P v. Almendarez
Filed 9/4/13 P v. Almendarez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
SEAN ALMENDAREZ,
Defendant
and Appellant.
E057267
(Super.Ct.No.
FSB1200534)
OPINION
APPEAL
from the Superior Court
of
Bernardino County. Kyle
S. Brodie, Judge. Affirmed.
Mark
L. Christiansen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and
Julianne Karr Reizen, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury found defendant and appellant Sean David Almendarez guilty of
that defendant suffered: (1) two prior
strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); and (2)
five prior convictions for which he served prison terms (§ 667.5, subd.
(b)). The trial court sentenced
defendant to prison for a term of 11 years.
Defendant raises two issues on appeal.
First, defendant contends the trial court erred by not instructing the
jury on the law of specific intent. Second,
defendant asserts the trial court erred by excluding evidence relating to the
location of some of the stolen goods. We
affirm the judgment.
name="_ftnref2" title="">[2]
On
February 3, 2012, at
approximately 2:00 p.m., Tina
Hatfield was at home in San Bernardino,
when she saw defendant and another man, Diamond Ozier, riding their bicycles
down the street. The men were riding
their bicycles side by side. There was a
“big and full†duffle bag “on the front†of one of the bicycles. Hatfield called 911 to report the men’s
suspicious activity.
Hatfield
observed defendant and Ozier go to a house on her cul-de-sac. As one of the men stood in front of the
house, the second man went to an area outside the house were the trashcans were
stored. Hatfield saw the man “put a
bunch of stuff in a big, big, green trash can.â€
The men then rode away on their bicycles without the duffle bag.
San
Bernardino Police Sergeant Aranda saw two men matching the description given by
Hatfield riding bicycles in an area near the cul-de-sac. Defendant was one of the men stopped by
Sergeant Aranda. During a field
identification, Hatfield identified defendant as one of the men she saw riding
a bicycle down the cul-de-sac.
Another
officer went to the house where items were placed in a trashcan. The officer found a duffle bag and personal
property in the trashcan. The property
in the trashcan belonged to the victim, who lived approximately four houses
away. Ozier admitted taking the property
from the victim’s garage. The property
from the trashcan was returned to the victim.
The victim did not give defendant permission to take property from his
garage.
During
closing argument, the prosecutor
asserted, “It’s reasonable to conclude that the defendant concealed or aided in
concealing the property that was stolen, [the victim’s] property.†The jury was instructed on the law of aiding
and abetting. (CALCRIM No. 401.)
A. INTENT INSTRUCTION
Defendant
contends the trial court erred by instructing the jury on the law of general
intent because receiving stolen property is a specific intent offense when a
theory of aiding and abetting is raised.
We conclude the trial court erred, but that the error was harmless.
“We
independently assess whether instructions correctly state the law [citation],
keeping in mind that ‘the correctness of jury instructions is to be determined
from the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.
[Citations.] “[T]he fact that the
necessary elements of a jury charge are to be found in two instructions rather
than in one instruction does not, in itself, make the charge prejudicial.†[Citation.]
“The absence of an essential element in one instruction may be supplied
by another or cured in light of the instructions as a whole.†[Citation.]’
[Citation.]†(Hernandez, supra, 181
Cal.App.4th at p. 1499.)
The
elements of receiving stolen property are:
(1) the property at issue was stolen, (2) the defendant knew the
property was stolen, and (3) the defendant possessed the stolen property. (In re
Anthony J. (2004) 117 Cal.App.4th 718, 728.) Receiving stolen property is a general intent
crime. (People v. Wielograf (1980) 101 Cal.App.3d 488, 494.) However, the second element of the crime does
involve knowledge. A general intent
crime can involve a particular knowledge requirement. (People
v. Reyes (1997) 52 Cal.App.4th 975, 983.)
Aiding
and abetting requires proof the defendant “‘act[ed] with knowledge of the
criminal purpose of the perpetrator and
with an intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense.’
[Citation.]†(
1114, 1123 (Mendoza).)
Our
Supreme Court has given the following explanation regarding specific intent in
relation to an aiding and abetting theory of guilt: “The intent requirement for an aider and
abettor fits within the . . . definition of specific intent. To be culpable, an aider and abettor must
intend not only the act of encouraging and facilitating but also the additional
criminal act the perpetrator commits. . . .
[I]f the alleged aider and abettor intended only the act of handing a
bat to another person, and did not intend ‘to do a further act or achieve a
future consequence’ [citation], that person would not intend that any criminal
act at all be committed. Aiding and
abetting liability attaches only with the intent that the direct perpetrator
commit a further, criminal, act in order to achieve the future consequence of
that act.†(Mendoza, supra, 18
Cal.4th at p. 1129.) Thus, our Supreme
Court has concluded that an aiding and abetting theory of guilt involves a
specific intent component, in particular, the specific intent that the direct
perpetrator commit a criminal act.
The
People, relying on People v. Torres
(1990) 224 Cal.App.3d 763, 770, assert aiding and abetting does not involve an
intent requirement, and therefore, the intent requirement for aiding and
abetting is the same as that for the underlying crime. Accordingly, since receiving stolen property
is a general intent offense, aiding and abetting the receipt of stolen property
would only require a general criminal intent.
Given our Supreme Court’s discussion detailed ante, we find the People’s argument to be unpersuasive because it
directly contradicts the conclusion reached in
The
People assert Mendoza is distinguishable because
the issue in that case was whether voluntary intoxication was a defense to
guilt as an aider and abettor. (
The People contend the Mendoza
court did not hold a specific intent instruction is required when relying on a
theory of aiding and abetting. The
People’s argument is not persuasive because we are bound by our Supreme Court’s
conclusion that aiding and abetting requires proof of specific intent. (Auto
Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d
450, 455.) If this court were to conclude
that specific intent were not a required component of aiding and abetting, then
we would be directly contradicting our Supreme Court’s conclusion that “[t]he
intent requirement for an aider and abettor fits within the . . .
definition of specific intent.†(
We
cannot overrule our Supreme Court’s conclusion.
(Auto Equity Sales, Inc. v.
Superior Court of Santa Clara County,
supra, 57 Cal.3d at p. 455.) Since
specific intent is a component of aiding and abetting, an instruction
concerning the law of specific intent should have been given to the jury. (Hernandez,
trial court has a sua sponte duty to instruct the jury on the relevant
law].) Accordingly, we conclude the trial
court erred by not giving the jury a specific intent instruction.
“[O]mission
of instructions on an element of an offense is not reversible per se, but
rather may be found harmless on a Chapman
standard. [Citation.]†(People
v. Reyes (1992) 2 Cal.App.4th at p. 1602.)
Thus, we must consider whether the trial court’s error was harmless
beyond a reasonable doubt. (
18, 24.)
A
specific intent instruction would have informed the jury that defendant must
have aided and abetted the direct perpetrator with the specific intent
described in the aiding and abetting instruction. (CALCRIM No. 251.) The intent instruction sets forth the
required union of act and intent.
(CALCRIM No. 251.)
The
aiding and abetting instruction, which the jury received, informed the jury
that, in order to find defendant guilty, it must conclude “[b]efore or during
the commission of the crime, the defendant intended to aid and abet the
perpetrator in committing the crime.â€
(CALCRIM No. 401.) The
instruction further explained, “Someone aids
and abets a crime if he knows of the perpetrator’s unlawful purpose and he
specifically intends to, and does in fact, aid, facilitate, promote, encourage,
or instigate the perpetrator’s commission of that crime.†(CALCRIM No. 401.)
The
aiding and abetting instruction described the type of specific intent required,
e.g., the specific intent that the direct perpetrator commit a crime. The instruction also explained that the
intent must be formed before or during the crime, thus creating a union of act
and intent, as opposed to being an accessory after the fact. The instruction explained the temporal
element of the intent requirement.
Accordingly, since the aiding and abetting instruction described the type
of specific intent required and the temporal aspect of the intent formation, we
conclude beyond a reasonable doubt that the failure to instruct the jury with a
separate specific intent instruction was harmless beyond a reasonable doubt,
because the jury received the necessary information from the aiding and
abetting instruction.
B. EXCLUSION OF EVIDENCE
1. PROCEDURAL
HISTORY
During
the victim’s testimony, he stated that not all the items taken from his garage
were returned at the same time. The victim
explained that some items were returned in the afternoon, while some tools were
returned at approximately 8:00 p.m.
During
Sergeant Aranda’s cross-examination testimony, the following exchange took
place:
“[Defense
Counsel]: Wasn’t there some tools that
were located at Mr. Ozier’s house that day that were taken to [the victim’s
house] that day?
“[Prosecutor]: Objection.
Your Honor, relevance.
“[Defense
Counsel]: It’s the same line as what I
talked about or brought out originally.
“[Prosecutor]: May we approach?
“The
Court: I think I’m going to sustain that
objection, [Defense Counsel].â€
During
a break, outside the presence of the jury, the prosecutor requested statements
about “further property being recovered from Mr. Ozier’s house†“be stricken
from the record as being [ir]relevant because [defendant] is not being charged
with that property . . . .†The trial
court reminded the prosecutor that it had sustained the objection concerning
property being found at Ozier’s house.
The prosecutor did not recall the objection being sustained, so the
trial court agreed “to strike any question that the tools which were given to
[the victim] were recovered from Mr. Ozier’s house.†The trial court found the information to be
irrelevant.
The
court explained, “I think it raises serious [Evidence Code section] 352
questions in terms of distracting the jury from the issues in this case which
are limited to ‘Did the defendant possess the property that was stolen and
recovered from the trash can?’ The
report seems to agree but did not include tools. Whether those tools were taken, and how they
ended up at Mr. Ozier’s house are [a] fairly narrow set of facts that are being
alleged as showing this defendant’s guilt.â€
Defense
counsel asserted the evidence was relevant because it “substantiate[d] Mr.
Ozier[’s] statements that he was responsib[le] for the burglary at that
location, the burglary had been accomplished earlier that day.†The trial court explained that since the
evidence reflected Ozier confessed to burglarizing the victim’s house there was
little value to the evidence of the victim’s tools being found at Ozier’s
home. The trial court concluded,
“exploring th[e] question of how the tools ended up†at Ozier’s house would
consume an undue amount of time given the slight relevance of the evidence.
2. ANALYSIS
Defendant
contends the trial court erred by excluding the evidence concerning tools being
found at Ozier’s house because “resolution of the timing problem was
significantly relevant and probative.â€
Defendant asserts that by failing to include this evidence there was a
false impression that “the disposal of the property took place immediately
after its theft,†which gave an impression that defendant participated in the
burglary.
A
trial court “in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.†(Evid. Code, § 352.) “‘A trial court’s exercise of discretion in
admitting or rejecting evidence pursuant to Evidence Code section 352 “will not
be disturbed on appeal unless there is a manifest abuse of that discretion resulting
in a miscarriage of justice.â€
[Citation.]’ [Citation].†(People
v. Thomas (2011) 51 Cal.4th 449, 485.)
As
set forth ante, the elements of
receiving stolen property are: (1) the
property at issue was stolen, (2) the defendant knew the property was stolen,
and (3) the defendant possessed the stolen property. (In re
Anthony J., supra, 117
Cal.App.4th at p. 728.) Exactly when the
property was originally stolen is not relevant to the charge. Thus, whether Ozier had time to return to his
house before hiding or disposing of the remaining items was not relevant to the
issue of whether defendant was guilty of receiving stolen property. Since the evidence was irrelevant, we
conclude the trial court acted within its discretion by excluding it.
Defendant
contends that the evidentiary ruling also constitutes a due process violation
because he was not permitted to fully present his defense. “[G]enerally, violations of state evidentiary
rules do not rise to the level of federal constitutional error. [Citation.]â€
(People v. Benavides (2005) 35
Cal.4th 69, 91, fn. omitted.) Since we
have concluded ante, that evidence
about the timing of the original burglary was irrelevant, we conclude
defendant’s due process rights were not violated.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting
P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] The
trial court originally sentenced defendant to prison for an indeterminate term
of 25 years to life. In defendant’s
opening brief he raised a third contention, asserting he should be resentenced
under the Three Strikes Reform Act of 2012.
On January 16, 2013, while this appeal was pending, the trial court
recalled defendant’s sentence. On
February 27, 2013, the trial court resentenced defendant to prison for a term
of 11 years. In defendant’s reply brief,
he concedes that his third contention is now moot and withdraws the argument.
