 Super.Ct.No. SWF10000627
02-03-2012
THE PEOPLE, Plaintiff and Respondent, v. JEREMY JAMES RICHMOND, Defendant and Appellant.
Kari E. Hong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Meredith S. White, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed in part and reversed in part.
Kari E. Hong, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Jeremy James Richmond guilty of theft of a firearm (Pen. Code, § 487, subd. (d)(2); count 1); theft of a firearm magazine, a holster, and mail with a prior theft-related conviction (§§ 484, subd. (a), 666; count 2); possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3); and possession of ammunition by a felon (§ 12316, subd. (b)(1); count 4). In a bifurcated proceeding, defendant admitted that he had previously suffered two prior prison terms within the meaning of section 667.5, subdivision (b). Defendant was sentenced to a total term of four years in state prison with credit for time served as follows: middle term of two years on count 1, plus two consecutive one-year terms for the prior prison terms; sentences on counts 2, 3, and 4 were stayed pursuant to section 654. Defendant's sole contention on appeal is that his conviction on count 2 must be reversed because he had only one intent, scheme, and plan to steal multiple objects from the same victim. We agree and will reverse defendant's conviction on count 2.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
On April 9, 2010, the victim, Joseph Nemeth, a correctional officer with the Department of Corrections and Rehabilitation, went to the Hideaway Tavern. There, he met defendant and defendant's sister Ruth Richmond. The three stayed at the bar until it closed about 2:00 a.m., at which point Ruth mentioned that she and defendant would be walking home. Nemeth offered to drive defendant and Ruth home. However, instead of taking defendant and his sister to their home, Nemeth drove them all to his house, after either Nemeth invited them to his house or defendant asked Nemeth if they could all go over to Nemeth's house.
Defendant's sister will hereafter be referred to by her first name since she shares the same last name as defendant, not out of any familiarity or disrespect, but to ease the burden on the reader. (See, e.g., In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2.)
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When they arrived at Nemeth's house, Nemeth gave Ruth and defendant a tour of his house, including a view of his bedroom closet. Inside Nemeth's bedroom closet was Nemeth's Springfield XD 40 firearm, almost in plain view on a shelf, and a gun holster. The gun was loaded at the time. After the tour, the three went to the kitchen where they continued to drink alcoholic beverages. At some point, defendant went to the restroom and was gone for a long time, between 15 and 20 minutes.
Later in the evening, Nemeth saw defendant run out of the rear door. Nemeth then ran to his bedroom to check on his gun and realized it was missing. Nemeth ran out of the bedroom toward his front door and saw defendant running across his driveway with the gun at his side. Nemeth and Ruth went outside and confronted defendant in the driveway.
Ruth recalled that when they were outside, Nemeth gave defendant a hug, felt something on defendant's back, and asked defendant if he was carrying a gun. Defendant said "yes" and refused to allow Nemeth to see the gun. Defendant then immediately asked to be taken home. Ruth also recalled pulling defendant aside and asking him if he had stolen Nemeth's gun. Defendant answered, "Yes." Defendant then rapidly left the backyard through the side yard and Nemeth walked through the house. Ruth then saw Nemeth pointing a gun at defendant's face, telling him to get off his property.
Nemeth repeatedly yelled at defendant to put the gun down. Defendant eventually dropped the gun in front of Nemeth and Nemeth picked it up. Nemeth ordered defendant to leave. When defendant did not leave, Nemeth called 911. Nemeth ordered defendant to the ground, but defendant refused, saying he had removed the bullets from the gun. Defendant left the area and returned a few minutes later telling Ruth, "'Come on. Let's go. Let's go.'" Ruth apologized to Nemeth, saying that she was sorry and did not want to be a "'part of this.'" Riverside County Sheriff's deputies arrived at the scene shortly thereafter, and ordered all of them to the ground.
Defendant was arrested and searched at the scene. Deputies found items all belonging to Nemeth in defendant's possession: a magazine with ammunition, a piece of mail, and a watch. The magazine in the gun was empty, and the magazine in defendant's pocket had several rounds in it.
II
DISCUSSION
Defendant contends that multiple grand theft convictions were unwarranted because they were thefts from the same victim committed pursuant to a continuous plan or scheme and, therefore, count 2 (theft of the magazine, gun holster, and mail) must be reversed. The People concede that defendant only had one scheme in stealing Nemeth's firearm and his other personal property but argue that reversal of count 2 is not permissible where a defendant simultaneously commits grand theft of a firearm and petty theft of personal property. As explained below, the People are mistaken.
A theft becomes grand theft in three general ways. If the value of the goods taken exceeds a certain dollar amount the crime is grand theft. (§ 487, subds. (a), (b).) If the goods are taken "from the person of another," the crime is grand theft. (§ 487, subd. (c).) Finally, if the goods are of a specific type listed by statute, including "[a] firearm," the crime is grand theft. (§ 487, subd. (d)(2).)
Normally, every separate act that violates one or more statutes gives rise to a separate offense. (People v. Neder (1971) 16 Cal.App.3d 846, 851-852.) "In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. 'In California, a single act or course of conduct by a defendant can lead to convictions "of any number of the offenses charged." [Citations.]' [Citation.]" (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) However, "in a series of takings from the same individual, there is a single theft if the takings are pursuant to one continuing impulse, intent, plan or scheme, but multiple counts if each taking is the result of a separate independent impulse or intent." (People v. Packard (1982) 131 Cal.App.3d 622, 626; accord, People v. Bailey (1961) 55 Cal.2d 514, 519 (Bailey).) This rule is sometimes referred to as the "Bailey doctrine." (See, e.g., People v. Drake (1996) 42 Cal.App.4th 592, 596.)
Bailey involved a defendant who engaged in multiple acts of petty theft, with the aggregate of the petty thefts amounting to over $3,000 in public funds over one year. (Bailey, supra, 55 Cal.2d at pp. 515-516.) At the time of her conviction, the theft of property worth more than $200 was grand theft. (Id. at p. 518.) The trial court instructed the jury that "if several acts of taking are done pursuant to an initial design to obtain from the owner property having a value exceeding $200, and if the value of the property so taken does exceed $200, there is one crime of grand theft, but that if there is no such initial design, the taking of any property having a value not exceeding $200 is petty theft." (Ibid.) The defendant was convicted of a single count of felony grand theft. (Id. at p. 515.) Thereafter, she moved for a new trial and argued that the instruction was erroneous. The trial court granted the defendant's motion for a new trial, and the People appealed. (Id. at pp. 515-517.)
Our Supreme Court held that the jury was properly instructed and reversed the trial court's order granting a new trial. The court noted that the uncontroverted evidence showed that the defendant was guilty of theft, but "the question is presented whether she was guilty of grand theft or of a series of petty thefts since it appears that she obtained a number of payments, each less than $200 but aggregating more than that sum." (Bailey, supra, 55 Cal.2d at p. 518, fn. omitted.) The court explained: "The test applied . . . in determining if there were separate offenses or one offense is whether the evidence discloses one general intent or separate and distinct intents. . . . [W]here a number of takings, each less than $200 but aggregating more than that sum, are all motivated by one intention, one general impulse, and one plan, the offense is grand theft." (Id. at p. 519.)
The court concluded: "Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan." (Bailey, supra, 55 Cal.2d at p. 519.)
Bailey's "'single-intent-and-plan doctrine or test'" has been consistently applied to theft cases involving a single victim. (People v. Tabb (2009) 170 Cal.App.4th 1142, 1149; In re David D. (1997) 52 Cal.App.4th 304, 309; In re Arthur V. (2008) 166 Cal.App.4th 61, 66, 68.) Bailey clearly applies to situations where separate instances of misdemeanor theft may be aggravated to a single felony grand theft. (See, e.g., Arthur V., at pp. 68-69; People v. Brooks (1985) 166 Cal.App.3d 24, 31; People v. Slocum (1975) 52 Cal.App.3d 867, 889 [Fourth Dist., Div. Two].)
However, Bailey also has been extended to prevent a defendant from being convicted of more than one grand theft, where the takings were committed against a single victim with one intention, one general impulse, and one plan. Several cases illustrate the application of this aspect of Bailey.
In People v. Richardson (1978) 83 Cal.App.3d 853, disapproved on other grounds in People v. Saddler (1979) 24 Cal.3d 671, 682, footnote 8, the defendant was convicted of multiple felonies, including four counts of attempted grand theft, based on "a scheme whereby City of Los Angeles Controller's warrants were obtained by an unauthorized means and made payable to fictitious commercial payees for amounts in excess of $800,000 each." (Richardson, at p. 858.) Four separate warrants were forged in favor of different fictitious payees, and were going to be separately submitted through different intermediaries for payment. (Ibid.)
The Court of Appeal in Richardson relied on Bailey and reversed three of the four convictions for attempted grand theft, and held the facts showed as a matter of law there was only a single plan to steal more than $3.2 million from the county. (People v. Richardson, supra, 83 Cal.App.3d at p. 866.) "That four separate warrants were the means by which this end was to be achieved does not 'splinter' the crime into four separate offenses," since the evidence showed that defendant gave all four warrants to the same individual on the same date to precipitate the unified scheme that was carried out by other individuals. (Ibid.)
In People v. Packard, supra, 131 Cal.App.3d 622, the defendant was an employee of Paramount Studios, formed a fake production company, and submitted false invoices to bill the studio for the reproduction of nonexistent scripts. (Id. at p. 625.) The studio issued checks to the fake company several times per month, and each payment was usually several thousand dollars. (Ibid.) Over the course of three years, the studio paid the defendant's fake company over $472,000. (Ibid.) After a bench trial, the defendant was convicted of three counts of grand theft, with each count based upon invoices submitted in three consecutive years. (Id. at pp. 625-626.) The defendant relied upon Bailey and argued that he was only guilty of one count of grand theft as a matter of law because "the only reasonable conclusion supported by the evidence is that all the takings were pursuant to one general intent and scheme," and there was no reasonable basis to conclude he had "three separate schemes, each based neatly on calendar years, as distinguished from either one general scheme or a separate theft for each invoice and payment." (Packard, at p. 626.)
The appellate court in Packard agreed with the defendant's argument and found that he was only guilty of one count of grand theft as a matter of law. (People v. Packard, supra, 131 Cal.App.3d at p. 627.) The court acknowledged that whether there were separate independent takings or one general scheme was a question of fact based on the circumstances of each case. (Ibid.) The court noted, however, that the People did not contend there was a basis to show defendant had three separate yearly schemes. (Ibid.) "In the absence of any evidence from which it could reasonably be inferred that [the defendant] had three separate intents and plans, the only reasonable conclusion supported by the record is that [the defendant] had a single continuing plan or scheme for stealing money from Paramount." (Ibid.)
Bailey was again relied on to reverse multiple theft convictions in People v. Kronemyer (1987) 189 Cal.App.3d 314, where the defendant was an attorney who looted an elderly person's financial assets while acting as a conservator. (Id. at pp. 324, 364.) The defendant used four separate transactions over four days to withdraw money from several accounts, and he was convicted of four counts of grand theft. (Id. at p. 363.) The Kronemyer court held that, as in Packard and Richardson, the defendant could only be convicted of one count of grand theft because the fact "these physically separated funds required four transactions" did not avoid application of the Bailey doctrine. (Kronemyer, at p. 364; see also People v. Tabb, supra, 170 Cal.App.4th at pp. 1145-1147.)
Appellate courts in a number of other cases have applied the Bailey doctrine in considering whether a defendant may be convicted of more than one count of grand theft. (See, e.g., People v. Tabb, supra, 170 Cal.App.4th at p. 1148 [concluding that the defendant could not remain convicted of multiple theft offenses in light of jury finding the defendant committed thefts pursuant to a "'single, overall plan or objective'"]; People v. Brooks, supra, 166 Cal.App.3d at p. 31 [reversing 13 of 14 counts of grand theft stemming from the defendant's theft of auction proceeds because "the instant thefts from a single fund arising from a single auction, when seen in the light of the prosecution's own theory of a common scheme of 'kiting' auction proceeds, were the product of a general intent or overall plan, with but a single ultimate object"]; People v. Gardner (1979) 90 Cal.App.3d 42, 48 [reversing three of four counts of grand theft of an animal carcass because the defendant acted pursuant to a "single purpose and objective of wrongfully removing the hogs slain during the brief hunting episode," and stating that "the felonious act of taking carcasses constitut[ed] the gravamen of the crime as an integral part of the 'whole plan.'"]; cf. In re Arthur V., supra, 166 Cal.App.4th at p. 69 [applying Bailey to conclude that the prosecutor was permitted to aggregate the value of the damage caused by the juvenile to reach the $400 figure required for a felony vandalism conviction because the jury could have reasonably concluded that the juvenile acted pursuant to a single objective in light of the fact that "[t]he damage to the windshield and cell phone occurred within a very brief time period, in the same approximate location, and constituted the victimization of the same person"].)
As mentioned, the question of whether multiple takings are committed pursuant to one intention, general impulse, and plan is a question of fact for the jury based on the particular circumstances of each case. (Bailey, supra, 55 Cal.2d at p. 519; People v. Packard, supra, 131 Cal.App.3d at p. 626; People v. Slocum, supra, 52 Cal.App.3d 867, 888-889.) On appeal, we uphold the fact finder's conclusion on the question if that conclusion is supported by substantial evidence. (People v. Tabb, supra, 170 Cal.App.4th at pp. 1149-1150.) Where the evidence supports only one reasonable conclusion as to whether the defendant had one intention, general impulse, and plan, the question may be resolved as a matter of law as to whether the defendant should only be convicted of one count of theft. (Packard, at pp. 626-627.) "[I]ssues of fact become those of law where . . . the facts are undisputed and permit of only one conclusion . . . ." (West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 985.)
In applying Bailey and its progeny, we begin by emphasizing that while the precise issue before the Bailey court involved the aggregation of separate petty thefts to constitute a single grand theft, Bailey prohibits multiple theft convictions where the defendant commits a series of thefts pursuant to a single intention. (Bailey, supra, 55 Cal.2d at p. 519 [as previously mentioned, precluding multiple convictions where the defendant acts pursuant to "one intention, one general impulse, and one plan" (italics added) ].) However, Bailey does not prohibit multiple convictions where the defendant commits a series of thefts based on separate intents, even if the defendant acts pursuant to the same intent on each occasion. (Ibid. [in determining whether one or multiple theft offenses have been committed, the question is "whether the evidence discloses one general intent or separate and distinct intents"].)
It is undisputed here that defendant stole Nemeth's firearm and other personal property with "one intention, one general impulse, and one plan." (Bailey, supra, 55 Cal.2d at p. 519.) Accordingly, we agree with defendant that he could properly be convicted of one count of grand theft.
The People maintain "when grand theft is committed pursuant to section 487, subdivision (d)(1), (formerly subdivision 3), petty theft is not an included offense, as grand theft under subdivision (d)(1) is not related to the value of the property stolen. (People v. Piazza (1953) 115 Cal.App.2d 811, 815.)" The People quote a portion of section 487: "Grand theft is theft committed in any of the following cases: [¶] . . . [¶] (d) When the property taken is any of the following: [¶] (1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig." The People then state: "As the [c]ourt in Piazza explained, petty theft is not a lesser included offense 'where the crime charged is a type of grand theft in which value is not concerned. . . .' . . . The same reasoning applies to subdivision (d)(2) (under which [defendant] was convicted), which criminalizes theft of a firearm, as subdivision (d)(2) similarly specifies a type of property for which any theft is classified as grand theft regardless of the value of the property."
Essentially, the People argue that because petty theft is not necessarily a lesser-included offense of grand theft of a firearm and since defendant's conviction for grand theft was based on the character of the property, and not on its value, defendant could be convicted of both counts. We are not persuaded this interpretation of the statute is proper, and accordingly, reject this argument. We note that the People do not supply any case authority to support their proposition. Needless to say, we are not persuaded a logical or legal distinction can be made between value and character of the property. Regardless of the type of property stolen, all courts have held the relevant factual inquiry is whether the defendant's actions can be attributable to a single course of conduct or several criminal acts. (People v. Ortega (1998) 19 Cal.4th 686, 699-700, overruled on other grounds in People v. Reed, supra, 38 Cal.4th at pp. 1228-1229.)
As explained by the court in People v. Tabb, supra, 170 Cal.App.4th at pages 1147 and 1148: "Under the facts of this case, the parties' arguments as to lesser included offenses are misplaced. In People v. Ortega (1998) 19 Cal.4th 686 [80 Cal.Rptr.2d 489, 968 P.2d 48] (Ortega) (overruled on another point in People v. Reed (2006) 38 Cal.4th 1224 [45 Cal.Rptr.3d 353, 137 P.3d 184]), the court in the context of deciding whether theft is a necessarily included offense of robbery pointed out it was erroneous to 'treat[] every form of theft as a separate offense.' (Ortega, at p. 696.) It explained that the 'crime of theft is divided into two degrees, grand theft and petty theft. (§ 486.) Grand theft, therefore, is not a separate offense, but simply the higher degree of the crime of theft.' (Ortega, at p. 696.) It further explained that '[s]ection 487 defines grand theft to include theft of property worth more than $400 . . . and the theft of an automobile . . . . Several other statutes also define certain other forms of theft to be grand theft (e.g., §§ 487a [theft of the carcass of certain animals], 487d [theft of gold dust from a mining claim]). Section 488 states: "Theft in other cases is petty theft."' (Ortega, at p. 696.) Ortega demonstrates that grand theft by a servant, agent or employee is not a separate offense, but merely a form or species of grand theft."
The defendant in People v. Tabb, supra, 170 Cal.Appp.4th 1142 was convicted of grand theft of personal property worth over $400 (§ 487, subd. (a); count 1), grand theft by an employee (§ 487, subd. (b)(3); count 2), and petty theft with a prior (§§ 484, 666; count 3). (Tabb, at p. 1147.) The defendant appealed, claiming that he should have been convicted of a single count of grand theft because counts 1 and 2 involved the same crime charged under different theories, and the petty theft of count 3 is a lesser included offense of both counts 1 and 2. The appellate court agreed and reversed the defendant's convictions for counts 2 and 3. (Id. at p. 1145.) The court concluded that "because grand theft by an employee is merely a species of grand theft, and the evidence does not permit an inference that Tabb's thefts from his employer were committed pursuant to separate and distinct intents or schemes, Tabb may be convicted of only one count of grand theft." (Ibid.)
Accordingly, we reject the People's claim that defendant could be properly convicted of both counts 1 and 2, because his conviction for grand theft was based on the character of the property.
We also reject the People's reliance on People v. Campbell (1976) 63 Cal.App.3d 599. As the People note, "the precise issue raised by [defendant] here was not raised in Campbell . . . ." Campbell did not suggest that it was limiting the Supreme Court's decision in Bailey, and did not specifically hold "where a firearm is physically connected to other personal property at the time of the theft, multiple convictions for theft are proper." Rather, the issue in Campbell was whether multiple punishments under section 654 were proper when a defendant steals a purse containing a gun. (Campbell, at p. 614.)
Based on the foregoing, we agree with defendant that reversal of count 2 is warranted.
III
DISPOSITION
The judgment as to count 2 is reversed. The trial court is ordered to correct the abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.