Brief Bank # B-548
XVIII. THE TRIAL COURT’S RENDITION OF INSTRUCTIONS ON EMBEZZLEMENT WHICH FAILED TO DEFINE KEY ELEMENTS OF THAT OFFENSE RELIEVED THE JURY OF ITS DUTY TO DETERMINE THE ESSENTIAL FACTUAL ISSUES, DENIED APPELLANT DUE PROCESS, AND REQUIRES REVERSAL
Introduction
As previously noted, the trial court instructed the jury on the form of theft called embezzlement. Appellant has already shown how none of the counts involved facts which would support conviction on that theory. To do so, it was necessary to cite law which the jury never heard. Here, appellant contends that the jury instructions defining embezzlement were inadequate and permitted the jury to find embezzlement where no such crime occurred. Like the previous error, this one enabled the jury to find appellant guilty without regard to the weight of the evidence that he defrauded any of the named victims.
A. The Facts
Per CALJIC No. 14.07, appellant’s jury was told that embezzlement is committed by “every person to whom property has been entrusted who fraudulently appropriates such property to his own use or purpose . . . .” The elements were said to be the existence of a “relation of trust and confidence” between two persons, the acceptance by one person of property entrusted to him or her by the other person, and the specific intent to deprive the other person of his or her property. (R.T. 1467.)
As previously noted, the prosecutor adduced evidence that a financial institution held Auto International in a position of trust with respect to its contractual duty to secure title to cars. (R.T. 881‑882.) More generally, he argued that jurors could base their verdicts on any one of the four theft theories. (R.T. 1346‑1347.)
B. The Failure to Define “Relation of Trust and Confidence” Denied Appellant His Federal and State Constitutional Right to Jury Trial And to Due Process of Law
The existence of a fiduciary relationship between victim and defendant is essential to the crime of embezzlement. (2 Witkin & Epstein, Cal. Crim. Law, (2d ed. 1988) § 590, p. 665.) Such a relationship exists where a person places trust in the fidelity of another. (People v. Threestar (1985) 167 Cal.App.3d 747, 758.)
The instruction used by the trial court attempts to convey this requirement with the phrase “relation of trust and confidence.” Most lawyers would know that phrase to be a term of art referring to a fiduciary relationship, i.e., one of trustee, agency, bailment and the like, as opposed to a standard buyer-seller relationship. But in common parlance the words “trust” and “confidence” refer to mental states which may well occur in people trading with one another at arms length. On the instructions given, ordinary jurors could not have understood these words to refer only to trust and confidence in the loyalty of another person. They would instead understand them to include that “trust and confidence” which is essential to an ordinary business relationship.
The court could have modified the instruction so as to include the word fidelity or loyalty. Or the court could have used the word fiduciary, and provided examples, as do the texts to which lawyers turn for definition. (See, e.g., 2 Witkin & Epstein, Cal. Crim. Law, (2d ed. 1988) §590, p. 665.) Or the court could have said that a “relation of trust and confidence” is a relationship distinct from that which exists between ordinary buyers and sellers of property.
None of these approaches was used here. This was error. A trial court must define, sua sponte, any technical terms used in a jury instruction defining an element of the offense. This is especially true where, as here, the technical term has a different meaning in common usage. (See, e.g., People v. Shoals (1992) 8 Cal.App.4th 475, 489‑490 [court must instruct sua sponte on definition of “opening or maintaining” a place for unlawful distribution of controlled substance]; People v. Smith (1987) 188 Cal.App.3d 1495, 1514 [definition of “viable”]; People v. Pitmon (1985) 170 Cal.App.3d 38, 52 [definition of “force” as used in Penal Code section 288, subdivision (b)]; People v. McElheny (1982) 137 Cal.App.3d 396, 403‑404 [definition of “assault”].)
Moreover, the error was of constitutional dimension. The California Constitution requires that every material issue of fact be submitted to the jury. (People v. Sedeno (1974) 10 Cal.3d 703, 720.) The Sixth Amendment to the federal constitution requires a jury determination on each element of the offense. Likewise, the 14th amendment Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364.)
The absence of a proper instruction on the definition of the necessary relationship between victim and defendant relieved the state of its burden to prove to the satisfaction of the jury the existence of that fiduciary relationship so essential to embezzlement. Appellant was thereby denied a jury trial on that element, while the state was thereby relieved of the obligation to prove ‘every ingredient of an offense beyond a reasonable doubt . . . .’ [Citations.]” People v. Figueroa (1986) 41 Cal.3d 714, 725.)
C. The Same Rights Were Denied By the Failure To Inform the Jury That Embezzlement Requires That The Victim Have Transferred Possession Only, And That Title To Money Passes To The Recipient When Received Under A Contract of Sale Without Restrictions As To Its Use
As previously noted, embezzlement requires that the victim have transferred possession only. When money or property is received under a contract of sale without restrictions as to its use, there can be no embezzlement because title passes to the recipient. (People v. Smith, supra, 155 Cal.App.3d 1103, 1142‑1143.) The standard instruction given to appellant’s jury omitted these rules.
Proper instruction on these points was essential to a fair decision on almost all counts. The financial institutions, car dealers, and car purchasers gave Auto International money and property under contracts of sale with no restrictions on the use of the property or the funds. That cannot be embezzlement under Penal Code section 484. But the jury was not so informed.
“‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ [Citations.]” (People v. Wickersham (1982) 32 Cal.3d 307, 323.)
“‘At a minimum, it is the court’s duty to ensure the jury is adequately instructed on the law governing all elements of the case submitted to it to the extent necessary for a proper determination in conformity with the applicable law.’ [Citation.]” (People v. Haney (1977) 75 Cal.App.3d 308, 312.)
The failure to inform the jury on points so important to the case must be deemed constitutional error. This mistake opened the embezzlement theory as a route through which jurors could escape determination of the closely contested issue of whether appellant defrauded the victims. As previously noted, instructional error which relieves the jury of its factfinding duty denies the defendant’s due process and jury trial rights. (Carella v. California (1989) 491 U.S. 263, 265; United States v. Caldwell, supra, ___ F.2d ___, 93 DJ D.A.R. 3475, 3476; People v. Sedeno, supra, 10 Cal.3d at p. 501.)
D. Reversal is Required
As with the error discussed under the previous Roman numeral, the errors relating to the embezzlement instruction are reversible under several lines of authority. Failure to render a required definitional instruction is a denial of the right to have the jury determine every material issue, and “‘constitutes a miscarriage of justice regardless of the strength of the prosecution’s case.’ [Citation.]” (People v. Shoals, supra, 8 Cal.App.4th 475, 490 [reversing for failure to define “opening and maintaining”].) California doctrine requires reversal unless the issue posed by the erroneously omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Sheldon (1989) 48 Cal.3d 935, 961‑962 [reversing for failure to define “assault”].) Here, we have no indication that the jury resolved that appellant was guilty of embezzlement charge under proper instructions. There were no proper instructions on that offense.
