Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Ct. No. 1090300. Hurl W. Johnson III, Judge.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., and Dawson, J.
INTRODUCTION
Appellant, Ametheus Labrennon Taylor, was charged in an information with second degree burglary (Pen. Code, § 459, count one) and receiving stolen property (Pen. Code, § 496, subd. (a), count two). The information further alleged a prior serious felony conviction within the meaning of the three strikes law and a prior prison term enhancement. Taylor was found guilty of count one and acquitted of count two after a jury trial. In a bifurcated proceeding, Taylor waived a jury trial on the remaining allegations which the trial court found true.
Unless otherwise indicated, all statutory references are to the Penal Code.
Two other prior prison term enhancements alleged in the information were subsequently dismissed.
The trial court sentenced Taylor to the midterm of two years which it doubled pursuant to the three strikes law. The court added a consecutive term of one year for the prior prison term enhancement for a total prison sentence of five years. The court granted applicable custody credits and imposed a restitution fine.
On appeal, Taylor contends the trial court instructed the jury in such a way that it could have convicted him of a legally impossible offense. Taylor also contends that CALCRIM No. 224 altered the burden of proof, requiring him to affirmatively prove his innocence.
FACTS
On February 12, 2005, Aaron Evans was working as the branch manager of a Modesto Money Mart store that cashes checks and makes consumer loans. Taylor entered the store and presented a $100 check from Raul Orozco for Evans to cash. Taylor endorsed the check by signing it in front of Evans.
Taylor told Evans he had received the check for rent. The word “rent” was written into the memorandum portion of the check. Taylor signed the check with the first name Paul rather than Raul. From the address on the check, Evans used a reverse telephone directory to call Orozco who informed him the check was fraudulent. Evans contacted the police. During the time Evans was trying to verify the check, Taylor was nervous and fidgety. He kept looking around and rocked back and forth on his feet. Taylor left the store without the check.
On February 2, 2005, Raul Orozco’s pickup truck and van were broken into. Speakers and a stereo were missing from the pickup truck. There was paperwork strewn about. At first, Orozco did not notice his checks were also stolen. Orozco did not know Taylor and did not make a check out to him. The check Taylor tried to cash at Money Mart was one of Orozco’s checks, but the handwriting and signature on the check were not his. No one else had permission to write checks on Orozco’s account. Orozco’s rent is more than $100 per month.
On February 12, 2005, Orozco received a call from a Money Mart employee asking if he made out a check to Taylor. Orozco told the employee he had not made out the check, not to cash it, and to call the police. Evans provided a Modesto police officer photocopies of Taylor’s driver’s license and the check, which was written in the amount of $100.
Taylor testified that in February 2005, he was staying with his girlfriend at the El Capitan Motel. A room there is $48 a day or $245 a week. At 10:30 p.m., Taylor and his girlfriend were walking back to their room from a liquor store when they saw a tall, thin Spanish or Hispanic man in his late 40’s or early 50’s crouched in a corner near the motel. The man, who was not Orozco, was “balled over” and appeared to be in pain.
Taylor and his girlfriend told the man he could stay in their room to get out of the cold and get some rest. The man went to their room where he went to sleep. The man said his name was Raul Orozco. When the man awoke, he asked to be taken to his home. He wanted to give Taylor a gift. They walked to the man’s home at the corner of 13th and G Streets. The man went inside the apartment, returned, and offered Taylor a check. The man asked how much Taylor paid for staying in the motel. Taylor told him he normally paid by the week, which was $250, but lately had been paying the daily rate of $48.
The man asked Taylor for his identification so he could write down the information. Taylor handed the man his identification. The man went back inside his apartment and returned with a check for $100. Taylor’s checkout time at the motel was 11:00 a.m. It was about 10:20, so Taylor was in a hurry.
Taylor tried to cash the check at the Money Mart, presenting the check to Evans. Evans asked Taylor for his identification. Taylor handed it to him. Evans said he also needed a fingerprint. Evans had Taylor endorse the check. Taylor acknowledged the signature on the back of the check was his. There was a delay in processing the check. Taylor told Evans he was in a hurry. Evans told Taylor he was unable to contact the owner of the check and he was not cashing the check. Taylor asked for his identification, which Evans returned. Taylor left to pay his rent.
Taylor stated he did not notice that the check stated “rent” on the memorandum line or that it was signed Paul instead of Raul. Taylor denied knowing the check was stolen.
BURGLARY INSTRUCTIONS
Taylor contends the trial court’s burglary instructions included both a correct legal theory and another theory that is a legal falsehood. Taylor asserts that because it cannot be discerned upon which theory the jury relied to convict him, the error is structural, necessitating reversal of his conviction as a violation of due process.
The written instructions sent with the jury for its deliberations noted that to prove the defendant committed a burglary, the People had to prove:
“1. The defendant entered a building, Money Mart, AND
“2. When he entered a building, he intended to pass or attempt to pass a forged check.
“To decide whether the defendant intended to pass a forged check please refer to the separate instructions that I will give you on that crime.
“A burglary was committed if the defendant entered with the intent to pass a forged check. The defendant does not need to have actually passed a forged check as long as he entered with the intent to do so.
“The People do not have to prove that the defendant actually committed theft, or passed a forged check.
“The People allege that the defendant intended to pass a forged check.”
Taylor focuses his argument on the portion of the instruction stating the jury had to find that if and when he entered a building, “he intended to pass or attempted to pass a forged check.” Taylor argues that the jury could have understood this to mean that it had to either find that he intended to pass a forged check, or, that he intended to attempt to pass a forged check. The latter instruction, according to Taylor, is a legal impossibility because he could not have intended an attempted crime.
The trial court’s oral instructions to the jury were not identical to the written instructions given to the jury for its deliberations. In its oral instructions, the court explained: “The defendant is charged in Count 1 with burglary. To prove the [defendant is] guilty of this crime, the People must prove, one, that the defendant entered a building, here, Money Mart, and, two, when he entered the building he intended to pass or attempted to pass a forged check. [¶ ] To decide whether the defendant intended to pass a forged check, please refer to a separate instruction that I’ll give you on that crime. [¶] A burglary was committed if the defendant entered with the intent to pass a forged check. The defendant does not need to have actually passed said forged check as long as he entered with intent to do so. People [do] have to prove that the defendant actually committed a theft or passed a forged check. And the allegation is the People allege that the defendant intended to pass a forged check.”
Taylor relies on People v. Iniguez (2002) 96 Cal.App.4th 75 which held that a conspiracy to commit an attempted murder was not a crime:
“The conduct defendant pleaded to, conspiracy to commit attempted murder, is a conclusive legal falsehood. This is because the crime of attempted murder requires specific intent to actually commit the murder, while the agreement underlying the conspiracy pleaded to contemplated no more than an ineffectual act. No one can simultaneously intend to do and not do the same act, here the actual commission of a murder. Defendant has pleaded to a nonexistent offense.” (Id. at p. 79.)
Taylor likens the trial court’s instruction that he was guilty of burglary if he intended an attempted crime to the legal impossibility of engaging in a conspiracy to commit attempted murder. Taylor argues at page 14 of his opening brief that, “the erroneous instruction allowed the jury to decide appellant’s guilt of burglary based on intent to commit an attempt, which is a legal impossibility.” We reject this argument because we do not find it reasonably likely that the jury would have read the instruction as Taylor construes it and because the challenged instruction was clarified by other, more specific instructions.
Because we resolve this issue on other grounds, we do not decide the issue of whether an intent to commit an attempt is the same legal impossibility as a conspiracy to commit attempted murder.
The reviewing court must consider the instructions as a whole to determine if error has been committed. The court may not judge a single jury instruction in artificial isolation, but must view it in the context of the trial court’s charge and the entire trial record. (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331.) “ ‘Jurors are presumed to understand and follow the court's instructions.’ ” (People v. Young (2005) 34 Cal.4th 1149, 1214; People v. Holt (1997) 15 Cal.4th 619, 662.) Jurors are also presumed to be intelligent persons capable of understanding and correlating jury instructions. (People v. Brock (2006) 143 Cal.App.4th 1266, 1277; People v. Yoder (1979) 100 Cal.App.3d 333, 338.)
“When reviewing ambiguous instructions, we inquire whether the jury was ‘reasonably likely’ to have construed them in a manner that violates the defendant’s rights.” (People v. Rodgers (2006) 39 Cal.4th 826, 873.) Taylor has selectively read the court’s burglary instruction in a manner inconsistent with how it is phrased. Reviewing the instruction, we find it reasonably likely that the jury would have construed the instruction in a manner that did not violate the defendant’s rights. The likely construction of the challenged portion of CALCRIM No. 1700 would have been that the jury had to find Taylor either passed a forged check when he entered the building, or that he attempted to pass a forged check when he entered the building. Either statement is a correct statement of what is proscribed by section 476.
Section 476 provides:
The court’s remaining CALCRIM No. 1700 instruction on burglary emphasized the jury had to find Taylor entered the Money Mart “with the intent to pass a forged check” but that he did not have to actually pass a forged check “as long as he entered with intent to do so.” The instruction directed the jury to refer to separate instructions the court would give it to “decide whether the defendant intended to pass a forged check.” The court’s next instruction was CALCRIM No. 1935, the instruction defining what constitutes the making or passing of a forged check. We find this instruction, read in conjunction with CALCRIM No. 1700, completely and accurately informed the jury of the elements of passing, or attempting to pass, a fictitious check. The court fulfilled its duty of defining the uncharged target offense underlying the burglary allegation. (See People v. Hughes (2002) 27 Cal.4th 287, 348-350; People v. Prettyman (1996) 14 Cal.4th 248, 266-267; People v. Failla (1966) 64 Cal.2d 560, 563-564.) Given the totality of the instructions, read as a whole, we find it probable that the jury harmonized the instructions. (People v. Rodgers, supra, 39 Cal.4th at p. 873, People v. Escobar (2000) 82 Cal.App.4th 1085, 1100.)
The written version of CALCRIM No. 1935 given to the jury states:
Taylor’s argument that the jury would have construed CALCRIM No. 1700 as he suggests is also unlikely because the prosecutor’s argument carefully focused on the evidence. The prosecutor reviewed Taylor’s testimony, arguing to the jury that it was unreasonable. The prosecutor noted that if Taylor “presented the check to the clerk, knew that the check was false or altered when he presented the check, he intended to defraud and intended to pass or use the check as genuine.” The prosecutor did not argue the theory that Taylor intended to commit an attempt. Instead, the prosecutor argued a proper legal theory based on the allegations, section 476, and the evidence adduced at trial.
In his reply brief, Taylor makes a new argument related to CALCRIM No. 1935. The parties agreed to add the language that the People allege he attempted to pass a check for $100. Taylor contends it cannot be presumed that his attempt to pass a check for only $100 would necessarily be a felony. Taylor argues this concession is ineffective assistance of counsel. We do not agree.
It is improper to raise issues for the first time in a reply brief or during oral argument. (People v. Dixon (2007) 153 Cal.App.4th 985, 996.)
Section 476a, subdivision (b) makes it a felony to pass, draw, or utter a check for more than $200, unless he had a prior violation of section 470, 475, or 476. There was no evidence that Taylor had a prior conviction for this form of fraud and the check he tried to pass was for only $100. Taylor was convicted, however, of burglary.
A person who enters a building with the intent to commit a larceny or a felony enters without invitation. Such a party is not one of the public invited and is not entitled to enter. (People v. Salemne (1992) 2 Cal.App.4th 775, 779-780.) The entry into a building to commit securities fraud constitutes burglary. (Id. at pp. 783-784.) Intent to enter a structure to commit petty theft by false pretenses also constitutes burglary. (People v. Nguyen (1995) 40 Cal.App.4th 28, 30-35.) The act of defrauding under section 502.7 (obtaining telephone services by fraud) is a form of larceny encompassed by the burglary statute. (People v. Dingle (1985) 172 Cal.App.3d 21, 29-30.)
The crime of burglary is committed when any person enters a store with the intent to commit grand or petty larceny. (People v. Navarette (1958) 163 Cal.App.2d 151, 152.) The taking of property of even slight intrinsic value can constitute larceny in California. (People v. Martinez (2002) 95 Cal.App.4th 581, 585-586.) Taylor’s attempt to pass a forged check constituted a form of larceny. Whether passing, or attempting to pass, a forged check was a felony or a misdemeanor, it constituted a burglary. (See People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042.) This being so, the amount of the check Taylor tried to pass is irrelevant. He was, therefore, guilty of second degree burglary.
CALCRIM No. 224
Taylor contends CALCRIM No. 224 improperly couches the jury’s choices in terms of whether the circumstantial evidence points to him being guilty or innocent, rather than being guilty or not guilty. According to defendant, this places a burden on him to prove his innocence.
Defendant’s argument stems from People v. Han (2000) 78 Cal.App.4th 797, (Han). In Han, the defendant raised this same argument in connection with the trial court's rejection of a proposed modification of CALJIC No. 2.01 to “substitute[ ] a lack of finding of guilt for one of innocence.” (Han, supra, 78 Cal.App.4th at p. 809.) The Court of Appeal agreed the modification would have made the instruction more accurate, explaining: “We recognize the semantic difference and appreciate the defense argument. We might even speculate that the instruction will be cleaned up eventually by the [CALCRIM] committee to cure this minor anomaly, for we agree that the language is inapt and potentially misleading in this respect standing alone.” (Id. at p. 809, original italics.) However, the court went on to conclude the defendant was not harmed because other instructions, primarily the reasonable doubt instruction, prevented any confusion. (Ibid.)
We cannot agree with the Han court’s criticism of CALJIC No. 2.01. For a defendant to be found not guilty, it is not necessary that the evidence as a whole prove his innocence, only that the evidence as a whole fails to prove his guilt beyond a reasonable doubt. In other words, a not guilty verdict is based on the insufficiency of the evidence of guilt.
When considering isolated items of evidence, however, the issue is different. A particular item of evidence may fall into one of three categories: it may tend to prove guilt; it may tend to prove innocence; or it may have no bearing on guilt or innocence. If the evidence falls into the latter category, it does not support either a guilty or a not guilty verdict. In effect, the evidence is not relevant to the case and should be excluded. Thus, if a particular item of evidence, circumstantial or otherwise, is relevant to the jury’s ultimate determination, it is relevant only because it tends to prove either guilt or innocence.
CALCRIM No. 224 simply recognizes this distinction when the jury is considering the circumstantial evidence as a whole. Notably, each of the cases cited by defendant in support of his preceding argument -- that CALCRIM No. 224 should not be limited to circumstantial evidence -- also recognizes this distinction. In each, the instruction given referred to guilt and innocence rather than guilt and the absence of guilt.
CALCRIM No. 224 does not undermine the burden of proof. As explained above, the instruction does not define the burden of proof; this is done elsewhere. Although the instruction reiterates that burden, it does not do so erroneously. CALCRIM No. 224 begins: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.” Telling the jury it must be “convinced” that each essential fact has been proved “beyond a reasonable doubt” in no way undermines the applicable burden of proof. The instruction continues: “Also, before you may rely on circumstantial evidence to find a defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that a defendant is guilty.” This does not concern the burden of proof but the threshold inquiry regarding the use of circumstantial evidence. We therefore concur with People v. Anderson (2007) 152 Cal.App.4th 919, 932-934, which rejected these contentions, as well as others.
DISPOSITION
The judgment is affirmed.
In his reply brief, Taylor points out the court’s oral instruction varied from the written instruction because in the oral instruction, the court stated that the prosecutor had “to prove that the defendant actually committed theft or passed a forged check.” Although the oral pronouncement conflicted with the written instruction, a reading error is harmless if the jury received the written instructions. (People v. Prieto (2003) 30 Cal.4th 226, 255, People v. Richardson (2007) 151 Cal.App.4th 790, 802.) As noted above, the jury received the written instructions.
“Every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in Section 186.9 is guilty of forgery.”
“To prove that the defendant is guilty of passing a forged check, a felony, the People must prove that:
“1. The defendant presented a check to the clerk,
“2. The defendant knew that the check was false or altered;
“3. When the defendant presented the check, he intended to defraud;
“AND
“4. When the defendant possessed the check, he intended to pass or use the check as genuine.
“Someone intends to defraud if he intends to deceive another person to cause a loss of money.
“For the purpose of this instruction, a person includes a business.
“It is not necessary that anyone actually be defrauded or to actually suffer a financial loss as a result of the defendant’s act.
“A person alters a document if he changes a part of the document that affects a legal, financial, or property right.
“A person passes, or attempts to pass a check if he represents to someone that the document is genuine. The representation may be made by words or conduct and may be either direct or indirect.
“The People allege that the defendant attempted to pass the following documents:
“1. Check, sum of $100.”