Brief Bank # B-547
XVII. THE TRIAL COURT’S INSTRUCTION ON TRESPASSORY LARCENY (CALJIC NO. 14.02) RELIEVED THE JURY OF ITS DUTY TO DETERMINE THE ESSENTIAL FACTUAL ISSUES, DENIED APPELLANT DUE PROCESS, AND REQUIRES REVERSAL
The foregoing claims of insufficiency of the evidence do not require a finding that appellant’s jury was unreasonable. Here, appellant will demonstrate that the jury’s verdict was dictated by instructions which effectively relieved the People of the burden of proving him guilty of the charged crime. Specifically, appellant will show that one of the four theft theories submitted to the jury was defined so as to make moot the question of whether appellant defrauded anyone, and thus denied appellant his right to jury trial and to due process of law. He will show that this instructional error is reversible per se, and would require reversal under traditional harmless error analysis.
A. The Facts
Appellant’s jury was instructed to find appellant guilty if it found the evidence sufficient to support any one of the four forms of theft described in the jury instructions. (R.T. 1471.)
One of the four theories of theft on which the jury was instructed was the trespassory larceny theory. Per CALJIC No. 14.02, the jury was told that theft must be deemed to have been committed if (1) a person took personal property of some value belonging to another, (2) with the specific intent to deprive the other person permanently of his or her property, (3) and the person carried such property away by obtaining physical possession and control for some period of time and by some movement of the property. (C.T. 1047, R.T. 1465‑1466.)
The jury was not informed, through instruction or otherwise, that this form of theft has no application where, as here, all taking was with victim consent and the issue is whether the consent was fraudulently induced.
In his opening statement and in closing argument to the jury, the prosecutor emphasized that the jury could find appellant guilty on any one of the four theft theories, including that represented in CALJIC No. 14.02. (R.T. 83, 1345‑1346.)
B. Consensual Taking, Larceny, and California Law
Penal Code section 484 states every person who “feloniously” takes the personal property of another is guilty of theft. This language refers to the common law crime known as larceny. The crime of larceny has been consolidated into the single crime of theft defined in the statute, but the elements have not changed. (People v. Ashley, supra, 42 Cal.2d at p. 258.)
Not every taking of personal property of another is a felonious taking constituting larceny. Larceny requires a taking that is either against the owner’s will (in other words, by trespass) or accomplished by fraud (as in larceny by trick). (See Perkins, Crim. Law (2d ed. 1969) pp. 246‑247.)
Consequently, some authorities say that lack of consent is an element of larceny. (People v. Werner (1940) 16 Cal.2d 216, 225, disapproved on another point in People v. Camodeca (1959) 52 Cal.2d 142, 146‑147.) Others say lack of consent is not an element, and that consent is a defense. (People v. Davis (1893) 97 Cal.194, 195; 1 Witkin & Epstein, Cal. Crim. Law (2d ed. 1988) §258, p. 296.) Still others say that lack of consent “is an element of the offense” but is “treated as a matter of defense.” (18 Cal.Jur.3d, Crim. Law, §1142, p. 167.) Professor Perkins adds, perspicaciously, that “[t]he cases of fraud have caused no little difficulty in this regard.” Without favorable or unfavorable comment, he records the view that consent is vitiated by fraud. (Perkins, Crim. Law (2d ed. 1969) p. 246.)
These variations in expression are not material here. All commentators agree that unless fraud is shown, the taking of property with the consent of the owner cannot amount to theft.
CALJIC No. 14.02 defies this principle in positing that all persons who take the property of another with intent to permanently deprive are guilty of theft. In the ordinary case this error causes little risk of harm. But where, as here, the jury should have been required to find fraud or acquit because the taking was clearly consensual, the problem with this instruction is brought home.
C. A Criminal Defendant Has The Right To Have The Jury Determine Every Element Of The offense And The Merits Of His Defense
A criminal defendant has the constitutional right to be free from conviction except upon a jury finding on all essential elements of the offense. This is the meaning of the right to trial by jury and due process of law. (U.S. Const., amends. 6, 14; Cal. Const., art I., sec. 16.) From this right flows the trial court’s obligation to instruct on all elements of the offense. (Cabana v. Bullock (1986) 474 U.S. 376, 384; People v. Sedeno (1974) 10 Cal.3d 703.)
Similarly, both federal and state constitutions mandate instruction upon defenses supported by the evidence and consistent with the defendant’s theory of the case. (United States v. Sotelo‑Murillo (9th Cir. 1989) 887 F.2d 176, 180; People v. Flannel (1979) 23 Cal 668, 684‑685.) Specifically, the trial court must instruct sua sponte on the relationship of those defenses to the elements of the charged offense. (People v. Stewart (1976) 16 Cal.3d 133, 140.)
Thus, whether lack of consent is an element or consent a matter of defense has no effect on the question of whether the instructions given by the trial court comported with constitutional guarantees. Having decided to instruct the jury on theft by trick and obtaining property by false pretenses (CALJIC Nos. 14.05, 14.10), the trial court should have either refused to give CALJIC No. 14.02, or modified same to reveal that lack of consent was essential or that consent was a defense.
D. The Instruction Denied Appellant His
Constitutional Rights And Requires Reversal
CALJIC No. 14.02 directed the jury to find appellant guilty regardless of the strength of the People’s proof on the elements of the crime. When read together with the instruction requiring conviction if any one of the theft theories was supported by the evidence, CALJIC No. 14.02 effectively relieved the jury of finding fraud, reliance, trick, device, or the elements of embezzlement. Jury instructions relieving juries of their factfinding duty deny a defendant’s due process right. (Carella v. California (1989) 491 U.S. 263, 265.)
“And because the Sixth Amendment requires that all elements of the crime be found by the jury ‑‑ not just by appellate judges reviewing the record ‑‑ we can’t say the error was harmless. [Citations.]” (United States v. Caldwell (March 18, 1993, No. 91-30131) ___ F.2d ___, 93 DJ D.A.R. 3475, 3476 [per Kosinski, J.)
The same conclusion follows from a line of California authorities. “[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and some of which are legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (People v. Green (1980) 27 Cal.3d 1, 69.) This doctrine applies where, as here, instructional error enabled the jury to convict on an improper theory. (People v. Guiton (1993) 4 Cal.4th 1116.) Under Green and Guiton, the reviewing court must reverse unless it is possible to determine from the record that the jury’s verdict rested on a proper theory. Such a determination is not possible here.
The prosecutor specifically declined to elect a theory either at the outset of the trial or in argument to the jury. (R.T. 25, 1346.) Although he suggested special attention be paid to instructions on embezzlement and theft by false pretenses, he discussed all four forms of theft and encouraged the jurors to choose among them freely and independently. (R.T. 1346‑1348.) The jury was instructed, per CALJIC No. 14.47, that agreement on the form of theft was not required. (R.T. 1471.)
The jury convicted appellant on all but one of the submitted counts after deliberations lasting less than seven hours. (C.T. 994‑997.) After requesting a list of exhibits and unsuccessfully seeking duplicate sets of jury instructions “so relevant passages could be highlighted,” the court reminded the jury to consider all of the instructions. (R.T. 1486.) The jury’s single mid-deliberation question concerned the effect of disagreement on a single count. (C.T. 996.) The unique feature of the one count on which the jury hung was the stipulated evidence that loss was $400.00, the figure which divides petty from grand theft. (R.T. 1093.)
If anything, the record supports a finding that the jury was likely to have relied upon the CALJIC No. 14.02 theory. The evidence was overwhelming only in its bulk, though not in substance. With that bulk of detailed factual material, and having received very little guidance from the attorneys concerning application of the various legal theories, a reasonable jury would look for the shortest route between “point A” and “point B”.
CALJIC No. 14.02 was that route. It took jurors straight from election of the foreman to issuance of the verdict without having to resolve the factual issues. All the jury had to do, and the only thing we know they did, was to count the money to determine total loss. This court must presume the reasonableness of jurors and their obedience to all instructions (People v. Fran (1990) 51 Cal.3d 718, 725), including erroneous ones. (People v. Lawson (1987) 189 Cal.App.3d 741, 748.) Consequently, this court cannot assume that the jury relied upon some theory for which the facts were in dispute rather than upon the simplicity of CALJIC No. 14.02.
Furthermore, traditional harmless error analysis yields the same result. This case is certainly not one in which any reasonable factfinder would have determined that appellant was guilty on proper instructions. On the contrary, a reasonable and properly instructed jury might well have acquitted appellant upon observing the weaknesses and gaps in the evidence explored in other portions of this brief. This court cannot declare with the requisite degree of certainty that the error made no contribution to the verdict, or that there is no reasonable probability of a different result. The error was not harmless.