P. v. Padilla

Filed 9/18/07 P. v. Padilla CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Andres Padilla was granted probation after a jury convicted him of grand theft (Pen. Code,  487, subd. (b)(3))^[1]and grand theft by fraudulent use of an access card or account information ( 484g, subd. (a)). He appeals, contending that the trial court erred in not sua sponte giving a jury unanimity instruction. We affirm.

Facts

Viewing the evidence in a light most favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 578), the record shows that appellant stole more than $12,000 in cash and property from his employer, a truck dealership known as Big T's Freightliners Sterling and Western Star (Big T's). When customers called and requested parts for pick-up, employees issued a COD invoice and put the part in the will-call area. If a customer paid in cash, appellant pocketed the money and kept the COD invoice on file to reflect that the part had not been sold. Appellant also generated false credit memos for parts purportedly returned by customers.

On March 31, 2004, Adrienne Frederiksen, co-owner of Big T's, asked appellant about the missing parts, COD invoices, and credit memos. Appellant claimed the parts were still in the will-call area. Parts Manager Theodore Maloney made an inventory check and determined that all the parts listed on appellant's COD invoices and credit memos were missing.

Appellant turned in three COD invoices and charged $604.08 to a customer's credit card, Santos Truck and Repair. One invoice was dated December 29, 2004, and indicated that parts totaling $471.56 were sold to Mayo Ambriz, a regular customer. The second and third invoices listed the customer as a "walk-in." Appellant said the customer was Ambriz.

When appellant was confronted about the COD invoices and missing parts, he presented a $604.08 credit card slip for the purported purchases by Ambriz. Several days later, Frederiksen learned that the credit card number on the receipt matched Robert Hoaglan's Arrowhead Water corporate credit card, a regular client of parts department manager Theodore Maloney. Frederiksen credited $604.08 back to Hoaglan's credit card and apologized.

On April, 2, 2004, Frederiksen confronted appellant about the invoices and asked if he had given away parts without collecting money. Appellant replied "yes" and asked whether Frederiksen was calling him a thief. Frederiksen said, "I'm giving you an opportunity to make it right. Where are my parts or where is the money?" Frederiksen testified that appellant "got very upset and jumped up and ripped off his company pullover and ran out of the building" and never returned.

Frederiksen found written "estimates" with appellant's initials under appellant's computer monitor. The estimates were used as receipts for unreported cash sales totaling more than $400 for oil and products for which appellant had no reason to write an estimate.

A month after Frederiksen reported the theft to the police, appellant called his ex-supervisor and parts manager, Theodore Maloney. Appellant left a voice message on Maloney's cell phone that he had followed him home from Vons. The voice mail message said "I know where you live. You better be careful" and "I'm going to kill you."

Mayo Ambriz testified that he paid appellant $471.56 in cash for the parts listed on the December 29, 2003 COD invoice. When Frederiksen asked appellant about the outstanding invoice, appellant charged the sale and two other sales to another customer's credit card, Robert Hoaglan of Arrowhead Water. Hoaglan testified that he did not request the parts or authorize appellant to make the $604.08 charge on his credit card. After Hoaglan discovered the fraudulent charge, he cancelled the credit card.

Unanimity Instruction

Appellant argues that the trial court erred in not instructing that the jury must be unanimous in determining what acts constituted grand theft. (People v. Russo (2001) 25 Cal.4th 1124, 1132; CALJIC 17.01; CALCRIM 3500.)^[2] "[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (Russo, supra, 25 Cal.4th at p. 1132.)

It is well settled that a unanimity instruction is not required where the case falls within the continuous course of conduct exception. (People v. Diedrich (1982) 31 Cal.3d 263, 282; People v. Daniel (1983) 145 Cal.App.3d 168, 174.) A continuous course of conduct arises in two contexts: (1) when the acts are so closely connected that they form part of the same transaction and thus one offense, and (2) when the statute contemplates a continuous course of conduct of a series of acts over a period of time. (People v. Whitham (1995) 38 Cal.App.4th 1282, 1295.)

A series of related thefts may be charged and prosecuted as a continuous course of conduct crime, as was done here. (See e.g., People v. Bailey (1961) 55 Cal.2d 514, 518-519 [multiple petty thefts charged as single count of grand theft]; People v. Robertson (1959) 167 Cal.App.2d 571, 576-577 [grand theft where defendant made six purchases on fraudulently obtained credit card].) Count 1 alleged that from October 23, 2002 through April 03, 2004 appellant committed grand theft by unlawfully taking money or property exceeding $400 in value from his employer. ( 487, subd. (b)(3).) Count 2 alleged that appellant fraudulently accessed credit card account information on or about April 2, 2004 and that that the value of the money, goods, and other things of value so obtained exceeded $400 in a consecutive six-month period. ( 484g, subd. (a).)

Appellant asserts that a unanimity instruction was required because there was evidence of other uncharged crimes. The jury received a summary of 100 invoices reflecting the theft of parts or cash attributable to appellant. (People's Exhibit 15.) People's Exhibits 8-14 included invoices, CODs, voids, estimates, memos, and customer credit card slips. Frederiksen stated there were other unaccounted losses including $250 missing from a cash drawer and a $40 discrepancy on an invoice for a tailpipe part. She estimated the theft losses to be $12,889.59.

Here there was no instructional error. "Even when the prosecution proves more unlawful acts than were charged, no unanimity instruction is required where the acts proved constitute a continuous course of conduct. [Citation.]" (People v. Napoles (2002) 104 Cal.App.4th 108, 115.)

"In People v. Ewing (1977) 72 Cal.App.3d 714, 717 [140 Cal.Rptr. 299], the court was presented with the question whether the trial court should have given a sua sponte jury instruction declaring that a finding of guilt would require the jurors to agree that defendant committed the same act or acts. It concluded that where the information alleged a course of conduct in statutory terms which had occurred between two designated dates and the issue before the jury was whether the accused was guilty of the course of conduct, not whether he had committed a particular act on a particular day, such an instruction was inappropriate and its omission not error." (People v. Daniel, supra, 145 Cal.App.3d at pp. 174-175.)

The same principle applies here. The grand theft was charged and prosecuted as a continuous course of conduct crime. "The 'continuous conduct' rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]" (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) Appellant's defense was the same -- lack of proof due to purported inventory and accounting errors in Big T's computer system.^[3] The jury rejected the defense. "There is no conceivable construction of the evidence that would permit the jury to find [appellant] guilty of the crime based upon one act but not the other. No unanimity instruction was required." (People v. Percelle (2005) 126 Cal.App.4th 164, 182.)

Assuming, arguendo that the trial court erred in not giving a unanimity instruction, the alleged error was harmless under any standard of review. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188 [failure to give unanimity instruction tested under Chapman v. California (1967) 386 U.S. 18, 24]; People v. Vargas (2001) 91 Cal.App.4th 506, 562 [People v. Watson (1956) 46 Cal.2d 818 standard applied].) The evidence clearly established grand theft in excess of $400 on each count. "Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.]" (People v. Thompson (1995) 36 Cal.App.4th 843, 853.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Charles R. McGrath

Superior Court, County of Ventura

Alfred Vargas, under appointment by the Court of Appeal, for Defendant and Respondent.

Edmund G. Brown, Jr., Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.

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^[1]Unless otherwise stated, all statutory citations are tot he Penal Code.

^[2] CALCRIM 3500 states in pertinent part: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."

^[3]Appellant defended on the theory that Big T's had a system-wide computer problem which made it impossible to determine what was in inventory and who sold a particular part. Defense counsel argued that "first of all, we have the system-wide problem, no accountability, can't tie these transactions to any particular salesperson once whoever decides to . . . type those initials in there; and, two, no starting point. No form of reference. No basis for saying she [Frederiksen] doesn't have the part." Counsel told the jury that "[t]he basic systemic problems infect all of this evidence. There's nothing solid tying it to Mr. Padilla."