P. v. Bruner

Filed 8/28/06 P. v. Bruner CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Ronnie Bruner appeals from the judgment entered after a jury convicted him of grand theft (Pen. Code, § 487, subd. (b)(3))^[1] and possession of a smoking device (Health & Saf. Code, § 11364). Appellant admitted a prior strike conviction (§§ 667, subd. (e)(1); 1170.12, subds. (b) & (c)(1)) and was sentenced to four years state prison. He contends, among other things, that the trial court erred in not instructing on the difference between grand and petty theft. (§§ 486; 487, subd. (a).) We affirm.

Facts and Procedural History

In 2004, Robert Bartlett hired appellant to work as a Rapid Rooter plumbing service technician. Appellant was furnished a van equipped with a jackhammer and a video camera to inspect sewer lines.

On March 11, 2004, appellant took the van home and failed to show up at a job and a mandatory safety meeting. On March 15, 2004, Bartlett found the van parked at a motel and inventoried the van. The video camera and jackhammer were missing.

Appellant called Bartlett several days later, apologized about the missing equipment, and said he would make amends. After Bartlett reported the theft, appellant sent him a letter stating that he sold the video camera to a drug dealer for $300.

On April 5, 2004, Ventura Police Officer Scott Aaron detained appellant and asked about the video camera and jackhammer. Appellant said the tools were somewhere in Ventura, refused to provide a location, and said, "Take me to jail." He had a crack pipe in his right front pocket.

At trial, appellant stated that he traded the video camera for $300 worth of crack cocaine. Appellant tried to get the video camera back but the drug dealer wanted $1,000. After appellant pawned the jackhammer, a church pastor gave him $400 to get it back. Appellant spent the money on more drugs.

Jury Instructions

Appellant argues that the trial court erred in not instructing on the difference between grand and petty theft. The jury received a CALJIC 14.07 theft by embezzlement instruction. The Use Note to CALJIC 14.07 states: "When this instruction is given, appropriate instructions (CALJIC 14.21-14.24) as to [the] distinction between grand and petty theft, and the duty of the jury to fix the degree must be given sua sponte (CALJIC 14.20)." (Use Note to CALJIC 14.20 (Apr. 2006 ed.) p. 906.)

These instructions were requested by the prosecution but withdrawn after counsel met in chambers. The trial court stated that counsel had "informally settled on the jury instructions. . . ." Appellant did not object to the instructions given or request supplemental instructions. One can reasonably infer that appellant, as a matter of trial tactics, did not want the jury instructed on the distinction between grand theft and petty theft. (See e.g., People v. Sedeno (1974) 10 Cal.3d 703, 716 & fn. 6.)

Assuming, arguendo, that the trial court erred in not sua sponte instructing on petty theft as a lesser offense, the alleged error was harmless. (People v. Breverman (1998) 19 Cal.4th 142, 178.) The prosecutor, in opening and closing argument, stated that the value of the equipment was more than $5,000 and that "it is grand theft because the equipment had a value well in excess of $400."

Counsel for appellant argued that "[t]here isn't too much for you to decide." "[I]t's going to come down to . . . Mr. Bruner's intent, what was his intent when those items were turned over to the other parties, the drug seller and the pawn broker, and whether or not Mr. Bruner intended to deprive Rapid Rooter or Mr. Bartlett's use [and] possession of those items."

It is uncontroverted that appellant took the property and exchanged it for drugs and money. Substantial evidence supported the finding that appellant intended to deprive Bartlett of the property temporarily but for an unreasonable time so as to deprive Bartlett of a major portion of the property's value and enjoyment. (CALJI 14.03; People v. Avery (2002) 27 Cal.4th 49, 58.)

Fair Market Value

Appellant argues that the trial court erred in not instructing that, in order to convict for grand theft, the fair market value of the property taken had to be $400 or more.^[2] The failure to instruct on an element of an offense is reviewed under the Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.3d 705] harmless error standard. (People v. Flood (1998) 18 Cal.4th 470, 502-503.) "[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. [Citations.]" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [89 L.Ed.2d 674, 684].)

Bartlett opined that the video camera and jackhammer were worth $5,000 and $672 respectively. Bartlett had 25 years experience in the plumbing business, was familiar with the equipment, and stated that video camera and jackhammer were in good working order. (See e.g., People v. Coleman (1963) 222 Cal.App.2d 358, 361 [owner may opine as to cost, condition, and value of stolen tools].) Bartlett's testimony was corroborated by a $723.54 receipt which showed that the video camera was repaired a month before the theft. A second receipt showed that Bartlett purchased the jackhammer for $632.39 six weeks before the theft.

Appellant, in his reply brief, claims that the fair market value of the property was "vigorously contested" and points out that he only got $350 for the property. Fair market value is not what a drug dealer or pawn shop pays an addict for stolen property. Even the drug dealer knew the video camera was worth more than $400. When appellant attempted to buy it back, the drug dealer demanded $1,000.

Appellant testified that he hocked the jackhammer for $50 and that it was worth a whole lot more. It was a spur of the moment deal to top off a weekend of drug binging.^[3]

In a larceny or embezzlement case, market value is based on the price the property would bring in the open market. (People v. Simpson (1938) 26 Cal.App.2d 223, 229.) It is " 'the highest price' " obtainable in the open market. (People v. Pena (1977) 68 Cal.App.3d 100, 103; 2 Witkin & Epstein, Cal. Criminal Law (3rd ed. 2000) Crimes Against Property, Determining Value, § 8, p. 27.) Based on appellant's theory of the law, he could steal a $5,000 video camera, sell it for $10 worth of crack cocaine, and not be convicted of grand theft. The evidence, however, clearly shows that the cumulative value of the stolen property exceeded $400. (See People v. Packard (1982) 131 Cal.App.3d 622, 626 [prosecution may prove grand theft based on a series of petty thefts over a 12 month time period].)

CALJIC 14.26

Appellant further claims the trial court erred in not giving CALJIC 14.26 on how property value is determined.^[4] The prosecutor requested the instruction, but withdrew it after an in-chambers conference. Appellant, as a matter of trial tactics, agreed that the instruction should not be given. .

CALJIC 14.26 describes "fair market value" as the highest price, in cash, for which the property would have sold in the open market if the owner was under no urgent necessity to sell the property, and the seller had a reasonable time within which to find a purchaser. Fair market value is not what appellant boosted the property for following an all-nighter drug binge.

The jury was instructed that it could consider the owner's opinion of value. (CALJIC 14.27.) A CALJIC 14.26 instruction would have been cumulative, redundant, and confusing. (See e.g., People v. Wright (1988) 45 Cal.3d 1126, 1153-1154 [proposed cautionary instruction was redundant and confusing]; People v. Freeman (1978) 22 Cal.3d 434, 438.) It would have also undermined appellant's testimony.

There was no instructional error. A trial court has a general duty to instruct on principles of law relevant to the issues raised by the evidence (People v. Saddler (1979) 24 Cal.3d 671, 681), and a correlative duty to refrain from instructing on irrelevant and confusing principles of law. (People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10.)

Section 1157

Appellant argues that the grand theft conviction should be reduced to petty theft by operation of law because the jury did not determine the degree of the offense. The argument is based on the theory that the crime of theft is divided into degrees: grand theft and petty theft. (§ 486.) Section 1157 provides that the jury "must find the degree of the crime" and "[u]pon the failure of the jury . . . to so determine, the degree of the crime . . . of which the defendant is guilty, shall be deemed to be the lesser degree."

Section 1157 "has no application to crimes that are not divided into degrees. . . . [G]rand theft can be committed in a number of different ways [citation], but there are no degrees of grand theft. Hence, a simple verdict of guilty as charged is sufficient. [Citation.]" (6 Witkin & Epstein, Cal. Criminal Law, (3rd ed. 2000) Criminal Judgment, Degree § 56, p. 91.)

The jury verdict stated: "We, the jury in the above-entitled action, find the defendant, RONNIE BRUNER GUILTY of the crime of GRAND THEFT, in violation of Penal Code section 487(b)(3), as alleged in the Information." The information alleged grand theft based on the unlawful taking from Rapid Rooter "money and personal property of a value exceeding Four Hundred Dollars ($400)."

The purpose of section 1157 is to resolve ambiguities in the form of the verdict and to protect the defendant from having the degree of the crime increased after judgment. (People v. Lamb (1986) 176 Cal.App.3d 932, 935.) There is nothing ambiguous about a "Grand Theft" verdict. The verdict form reference to the information required that the jury find that the property taken had a value exceeding $400 as alleged. (See, e.g., People v. Goodwin (1988) 202 Cal.App.3d 940, 947 [jury verdict finding that defendant was guilty of "residential burglary" satisfied requirement that it be "first degree burglary"]; People v. Preciado (1991) 233 Cal.App.3d 1244, 1247-1248 [verdict forms described a first degree burglary and referred to information which specifically charged defendant with first degree burglary].)

Appellant's assertion that he was denied the right to jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) is without merit. Apprendi holds that any fact (other than a prior conviction) that increases the punishment for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. (Id., at p. 490.) Apprendi deals with penalty enhancements, not the elements of the offense of which the defendant is convicted.

"Apprendi eschews the distinction between sentencing factors and elements of a crime: 'the relevant inquiry is not of form, but of effect – does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" [Citation.] . . . The days of semantical hair splitting between 'elements of the offense' and 'sentencing factors,' [citation], are over." (U.S. v. Buckland (9th Cir. 2002) 277 F.3d 1173, 1181.)

The evidence is overwhelming and clearly supports the conviction for grand theft. We conclude that the alleged instructional errors are technical and under any standard of review, harmless. (People v. Williams (2001) 26 Cal.4th 779, 790; Neder v. United States (1999) 527 U.S. 1, 7-10 [144 L.Ed.2d 35].) "Failure to submit a sentencing factor to a jury, like failure to submit an element to the jury, is not structural error." (Washington v. Recuenco (June 26, 2006) ___ U.S. __, ___ [2006 DJDAR 8078, 8081].)

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Roland Purnell, Judge

Superior Court County of Ventura

______________________________

Susan B. Gans-Smith, under appointment by the Court of Appeal

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] Unless otherwise stated, all statutory references are to the Penal Code.

^[2] Appellant was convicted of section 487, subdivision (b)(3) which provides that grand theft is committed "[w]here the money, labor or real or personal property is taken by a servant, agent, or employee from his or her principal or employer and aggregates four hundred dollars ($400) or more in any 12 consecutive month period."

^[3] Appellant testified that he spent the weekend at a motel binging on drugs. Driving home, "I seen the pawn shop, and I just got a bright idea I could get some more money without having to go home, fight with the wife and go through all of that." Appellant "was really craving some more drugs, and I pulled into the pawn shop." Appellant did not " try to get the maximum amount" for the jackhammer and stated that "I could have gotten more for it. I just needed a little bit . . . just to satisfy that craving at that moment[.] I just took $50 loan on that chipping hammer."

^[4] CALJIC 14.26 states: "When the value of the property alleged to have been taken by theft must be determined, the reasonable and fair market value at the time and in the locality of the theft shall be the test. Fair market value is the highest price, in cash, for which the property would have sold in the open market at that time and in that locality, (1) if the owner was desirous of selling, but under no urgent necessity to do so; (2) if the buyer was desirous of buying but under no urgent necessity to do so; (3) if the seller had a reasonable time within which to find a purchaser; and (4) if the buyer had knowledge of the character of the property and of the uses to which it might be put."