P. v. Sheridan

Filed 9/13/07 P. v. Sheridan CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(El Dorado)

Defendant appeals from the judgment of conviction after a jury found him guilty of conspiracy to commit theft and willfully injure or destroy any object or thing of archaeological or historical interest or value (Pen. Code, 182, subd. (a)(1), 484, subd. (a), 622 1/2; count 1)^[1]and resisting an officer. ( 148, subd. (a)(1); count 3.)^[2] He was sentenced to a prison term of 16 months for conspiracy and a concurrent jail term of 60 days for resisting arrest.^[3]

On appeal he challenges the sufficiency of the evidence and claims prejudicial instructional error, evidentiary error, evasion of the statute of limitations, and cumulative error.

We find no prejudicial or cumulative error and shall affirm the judgment.

FACTUAL BACKGROUND

A. Prosecutions Case-in-Chief

On March 20, 2003, United States Forest Service (USFS) Officer Heather Campbell and El Dorado County Deputy Sheriff Terri Cissna went to Stephen Ragans residence where Deputy Cissna conducted a search of Ragans bedroom and found various artifacts including arrowheads in a dresser drawer. Ragan told Cissna he had been collecting these items for years and that they came from sites at Tin Ranch, Bear Creek, Bald Mountain, and Pilot Hill. He indicated that he engaged in his collecting activities with a couple of people, including defendant, and had gone with him multiple times to the first three of those sites. Ragan admitted that he and defendant went to those sites to look for crystals and arrowheads and found them by digging.

The next day, federal agents Glenn Power, a criminal investigator with the USFS, and agent Donna Deeton drove to Tin Ranch, an undeveloped area in Georgetown, to investigate a fire which occurred March 6, 2003. The area was owned in part by private individuals and in part by the USFS.^[4] The fire was on a privately owned parcel in Tin Ranch.

When they arrived, they saw several holes where the soil had been freshly disturbed, some small cone-shaped sifting piles, and black trays for carrying plants. A pickup truck with four buckets of dirt in the truck bed was parked on the side of the road about 20 feet away from the burned area. The holes were not there on March 7th. Moments later, defendant and Jannell Garrett walked out of the woods. Defendant placed a shovel in the truck while Garrett raked the surface of the dirt road with a little rake, picked up an object from the dirt, looked at it, and put the rake in the truck.

The agents identified themselves as police, checked the twosome for weapons, and advised them they were investigating the fire and the holes at that site. Agent Power conducted a pat-down of defendant and removed several small rocks of crystals from defendants pants pocket. Defendant advised the agents that the rocks came from the area.

Defendant told Power he discovered the Tin Ranch site earlier in the summer of 2002 while woodcutting with his girlfriend, Rowena Sundin, and that they started digging at the site in October. He explained that he excavated the dirt, put it in buckets, and transported it to his home where he sifted the dirt looking for arrowheads. He admitted that he had been out there a number of times with Ragan, Sundin, and Garrett digging and looking for crystals and arrowheads and knew he was digging on private land without the owners permission. He even guided the two agents around the area to show them where he had been digging on previous occasions. However, he denied digging a couple of freshly dug holes. When asked about the fire, defendant denied having any knowledge about it but offered his theory that someone deliberately set fire to the area to burn off the leaves and other ground material to make it easier to dig for arrowheads.

After speaking to defendant and Garrett, Agent Power requested additional assistance and Officer Campbell and Deputy Cissna arrived. Cissna searched the interior of defendants truck and found a small pick used to chisel smaller rock, a small cloth pouch in Garretts purse containing four decent quality rocks or stones, arrowheads, and an arrowhead gold necklace. She also found an USFS lock on the floor board beneath the passenger seat. In the truck bed was a duffel bag containing large rock and crystal-like pieces, four five-gallon buckets containing dirt, another bucket, along with the shovel and rake defendant and Garrett had been using earlier.

The group then proceeded to Sundins house where defendant resided. When they arrived, Officer Power initially observed a small pile of rocks, a five-gallon plastic bucket filled with dirt, and a black plant tray used for screening. On the porch were several plastic bags containing small stones and bowls containing crystals, and four arrowheads and a grinding stone were located in the house.

Defendant brought out five rock-filled bowls and showed them to the officers. He explained that he had taken the rocks and one broken arrowhead from the Tin Ranch site during the four trips he made from October 2002 through March 2003. Defendant also admitted he had been to Bear Creek with Ragan to dig and had recovered different stones and artifacts. He explained that the rocks in some of the other bowls came from sites at Bear Creek and Bald Mountain. Defendant told the officers that when Ragan introduced him to the Tin Ranch site, he spoke of it as an Indian site and informed him if he ever got caught digging, he should say he was looking for crystals.

Agent Power advised Sundin about his investigation and asked her about the fire and the holes on the Tin Ranch property. She told him she had been to that site twice with defendant to dig for Indian arrowheads, which was something he liked to do. She explained that when they went there, she looked for crystals and neat rocks while defendant filled up five gallon buckets with dirt that he would later sift to look for arrowheads. Sundin pointed to a pile of dirt on the property that had come from the fire site and said defendant used the plastic plant tray to sift the dirt.

According to Sundin, in 2003, she and defendant went woodcutting in various areas of the national forest and on private property and took soil from these different locations for her garden. She used to go hiking in the area and explored Bear Creek and other areas with various people including defendant, Garrett, and Ragan and his girlfriend. Although she would take rocks and other items of interest, she did not use any tools except when she and defendant were logging and had permission to do so. Sundin admitted that she and defendant went to the Bear Creek area about three times and that he helped her take some rocks to build a border around her garden.

The following day, Agent Power drove to a site near Bear Creek that defendant had described. It was located on an undeveloped parcel owned by Carl Hempfling and located immediately adjacent to USFS land. That parcel and three other parcels owned by Hempfling were enclosed by a barbwire perimeter fence. Power saw some fairly large holes on one side of the road where someone had been digging and several smaller holes on the other side of the road where dirt had been extracted and carried away. The holes were all on Hempflings parcel and aside from a sheriffs deputy who lived on the property, Hempfling had not given anyone permission to come onto his property or remove anything from his property.^[5]

On November 13, 2004, uniformed officers Campbell and Cissna arrested defendant at his residence in Georgetown. When they arrived, he was inside his trailer putting on his shirt and the officers asked him to come out so they could speak to him about the illegal digging at the Bear Creek site. Defendant complied but refused to secure his pit bull, which was barking and lunging at the officers.

Officer Campbell advised defendant she had a warrant for his arrest and asked him to turn around. He refused, became defiant, and asked to see a copy of the warrant before he would allow them to touch him. When Deputy Cissna attempted to place him in handcuffs, he physically resisted and during the five-minute struggle to place him in handcuffs, the dog bit officer Campbells leg.

B. Defense

Defendant testified on his own behalf and denied the officers testimony. He explained that he moved to El Dorado County when he was young and has been exploring the back woods in the Georgetown area ever since, occasionally picking up rocks and arrowheads.

On March 21, 2003, he went to the Tin Ranch site with a chain saw to get firewood. His permit to run the chain saw required that he have a fire extinguisher, water bucket, and shovel, all of which he had with him that day. When Agent Power contacted him, he told Power he was collecting firewood and had stopped to drink a beer. Power told him he just wanted to ask a few questions and that he was not in trouble and had not broken any laws for being there.

Defendant explained that he filled up the buckets with dirt from the area for his girlfriends garden but denied taking any dirt from the holes or digging any of them. Oddly however, he also testified that after speaking to the officers on March 21st, he poured the dirt back into the exact same hole I got it out of. He also denied finding or owning any arrowheads, denied owning the sifting crate or using it to sift dirt at Tin Ranch,^[6]denied building the pile of dirt at Sundins house, denied collecting, owning, or giving the officers any rocks in the bowls, and could not recall the officers obtaining anything from his pockets. Defendant also denied knowing that collecting arrowheads was illegal until he spoke to Agent Power on March 21st. In December 2002, he accidentally cut off a portion of his finger while he was splitting firewood with Ragan. He blamed Ragan for the accident and has not spoken to him since.

C. Rebuttal

Officer Campbell testified that no firewood permits are issued from January through March and she did not see a chain saw in Garretts truck on March 21st.

DISCUSSION

I.

There Was No Sua Sponte duty to

Give a Mistake of Law Instruction

Defendant contends the trial court erred by failing to instruct the jury sua sponte on a mistake of law defense to the charge of conspiracy. He argues that this instruction was required because there was evidence he did not know collecting arrowheads was illegal. He further argues that counsels failure to request such an instruction constitutes incompetence of counsel. Respondent counters that there was no sua sponte duty to give such an instruction because it would have been inconsistent with the defense.

We find that any error in failing to give the instruction was harmless. Having failed to show prejudice, we also reject defendants claim of incompetence of counsel.

A trial courts duty to instruct, sua sponte, on particular defenses arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424, quoting People v. Barton (1995) 12 Cal.4th 186, 195.)

While ignorance of the law is no defense to the commission of a general intent crime, an honest or good faith mistaken belief in ones legal right to commit an act may be a defense to a specific intent crime when it serves to negate that intent. (People v. Vineberg (1981) 125 Cal.App.3d 127, 137; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, 37, pp. 368-369.)

Conspiracy is defined as an unlawful agreement between two or more people to commit a crime and an overt act in furtherance of the agreement. ( 182, subd. (a)(1); People v. Urziceanu (2005) 132 Cal.App.4th 747, 776.) A charge of conspiracy requires proof the defendant and another person had the specific intent to agree to commit an offense and the specific intent to commit the elements of that offense. (People v. Morante (1999) 20 Cal.4th 403, 416.) Because conspiracy is a specific intent crime, the court in Urziceanu, supra, 132 Cal.App.4th at page 779, held that the defendant could raise a good faith mistake of law as a defense to the charge of conspiracy because the mistake negates the specific intent to commit an unlawful act. (See People v. Marsh (1962) 58 Cal.2d 732, 742-743.)

Assuming without deciding whether defendants claim of ignorance of the law was sufficient to trigger a sua sponte duty to give an instruction on that defense, we conclude the trial courts failure to give it was harmless because the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Wright (2006) 40 Cal.4th 81, 98.)

The trial court instructed the jury on the definition and elements of conspiracy and petty theft.^[7] Under those instructions, the jury was told that to be guilty of conspiracy, the prosecution had to prove defendant intended to agree and did agree with his coconspirators to commit petty theft, and that at the time of the agreement defendant and one or more of his coconspirators intended that one or more of them would commit petty theft; and to prove petty theft, the prosecution had to prove defendant or one of his coconspirators took possession of property owned by another without the owners consent.^[8]

Defendant testified that he did not think collecting arrowheads was illegal and argued that he was not guilty of conspiracy because he lacked the specific intent to commit the crime of petty theft. Thus, under the properly given instructions and defendants testimony, the jury had the option of acquitting him of conspiracy had it believed his testimony that he did not think taking the arrowheads was unlawful. By convicting him, the jury necessarily rejected his testimony in light of his admission that when he was introduced to the Tin Ranch site, he was told by Ragan that it was an Indian site and that if he was ever caught digging, he should lie about his purpose in digging. His testimony that he was ignorant of the law was further weakened by the many inconsistencies in his testimony.

Accordingly, because the jury necessarily resolved the same factual question that would have been presented by the missing instruction (People v. Wright, supra, 40 Cal.4th at p. 99), it is not reasonably probable a different verdict would have resulted had the court given the instruction. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Likewise, defendants failure to establish prejudice resulting from instructional error also defeats his claim of incompetence of counsel. (In re Neely (1993) 6 Cal.4th 901, 908; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] [defendant must establish counsels representation fell below an objective standard of professional reasonableness and the deficient representation resulted in prejudice under the reasonable probability standard.)^[9]

II.

There is Sufficient Evidence

to Support the Conviction for Conspiracy

Defendant contends his conviction for conspiracy must be reversed because the evidence is insufficient to support the target offense of petty theft and that section 622 1/2 is unconstitutionally vague. We address each ground separately.

A. Petty Theft

Defendant argues the evidence is insufficient to support his conviction for conspiracy to commit petty theft because the evidence fails to establish the value of the objects taken. Respondent contends the evidence is sufficient to prove the crime of petty theft because that offense only requires proof the stolen property had some intrinsic value, however slight. We agree with respondent.

When the defendant challenges the sufficiency of the evidence to support his conviction, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)

Defendant was charged with conspiracy to commit the crime of misdemeanor theft. Section 484, subdivision (a) defines theft generally as the felonious taking away of the personal property of another. However, theft is divided into two degrees, grand theft and petty theft. ( 486.) The crime of grand theft includes the taking of specified types of property, taking property from the person of another, and taking money, labor, or property of a value exceeding four hundred dollars. ( 487.) All other theft is petty theft. ( 488.)

For purposes of proving a charge of grand theft, the value of the stolen item is determined by an objective standard, namely its fair market value. ( 484, subd. (a), 487, subd. (a); People v. Lizarraga (1954) 122 Cal.App.2d 436, 438; People v. Tijerina (1969) 1 Cal.3d 41, 45.)

Fair market value is not at issue in a prosecution for petty theft however. To prove this offense, the prosecution need only prove the stolen property has some intrinsic value, however slight. (People v. Martinez(2002) 95 Cal.App.4th 581, 585.) Websters Third New International Dictionary (1966) defines intrinsic to mean, inter alia, 2 a: belonging to the inmost constitution or essential nature of a thing . . . c: being good in itself or irreducible: being desirable or desired for its own sake and without regard to anything else. (At p. 1186.) Thus, the question of intrinsic value may include a subjective determination that is not necessarily answered by looking to the objects fair market value.

Examples of items found to have intrinsic value include soap, shampoo, hot water (People v. Martinez, supra, 95 Cal.App.4th at p. 585), wartime gasoline ration stamps (People v. Leyvas (1946) 73 Cal.App.2d 863, 866), and an empty cigarette carton. (People v. Franco (1970) 4 Cal.App.3d 535, 542.)

Applying these principles, we find the evidence is sufficient to support an inference the arrowheads and other archaeological artifacts taken by defendant have intrinsic value because defendant collected them as a hobby, which raises an inference these objects have intrinsic value as collectable items.

Pointing to the admission of expert testimony concerning the archaeological value of the stolen property,^[10]defendant cites United States v. Ligon (9th Cir. 2006) 440 F.3d 1182, for the proposition the archaeological value of an object does not establish the objects market value. In Ligon, the defendant took an American Indian petroglyph and was charged with stealing government property in violation of 18 United States Code section 641. That section requires proof of the value of the stolen property and defines value as face, par, or market value, or cost price, either wholesale or retail, whichever is greater. (440 F.3d at p. 1184.) To prove the value of the petroglyph, the prosecution relied solely on the objects archaeological value, which was defined by regulation as the value of the information associated with the archaeological resource. (Id. at p. 1185.) The court found the evidence of archaeological value insufficient where, as there, the prosecution had evidence of fair market value but failed to introduce it. (Ibid.)

Ligon is clearly inapposite because, as stated, fair market value is not an element of the crime of petty theft under section 484 and the evidence of the artifacts archaeological value was offered to prove the alternate target offense under section 622 1/2, which proscribes willfully injuring, disfiguring, defacing, or destroying any object or thing of archeological or historical interest or value . . . . ( 622 1/2, italics added.) Accordingly, we reject defendants claim of error.
B. Injuring Objects of Archaeological or Historical Value

Although labeled a challenge to the sufficiency of the evidence, defendant argues that his conviction for conspiracy must be reversed because section 622 1/2 is unconstitutionally vague. In his view, the phrase archeological or historical value or interest is too vague to alert people to the fact they are committing a crime. Respondent contends the statute is not void for vagueness.

We need not address this claim. The information charged defendant with one count of conspiracy but alleged two target offenses, theft and injuring or destroying an object of archaeological or historical value in violation of section

622 1/2. In its verdict convicting defendant of conspiracy, the jury found true the allegations that defendant conspired to commit both offenses. In Part A, we found the evidence sufficient to support the jurys finding as to the petty theft. Since a charge of conspiracy may be based upon an agreement to commit a single target offense ( 182, subd. (a)(1); People v. Russo (2001) 25 Cal.4th 1124, 1135 (Russo)), any constitutional infirmity relating to section 622 1/2 is harmless as it relates to the conviction for conspiracy. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].) We therefore decline to reach the merits of this claim.

III.

Hearsay Statement of a Co-Conspirator

Defendant contends the trial court erred by admitting the hearsay statement of Steve Ragan, one of the co-conspirators. He argues that (1) the trial court applied the wrong evidentiary burden for admitting the statement, (2) the statement is inadmissible under Evidence Code section 1223 because it was not made in furtherance of the conspiracy, and (3) the statement is inadmissible under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177](Crawford). To avoid forfeiture of the second and third argument, he further argues that counsels failure to object to the evidence on those grounds constitutes ineffective assistance of counsel.

Respondent concedes the evidence was erroneously admitted because the statements were not made in furtherance of the conspiracy and were testimonial in nature, but argues defendant forfeited the claim of error and has failed to establish prejudice.

We find counsel raised a sufficient objection to preserve the claim for appellate review. We also find admission of Ragans hearsay statements constituted error under Crawford but conclude the error was harmless. Because we so hold, we do not address the parties other arguments.

Deputy Cissna provided the following testimony of the inadmissible statements. While she and other officers were conducting a search of Steve Ragans residence, she asked him where he obtained the arrowheads and other artifacts seized from his bedroom. He told her he had been collecting them for a few years and had found them at four sites in or near Tin Ranch, Bear Creek, Bald Mountain, and Pilot Hill. Ragan indicated he had conducted his collecting activities with a number of people and named defendant as one of those people. He said he showed defendant the Bear Creek site as well as the Tin Ranch site, where they had gone about six or eight months earlier while looking for firewood. Ragan admitted he and defendant had gone together to the Bear Creek, Tin Ranch, and Bald Mountain locations multiple times to dig and look for crystals and arrowheads.

Defense counsel objected to the admission of these statements as inadmissible hearsay because [t]heres nothing to tie Mr. Ragan at this point to my client or any activity thats occurred so far and then stated, [o]nce he testifies, this is all free.

In Crawford, supra, 541 U.S. 36 [158 L.Ed.2d 177], the high court held that the Confrontation Clause bars admission of testimonial statements of a declarant absent from trial unless the declarant is unavailable as a witness and there has been a prior opportunity to cross-examine the declarant as a witness. (Id. at p. 59 [at p. 197].)

Because the crux of an objection under Crawford is the hearsay declarants absence from trial, we find defense counsels objection on that ground was sufficient to preserve appellate review under Crawford.

Turning to the question of error, Crawfords prohibition applies only to testimonial declarations, which include statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Statements taken by police officers during interrogation fall within that category. (541 U.S. at p. 52 [at p. 193].) Ragans statements were made to police officers while they were conducting a search of his room. Since respondent concedes the statements would most certainly have resulted in exclusion under Crawford, we shall assume without deciding that they were testimonial in nature and that admission of the statements was error.

We evaluate Crawford error under the Chapman standard of prejudice (People v. Harrison (2005) 35 Cal.4th 208, 239), which requires that we reverse the conviction unless we find beyond a reasonable doubt that the jury verdict would have been the same absent the error. (Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at p. 711].) Applying that test, we find the error was not prejudicial because as we detail below, defendant admitted facts that were the same or equally incriminating as those disclosed by Ragans hearsay statements.

When contacted by the officers on March 21st, defendant told them he discovered Tin Ranch with his girlfriend Rowena Sundin during the summer of 2002 while woodcutting and that they returned to that site in October 2002, when they started digging for arrowheads. He indicated he had dug that site with her three or four times looking for artifacts and had also been to that site a couple of times to dig with his neighbor Jannell Garrett. He further told the officers that Ragan had found arrowheads at Tin Ranch many years before and defendant admitted that he had dug for artifacts at the Bear Creek site with Ragan. The jury also heard Sundins testimony admitting that she may have told officers that she and defendant had been to Tin Ranch a number of times to look for arrowheads.

In addition, the jury heard the officers testimony that when they contacted defendant and Garrett on March 21st, Garretts truck was parked on the side of the road in Tin Ranch and that the officers found in the truck, a shovel, a rake, several buckets filled with dirt, a small pick, and a cloth pouch containing rocks and arrowheads. In addition, defendant had small crystal rocks in his pocket.

In sum, the evidence clearly establishes by defendants own admissions, the admissions of his co-conspirator, and the testimony of the officers who personally observed his criminal activities, that defendant and Garrett planned to go to Tin Ranch to look for arrowheads and other artifacts and engaged in acts to carry out that plan. Since admission of Ragans hearsay statements adds nothing new or more compelling to this evidentiary stew, we conclude the erroneous admission of his statements was harmless beyond a reasonable doubt.

IV.

Instructions on Accomplice Testimony

and Co-Conspirators Do not Conflict

Defendant contends the trial court erroneously gave an instruction on accomplice testimony because that instruction conflicted with the instructions on the hearsay statements of co-conspirators and allowed the jury to consider those statements upon a lesser standard than the one required for co-conspirator statements.^[11] Respondent finds no error and no conflict. We find any possible error was harmless.

The trial court gave an instruction on accomplice testimony in accordance with CALCRIM No. 335. As given, that instruction informed the jury that if the charged conspiracy was committed, Rowena Sundin, Jannell Garrett and Steve Ragan were accomplices to that crime; that it could not convict defendant of conspiracy based on the statement or testimony of these accomplices alone; and it could use their statement or testimony to convict defendant only if (1) the statement or testimony is supported by other evidence believed by the jury; (2) the supporting evidence is independent of the accomplices statement or testimony; and (3) the supporting evidence tends to connect the defendant to the conspiracy. The instruction further informed the jury that the supporting evidence may be slight and does not need to support every fact about which the witness testified, but must tend to connect the defendant to the commission of the crime. Last, the court informed the jury it should view with caution an accomplices statement or testimony that incriminates defendant.

The trial court also instructed the jury in accordance with CALCRIM No. 418, relating to a co-conspirators hearsay statements. By this instruction the court informed the jury that in determining whether the People proved any of the charged crimes, the jury may not consider any statement made out of court by Sundin, Garrett, or Ragan until the People prove by a preponderance of the evidence that (1) some evidence other than the statement itself establishes that a conspiracy to commit a crime existed when the statement was made, (2) Sundin, Garrett, or Ragan were members of and were participating in the conspiracy when they made the statement, (3) Sundin, Garret, or Ragan made the statement in order to further the goal of the conspiracy, and (4) the statement was made before or during the time the defendant was participating in the conspiracy. The court also instructed the jury that the preponderance of the evidence burden of proof is different than the standard of proof beyond a reasonable doubt and defined it as more likely than not that the fact is true.

Defendant argues that the jury could have been confused when considering the hearsay statements of the coconspirators and applied the slight corroboration standard applicable to the testimony of accomplices instead of the preponderance of the evidence standard applicable to coconspirators hearsay statements. We need not decide whether these two instructions are in conflict or created any confusion for the jury because any confusion was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.)

Garretts statements were not introduced and therefore were not at issue. As we have found in Part III, Ragans statements were improperly introduced under Crawford W. Washington, supra, 541 U.S. 36 [158 L.Ed.2d 177] but the error was harmless. For the same reasons discussed in that part, any possible confusion created by the two instructions was likewise harmless in light of Sundins testimony, the officers testimony, and defendants admissions. Sundins statements to Agent Power on the other hand were admissible as prior inconsistent statements under Evidence Code section 1235.^[12] As such, the coconspirator instruction was inapplicable to the jurys consideration of herstatements and any possibility the jury wrongly applied the slight corroboration standard to her statements was harmless.

V.

Failure to Instruct on Specific Overt Acts

Defendant contends the trial court erred by failing to instruct the jury on the specific overt acts. Respondent concedes the trial court failed to do so but argues the error was cured when the trial court read the information to the prospective jurors at the beginning of jury selection.

We find no error because there is no requirement that the trial court instruct the jury on any specific overt act.

The trial court instructed the jury on the elements of conspiracy, including the element that the defendant committed at least one of the alleged overt acts to accomplish injury to an object of archeological or historical interest and petty theft. Although this instruction appears to contemplate that the overt acts would be listed, the trial court failed to do so. It did however, instruct on the definition of an overt act.^[13]

To support a conviction for conspiracy there must be proof of the commission of an overt act by one or more of the parties to the conspiratorial agreement and in furtherance of the conspiracy. (Russo, supra, 25 Cal.4th at p. 1131.) An overt act is therefore an element of the crime of conspiracy (People v. Swain (1996) 12 Cal.4th 593, 600 & fn. 1) and must be proven beyond a reasonable doubt. (Russo, supra, 25 Cal.4th at p. 1134.)

However, as the court in Russo concluded, while the jury must unanimously agree that an overt act was committed, it need not be unanimous in finding that a specific overt act was committed. This is because there is no unanimity requirement for the prosecutions theory of the case and the specific overt acts only concern the prosecutions theory as to the way the crime was committed. (Russo, supra, 25 Cal.4th at pp. 1135-1136.) The court explained that [d]isagreement as to who the coconspirators were or who did an overt act, or exactly what that act was, does not invalidate a conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit some overt act in furtherance of the conspiracy. (Id. at p. 1135.)

Relying on the above quoted language from Russo, supra, 25 Cal.4th at page 1135, the court in People v. Prieto (2003) 30 Cal.4th 226, rejected the same claim raised by defendant herein that the trial court erred by failing to identify the alleged overt acts on a charge of conspiracy. The Supreme Court found no error because the trial court had properly instructed the jury on the definition of an overt act. (Id. at p. 251.)

Likewise the trial court below also properly instructed the jury on the definition of an overt act. Additionally, the prosecutor defined an overt act in her closing statement and listed several of the alleged overt acts as examples. We therefore find no error.

VI.

Motion for Acquittal

Defendant contends the trial court erred when it denied his motion for acquittal. As points of error, he raises the same grounds we rejected in Parts II and III, namely the evidence failed to show that defendant conspired to commit violations of section 484 or 622 1/2 and Ragans hearsay statements were improperly admitted. Respondent contends we need not reach this claim because it is based on grounds not raised below. We agree and reject defendants contention.

Defendant moved for acquittal under section 1118.1 as to all three counts at the conclusion of the prosecutions case-in-chief. As to the count charging conspiracy, he argued, I dont believe the stated evidence shows theres been any evidence of a specific intent to form . . . a conspiracy as well as the specific intent to commit one of the target crimes in the conspiracy. I admit theres some circumstantial evidence, but I dont believe that meets the 1118.1 criteria.

Defendant makes no claim the trial court erred in denying the motion on the ground raised at trial. He has therefore failed to establish trial court error. His present claims also have no merit for the reasons discussed in Parts II through IV.

VII.

Motion for New Trial

Defendant contends the trial court erred by denying his motion for new trial on the grounds there was a material variance between the conspiracy charge and the verdict form. Respondent argues the motion was properly denied because the jury was correctly instructed and any defect in the verdict form was harmless clerical error. We find the error was harmless.

Both the information and the verdict form state that defendant conspired with another to commit the crimes of theft, in violation of section 484 and Tampering with Archeological or historical objects, in violation of Section 622 1/2 of the Penal Code . . . . It is undisputed this language fails to track the statutory language, which states that [e]very person, not the owner thereof, who willfully injures, disfigures, defaces, or destroys any object or thing of archaeological or historical interest or value, whether situated on private lands or within any public park or place, is guilty of a misdemeanor.

Citing People v. Reddick (1959) 176 Cal.App.2d 806, 821, the trial court denied defendants motion after finding the error was harmless clerical error because the jury had been properly instructed on the definition and elements of section 622 1/2.

We need not decide whether the error was harmless under Reddick because we find it is harmless for the same reasons stated in Part II.B, that the crime of conspiracy may be based upon an agreement to commit only one offense ( 182, subd. (a); Russo, supra, 25 Cal.4th at p. 1135) and the jury found defendant conspired to commit petty theft. Thus, any error in the information or verdict form relating to section 622 1/2, which was alleged as an alternate target offense, is harmless error. (People v. Watson, supra, 46 Cal.2d at p. 836.)

VIII

The Time-Barred Misdemeanor Target Offenses

Were Not Improperly Resuscitated By

Prosecuting them as the Basis for a Conspiracy

Relying primarily on language in a concurring opinion by Justice Jackson in Krulewitch v. United States (1949) 336 U.S. 440, 445-446 [93 L.Ed. 790, 796], defendant contends the government should not be allowed to resuscitate time-barred misdemeanor offenses by prosecuting them as a felony conspiracy. While failing to cite the controlling precedent, he concedes the law is agin [him] and raises this claim to preserve it for federal review. Respondent contends the prosecutor acted properly but also fails to offer any legal authority or analysis, asserting he will save his response for another forum.

We find defendants contention has no merit. The statute of limitations for felony offenses punishable by imprisonment in the state prison is three years ( 801) while the period of limitations for misdemeanors is one year. ( 802.) Although a conspiracy may be punished by imprisonment in the county jail or in the state prison, defendant was charged with felony conspiracy, which brought it within the three year period of limitations. ( 801.)

Because conspiracy may be based upon an agreement to commit a misdemeanor (People v. Malotte (1956) 46 Cal.2d 59, 66), it has long been held that a charge of felony conspiracy to commit a misdemeanor target offense may be filed within the three-year statute of limitations governing felonies. (Davis v. Superior Court of Marin County (1959) 175 Cal.App.2d 8, 20-21.)

We also note that Krulewitch, upon which defendant relies, involved the admissibility of a co-conspirators hearsay statement made after the target offense was completed. The case did not involve a statute of limitations problem nor was there any mention about the statute of limitations. We therefore reject this claim of error.

IX.

Cumulative Error

Defendant contends the cumulative effect of the errors requires reversal. We disagree.

Errors committed during trial may have a cumulative prejudicial impact requiring reversal, even though, when viewed individually, the errors are not prejudicial. (People v. Holt (1984) 37 Cal.3d 436, 458-459.) Such is not the case here.

We engaged in five instances of harmless error analysis and found no prejudice resulted from any of the asserted errors. In two of those instances, discussed in Parts II.B and VII, the asserted errors related to the alternate target offense of destroying archaeological or historical objects in violation of section 622 1/2. We concluded those errors, if any, were harmless because that offense is not essential to the conspiracy conviction. For that same reason, neither of those asserted errors combined to aggravate the effect of the other three errors. Moreover, because the other errors were independent of each other and the prosecutions case was strong while the defense evidence was weak, they had no cumulative prejudicialimpact.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

RAYE , J.

CANTIL-SAKAUYE , J.

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^[1] All further section references are to the Penal Code unless otherwise specified.

^[2] The jury acquitted defendant of receiving stolen property. ( 496, subd. (a); count 2.)

^[3] The trial court noted that defendant failed to make application for probation.

^[4] Sharon Warren owned an undeveloped 10-acre parcel off of Tin Ranch Road, which she sold in October 2005. She did not give defendant or anyone else permission to go onto her property in March 2003.

^[5] In 1990, Hempfling submitted a timber harvest plan and as a condition of approval, he was required to conduct an archaeological survey of the property. The survey report identified a protected area on parcels 46 and 49 and restricted Hempflings right to harvest any trees in that area or provide access to any tractors or personnel.

^[6] Nevertheless, defendant admitted he might have used the crate to sift dirt for Sundins garden.

^[7] The instruction on conspiracy advised the jury that the prosecution had to prove One, the defendant intended to agree and did agree with [his coconspirators] to commit injury to an object of archeological or historical interest or petty theft; [] Two, at the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit injury to an object of archeological or historical interest or petty theft. [] Three, the defendant committed at least one of the alleged overt acts to accomplish injury to an object of archeological or historical interest and petty theft; [] And, four, at least one of these overt acts was committed in California. (Italics added.)

The instruction on petty theft informed the jury that the prosecution had to prove One, the defendant or one of the conspirators took possession of property owned by someone else; [] Two, the defendant or one of the conspirators took the property without the owners consent; [] Three, when the defendant or one of the conspirators took the property, he intended to deprive the owner of it personally; [] And, four, the defendant or one of the conspirators moved the property, even a small distance, and kept it for any period of time, however brief.

^[8] Although the evidence showed holes had been dug on private property and government property, the evidence did not establish from which property the stolen arrowheads and other artifacts were taken. Nevertheless, because theft can be committed against a private person as well as against the government (People v. Crow (1993) 6 Cal.4th 952, 957 [theft of government property]), the gap in the evidence is of no legal significance.

^[9] It also appears counsels failure to request a mistake of law instruction was a matter of reasonable trial tactics. Rather than raise it as a formal defense, he used it to raise a reasonable doubt as to defendants specific intent. In this way, he was able to characterize defendants acts as an innocent life-long hobby and then argue that since defendant did not think collecting dirt from the side of the road was illegal, he had no intent to commit a crime. By raising defendants mistaken belief in this context, counsel avoided having to overcome the good faith element of the mistake of law defense (People v. Vineberg, supra, 125 Cal.App.3d at p. 137; 1 Witkin & Epstein, Cal. Criminal Law, supra, Defenses, 37, pp. 368-369), one that posed a number of factual pitfalls.

^[10] Krista Deal, district archeologist of the Pacific Ranger District for the El Dorado National Forest testified that she visited the Tin Ranch site with Officer Campbell on April 9, 2003, and examined the rocks and arrowheads that defendant collected from that site. She found the Tin Ranch site a fully prehistoric site about 65 meters by 150 meters in size, with bedrock mortars called grinding rocks, the remains from manufacturing stone tools, and other deposits evincing human activity. She examined over 1,000 items of evidence obtained from defendant to determine whether any of the items were prehistoric artifacts that people made or used. These objects allow scientists to learn when people were there, what type of activities they engaged in, how long they were at the site, their relationship with the surrounding area, who they traded with, and what they ate. Deal classified the items according to their scientific value and concluded that 578 of the items were cultural artifacts, 93 were probably cultural artifacts, and 432 were not cultural artifacts. Deal concluded that Tin Ranch is a rich archeological site with tremendous value in studying how Native American people lived during that time and that digging vandal holes and removing artifacts from the site diminishes the value of the site by destroying or carrying off the available information.

^[11] Defendant traces the trial courts error to People v. Jeffery (1995) 37 Cal.App.4th 209 at pages 215 through 216, which he argues was incorrectly decided because, in his view, Jeffery confused the preponderance requirement for admissibility of co-conspirators statements with the prima facie requirement for admissibility of accomplice testimony. Jeffery holds that in determining admissibility in an Evidence Code section 403 hearing, the trial court need only find prima facie evidence of the preliminary facts specified in Evidence Code section 1223. (Id. at p. 216.) More recently, People v. Herrera (2000) 83 Cal.App.4th 46 at page 63, held that in determining the admissibility of a co-conspirators hearsay statement, the standard for proving a prima facie case in an Evidence Code section 403 hearing is the preponderance of the evidence standard, i.e. one that is more likely than not to show that a conspiracy existed. We need not consider whether the preponderance standard is required to establish a prima facie case under Evidence Code section 403, because here defendant is challenging the jury instructions not the trial courts factual determinations at the section 403 hearing and the trial court correctly informed the jury in accordance with CALCRIM No. 418 that it had to find the preliminary facts by a preponderance of the evidence.

^[12] Sundin told Agent Power that she and defendant went to Tin Ranch where she took rocks and crystals and he dug holes andtook the dirt, which he would later sift for arrowheads. By contrast, at trial she testified that she did not recall excavating or removing anything from the Tin Ranch area.

^[13] The trial court instructed the jury that [a]n overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does [sic] have to be a criminal act itself.