P. v. Ramos

Filed 4/17/07 P. v. Ramos CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Aaron H. Katz, Judge. Affirmed.

A jury convicted Bernardo Ramos of receiving stolen property (Pen. Code,^[1] 496, subd. (a)) and unlawfully acquiring access card account information ( 484e, subd. (d)). The court suspended imposition of the sentence and placed Ramos on probation for three years including a condition he serve 365 days in custody. Ramos contends the trial court erred in instructing the jury on the elements of receiving stolen property and he was denied effective assistance of counsel because his attorney failed to object to the prosecutor's comments during closing argument. We conclude there was no prejudicial error, and affirm.

Factual and Procedural Background

In the early morning, Kennon McGeehee was shopping in a market in Encinitas. While driving home he noticed his wallet was missing. He returned to the market but was unable to locate his wallet. Later that evening, in Carlsbad, two bank employees saw Ramos in the bushes near the bank's outside ATM machine. Ramos's actions caused one of the bank employees to believe he had been drinking. The bank employee asked if she could help Ramos and he motioned for her to leave. The bank employees called police.

Officer Zavala responded. He saw Ramos push buttons on the ATM machine. A bank card then came out of the ATM machine, and "Access Denied" appeared on the screen. Ramos then placed the bank card in his pocket. Ramos continued to push the ATM buttons for about 15 seconds. Officer Zavala then asked Ramos what he was doing and Ramos responded he was trying to get money. After Ramos agreed to a search, the officer found McGeehee's wallet in Ramos's pocket containing McGeehee's driver's license and credit cards. He also found the bank card Ramos used at the ATM; the card had a picture of a white male on it. The photograph was not of Ramos. Ramos gave the officer a false name. Ramos had an odor of alcohol but did not appear to be under the influence of alcohol.

Ramos presented no evidence.

Based on this evidence, Ramos was charged with receiving stolen property ( 496, subd. (a)) and unlawfully acquiring access card account information ( 484e, subd. (d)). During the jury instruction conference, the prosecutor asked the court to instruct on the receiving stolen property count based on the CALCRIM No. 1750 model instruction applicable to this crime. The prosecutor also asked the court to instruct the jury in the language of section 485, which is the crime of theft by misappropriation of lost property.^[2] The prosecutor explained that because one of the elements of the receiving stolen property crime is that the property was "stolen" or "obtained" by theft, the court needed to instruct the jury on the prosecution's theory supporting this elementthat the wallet was stolen by Ramos when he wrongfully misappropriated the lost property.

Defense counsel agreed that the court should give the CALCRIM No. 1750 instruction, but objected to the section 485 instruction. Defense counsel stated that this instruction would mislead the jury into believing it could convict Ramos on the receiving stolen property count based solely on facts showing he wrongfully misappropriated the wallet. Defense counsel argued that the court should instead instruct the jury on larceny, which is a separate form of theft. The prosecutor objected to the larceny instruction, stating that the larceny instruction would confuse the jury and was unnecessary because the prosecution theory underlying the stolen property offense was a section 485 misappropriation and not larceny.

The trial court agreed with the prosecutor's position, and instructed the jury using CALCRIM No. 1750, that to convict Ramos of receiving stolen property the People had to prove: "[One], the defendant received, concealed and withheld from its owner property that had been stolen; and, two, . . . when the defendant received, concealed or withheld the property, he knew that the property had been stolen. [] Property is stolen if it was obtained by any type of theft or burglary or robbery. Theft includes, but is not limited to, obtaining property by larceny, embezzlement, false pretense or trick. [] To receive property means to take possession and control of it. Mere presence or access to the property is not enough."

Immediately following that instruction, the court instructed the jury from the language of section 485: "One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him has committed theft."

The court also instructed the jury that a defendant's possession of recently stolen property is not sufficient for a conviction, and that the jury must find additional supporting evidence to support an inference of guilt. (See CALCRIM No. 376.) Over the prosecutor's objections, the court additionally instructed the jury that it could consider evidence of Ramos's voluntary intoxication in deciding whether Ramos possessed the property with knowledge that the property was stolen.

Discussion

I. Claimed Instructional Error

Ramos contends the trial court erred in failing to sua sponte instruct the jury that to find him guilty of the receiving stolen property offense, it must find he had the specific intent to permanently deprive the owner of the property.

To sustain a conviction for receiving stolen property, the prosecution must prove "(1) the property was stolen; (2) the defendant knew the property was stolen; and, (3) the defendant had possession of the stolen property." (People v. Land (1994) 30 Cal.App.4th 220, 223.) With respect to the first element, the prosecutor must show the property was stolen or "has been obtained in any manner constituting theft or extortion." ( 496, subd. (a); see People v. Kunkin (1973) 9 Cal.3d 245, 250-252.) The prosecution's theory on this element was that Ramos committed a theft of the wallet (including the bank card) by wrongfully misappropriating lost property under section 485. (See footnote 2, ante.)

Ramos does not dispute that a section 485 misappropriation crime may properly serve as the factual predicate to a receiving stolen property conviction. Ramos also concedes that the prosecution could properly charge this offense against the individual who personally committed the misappropriation.^[3] He argues, however, that the court erred because it instructed the jury as to the misappropriation offense using the section

485 statutory language without also telling the jury that "[a]t the time the defendant appropriated the property, he had the intent to deprive the owner permanently of the property." (Underscoring omitted.)

To prove a theft in California, the prosecution is required to prove the defendant had the specific intent to permanently deprive the owner of possession of the property. (People v. Avery (2002) 27 Cal.4th 49, 54; People v. MacArthur (2006) 142 Cal.App.4th 275, 280; People v. Jaso (1970) 4 Cal.App.3d 767, 771.) This rule is satisfied by the intent to take the property only temporarily, "but for so extended a period as to deprive the owner of a major portion of its value or enjoyment. . . . " (People v. Avery, supra, at p. 54.) " '[O]ne must intend to deprive the owner of the possession of his property either permanently or for an unreasonable length of time, or intend to use it in such a way that the owner will probably be thus deprived of his property.' [Citation.] 'An intent to return the property taken, in order to qualify as a defense to larceny, must be an intent to return within a reasonable time.' " (Id. at p. 56.)

Although no reported decision has applied this specific intent requirement to the section 485 offense, we agree with Ramos that it logically extends to this crime because a section 485 misappropriation is a form of theft. Section 485 states that a person who

violates the code section "is guilty of theft." ( 485, italics added.) More than 100 years ago, the California Supreme Court recognized that the section 485 misappropriation crime is a type of larceny: "[I]t was not the legislative intent to create, by the enactment of these provisions of law [sections 484 and 485], any two distinct kinds of larceny, such as the defendant insists upon. The first section defines larceny generally; the second section declares a rule of evidence which, being fulfilled, constitutes the crime as defined in the first section." (People v. Buelna (1889) 81 Cal. 135, 137.) Later courts have likewise identified the section 485 misappropriation crime as a theft offense. (See People v. Lagunas (1994) 8 Cal.4th 1030, 1034; People v. Franco (1970) 4 Cal.App.3d 535, 538, fn. 2.)

Because all theft crimes require a showing of an intent to permanently deprive the owner of the property, the section 485 misappropriation crime requires proof of this element as well. Thus, when a defendant is charged with the section 485 crime, a court should inform the jury of the intent to permanently deprive requirement.

However, in this case, the defendant was charged with receiving stolen property, and was properly instructed on the elements of that crime, including the prosecutor's obligation to prove the property Ramos possessed was stolen. The theft by misappropriation instruction (which defense counsel objected to in its entirety) was an appropriate pinpoint instruction to inform the jury of the legal basis for the prosecutor's theory as to why the wallet and its contents qualified as stolen property. However, the court did not have the additional duty to instruct sua sponte on the intent to permanently deprive element of the misappropriation crime because it was not an issue under the particular facts of this case. Absent a request, a court has the duty to instruct only on those "general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case." (People v. Montoya (1994) 7 Cal. 4th 1027, 1047; People v. St. Martin (1970) 1 Cal.3d 524, 531.) The question whether Ramos had the specific intent to permanently deprive the wallet owner of the property was not related to the facts before the court or necessary for the jury's understanding of the case because there was no evidence or argument that Ramos appropriated the wallet only temporarily and intended to return it to the owner. Contrary to Ramos's contentions on appeal, Ramos's conduct at the ATM machine does not show that he did not intend to permanently deprive the wallet owner of the property.

In this respect, this case is distinguishable from People v. MacArthur, supra, 142 Cal.App.4th 275, relied upon by Ramos in his reply brief. In MacArthur, the defendant was charged with receiving stolen property based on his pawning jewelry that his girlfriend took from her mother. (Id. at pp. 277-278.) At trial, the defendant and his girlfriend testified that the girlfriend had previously taken property from her mother to pawn it and she had always redeemed the items and returned them to her mother. (Id. at pp. 278-279.) The defendant testified he thought his girlfriend was doing the same thing when she again gave him the jewelry to pawn. (Id. at p. 278.) At the conclusion of the evidence, the trial court gave the receiving stolen property instruction, without instructing on a definition of theft to include the intent to permanently deprive the owner of the property. (Id. at p. 280.) The MacArthur court held this instruction was incomplete because the jury was not told that theft required an intent to permanently deprive the girlfriend's mother of possession of the jewelry items. (Id. at pp. 280-281.) The court found this instruction should have been given because "[t]he evidence at trial called into question whether any relevant participant had the requisite intent." (Id. at p. 280.) In so concluding, the court rejected the Attorney General's argument that the mere fact of pawning the items satisfied the specific intent requirement, explaining that: "Pawning is not selling. One who pawns property does not transfer ownership to a third party. . . .  Title does not pass to the pawnbroker unless the pledgor fails to redeem the pledge by repaying the loan and any applicable charges within the specified loan period." (Id. at p. 281.)

Unlike in MacArthur, there was no evidence in this case that "called into question whether [Ramos] had the requisite intent" to permanently deprive the wallet owner of his property. (People v. MacArthur, supra, 142 Cal.App.4th at p. 280.) Ramos did not merely temporarily transfer ownership to a third party; he attempted to use the bank card to obtain money from the owner's bank account. Moreover, unlike in MacArthur, there was no evidence that Ramos had previously engaged in similar conduct and then returned the misappropriated item. The undisputed evidence showed that if the jury believed that Ramos appropriated the property to his own use without first making reasonable and just efforts to find the owner and restore the property to him, then Ramos necessarily engaged in these actions without the intent to return the items to the owner.

Further, even assuming the court should have instructed on this specific intent element, there was no prejudice. As stated, there was no evidence that Ramos intended to keep the wallet only for a reasonable period of time and then return it to the owner. Moreover, the court permitted defense counsel to argue that Ramos's intoxication precluded him from understanding that the property was stolen, and specifically instructed the jury that the prosecution had the burden to prove that Ramos acted with knowledge that the property was stolen. By rejecting this defense, the jury necessarily found that Ramos knew the wallet was stolen and knew what he was doing when he attempted to use the bank card to retrieve money from the ATM machine. On this record, we are convinced beyond a reasonable doubt that the jury would have reached the same conclusion on the stolen property offense even if it had been instructed that Ramos must have the specific intent to permanently deprive the owner of the property.^[4] (See Chapman v. California (1967) 386 U.S. 18, 24.)

II. Ineffective Assistance Contention

Ramos contends he was denied effective assistance of counsel because his trial attorney failed to object to portions of the prosecutor's closing argument when she discussed the receiving stolen property offense.

Defendants have a constitutional right to effective counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335.) The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.)

During closing argument, the prosecutor told the jury that Ramos misappropriated the property when he put it in his pocket and moved two feet, and that property is misappropriated if a person picks up another person's driver's license and then puts it in his shoe. Ramos maintains these arguments were misleading because the prosecutor omitted the requirement that he specifically intended to permanently deprive the owner of the property.

Although the prosecutor's statements quoted in Ramos's opening brief are not a complete explanation of the law on misappropriation of lost property, viewed in context, these statements were not misleading. The prosecutor's discussion of conduct that constitutes misappropriation was accurate, and was designed to explain to the jury the prosecution's theory that the jury could find misappropriation based on Ramos's finding the wallet, putting it in his pocket, and then using the bank card in an attempt to obtain money from the ATM machine. The prosecutor also explained that misappropriation was only one element of the receiving stolen property offense. Contrary to Ramos's assertions, the prosecutor did not say that Ramos could be convicted for receiving stolen property merely because he put the wallet in his pocket. Moreover, the prosecutor did not state or suggest that Ramos could be found guilty even if he did not intend to permanently deprive the owner of possession of the property. Although the prosecutor did not affirmatively discuss this specific intent element, a discussion of this issue was not necessary because there was no evidence supporting a claim that Ramos intended to return the property or intended to only temporarily misappropriate the item.

Because the prosecutor's challenged statements were not misleading, defense counsel did not act improperly by failing to object to the statements.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

NARES, Acting P.J.

O'ROURKE, J.

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^[1] All statutory references are to the California Penal Code.

^[2] Section 485 states: "One who finds lost property under circumstances which gives him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and restore the property to him is guilty of theft."

^[3] We requested supplemental briefing on this issue, which clarified the parties' positions on the issue.

^[4] In his supplemental brief, Ramos contended the jury may have found him guilty of receiving only the bank card as stolen property, thus making dual convictions for receiving the bank card under section 496 and fraudulently using the bank card under section 484e, subdivision (d) improper. This argument is untimely. Moreover, it is unpersuasive because there was uncontradicted evidence that Ramos had McGeehan's entire wallet in his possession, the contents which included credit cards, photographs and insurance cards.