Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 08CM0270 Peter M. Schultz, Judge.
Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J., and Hill, J.
Utah Charles Koon stole a dozen metal ladders from a farm and was convicted of grand theft. He argues that the combination of a standard motive instruction and a codefendant’s testimony that Koon was unemployed contravened decisional law that evidence of poverty or unemployment is inadmissible to prove a motive for theft. Responding to an objection to the prosecutor’s closing argument, however, the court gave a curative instruction that “the jury may not infer just because someone is unemployed he or she is a thief.” Koon’s trial counsel requested no other or additional instruction on the issue. Combined with the curative instruction, the motive instruction was appropriate, given the state of the evidence with respect to the other defendants. To the extent that Koon claims the court should have given a different or additional curative instruction, his argument has been waived by failure to make a request at trial. We will affirm.
FACTUAL AND PROCEDURAL HISTORIES
Kings County Deputy Sheriff Daren Sweeney was on patrol in Hanford when he spotted 12 metal ladders in Harvey William Jones’s front yard. Jones was Koon’s codefendant in this case. Next to the ladders were a power drill, some other tools, a milk can, and a trailer. In front of the house was a black Chevrolet Blazer belonging to Traci Ann Kokko, another codefendant.
Deputy Sweeney knew that Jones dealt in scrap metal and was not involved with farming, and that farm equipment was often stolen and sold as scrap in the county, so he stopped to investigate. A woman known as Boo-Koo was in the driveway and told Sweeney that Jones was in the back yard. Sweeney went there and found Jones and Kokko. He asked Jones if the tools he saw were the kind used to dismantle ladders. Jones said yes. Deputy Sweeney asked for permission to search the yard for more people. Jones gave permission. The deputy found Koon in the yard. Later, he seized the shoes of Kokko and Koon. Kokko’s were K-Swiss tennis shoes and Koon’s were Nike Air running shoes.
Some of the ladders had “Warmerdam Orchards” written on them, so the Sheriff’s Department contacted a farmer named Nick Warmerdam. He identified the ladders; some were his and others belonged to contractors of his. They had disappeared from a trailer on his property. The milk can and some of the tools in the driveway were also his. He said the ladders were worth about $100 dollars each but would cost $140 to $150 to replace, and the tools were worth about $35 or $40.
Sergeant Steven Fry went to Warmerdam’s farm and inspected the area around the trailer from which the ladders had been taken. He found shoe prints in the dirt that matched the soles of Koon’s and Kokko’s shoes with respect to size, logos, tread patterns and other details. He also found a blueberry pie box from Wal-Mart that was just like a blueberry pie box found in Kokko’s Blazer. Tire tracks of the same width and tread pattern as the tires on the Blazer were also found near the trailer from which the ladders had been taken.
The district attorney filed an information charging Koon, Kokko, and Jones with grand theft (Pen. Code, § 487, subd. (a)) and receiving stolen property (Pen. Code, § 496, subd. (a)). For sentence-enhancement purposes, the information alleged that Koon had a prior strike offense and had served two prior prison terms.
Koon did not testify at trial. Kokko testified that she was at Jones’s house early in the morning of the day in question. A scruffy-looking man named Don, whom she had never seen before, came to the house and offered her $50 to borrow the Blazer to pick up scrap metal. On Jones’s recommendation, Kokko agreed, as she was unemployed and “pretty broke.” She saw Don drive the Blazer away with a trailer attached. Then she went to sleep with Koon, who was her boyfriend. At some point while she was asleep, Koon left the house. After an hour or two, Don returned with the Blazer and the trailer. Awakened by the noise, Kokko went out to check on the Blazer. She saw the ladders on the ground. Don and Jones were arguing about whether the ladders were scrap metal. Don left in a huff. Kokko, Jones, and Koon (who had returned) went inside and were having coffee when Sweeney arrived. Nervous because the ladders were not scrap metal, Kokko and Jones went to the back yard to look for Don. He was not there, never paid the $50, and was never seen again.
Kokko testified that she had known Koon for about two months at the time. He did not have a job during that time. She had known Jones for four or five years. He also was unemployed all that time, except for odd jobs and recycling scrap metal.
Deputy Sweeney testified that Kokko told him she saw Koon and Jones unloading the ladders in the driveway. Kokko testified that she did not recall seeing that or telling the deputy about it.
The presentation of evidence concluded and the court instructed the jury. On its own motion, it included an instruction in accordance with Judicial Council of California Criminal Jury Instructions (2007-2008) (CALCRIM) No. 370 on motive:
“The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict, you may[,] however, consider whether a defendant had a motive.
“Having a motive may be a factor tending to show that a defendant is guilty. Not having a motive may be a factor tending to show that a defendant it not guilty.”
During his closing argument, the prosecutor said:
“[T]his is done by a bunch of people who have no jobs, there’s no testimony that any one of them have ever had in the history that they’ve known each other a steady job.
“What did [Kokko] say? ‘Well, I think I’ve known [Jones] for about five years.’ I think that’s my recollection of the testimony; certainly a few years.
“‘And have you ever known them to hold a steady job?’”
“‘No, he does odd job[s] here and there. Mow the law for somebody, you know, steal.’”
One of the defendants’ counsel objected and the court announced a recess, sending the jury out of the courtroom. It told counsel:
“It’s improper generally to argue that because someone is unemployed he or she is a criminal or more likely to have committed a criminal act.
“In this case, initially Miss [Kokko] raised or brought before the jury the issue of her need for money with her testimony about renting her, or loaning her car out in exchange for $50 in the middle of the night to a stranger, and the District Attorney was permitted to follow-up with questions about her employment once she broached the issue.
“Mr. Koon—excuse me, Mr. Jones’ employment has some relevance beyond just a general unfocused lack of employment, and that there’s evidence that he’s in the business of recycling metal, which has some direct relevance to this particular case, and the District Attorney was allowed to present further evidence that as far as the witness knew that’s his only occupation.
“I don’t see any particular relevance to Mr. Koon’s lack of employment in the case, and it’s probably improper to argue that as well as to [tell the] jury to draw the inference that simply because people are unemployed they are likely to have committed the crime. So I’m going to sustain the objection.
“The District Attorney can comment on the aspects of [Kokko’s] employment or lack thereof in connection with her testimony, and the evidence regarding the nature of Mr. Jones’ … employment but not on Mr. Koon’s lack of employment.”
The court asked counsel how to handle the issue with the jury. One of the other defendant’s counsel said, “Well, my first suggestion is it’s too late. It’s already out there and my client is not getting a fair trial.…” Counsel’s second suggestion was a curative instruction. The court then proposed a curative instruction. None of the defense counsel requested additional or other language than the court proposed. As read to the jury, the instruction was as follows:
“The objection to the prosecutor’s argument is sustained. The jury is to disregard any suggestion by the argument of the prosecutor that Miss [Kokko] testified that any of the defendant’s occupation was stealing. She did not testify to that.
“Further, the jury may not infer just because someone is unemployed he or she is a thief. Evidence of Mr. Jones’ history of being involved in recycling metal may be considered by the jury.
“Evidence of Miss [Kokko’s] lack of employment at the time of the alleged crime may be considered by the jury along with all the other evidence.”
The jury found Koon and Kokko guilty of grand theft. The charge of receiving stolen property, a lesser-included offense, was dismissed. The charge of grand theft was dismissed as to Jones and the jury found him not guilty of receiving stolen property. After a bifurcated trial, Koon’s prior offense allegations were found true.
The court imposed the upper term of three years for grand theft, doubled it for the prior strike, and added two years for the two prior prison terms; the aggregate sentence is eight years.
DISCUSSION
Koon contends that the court should not have given the jury the standard motive instruction because it allowed the jury to infer from the evidence of his employment and financial status that he had a motive for theft. He argues that giving the instruction under these circumstances contravened case law stating that evidence of poverty or unemployment is inadmissible to prove a motive for theft. (E.g., People v. Koontz (2002) 27 Cal.4th 1041, 1076.) He joins the argument to the same effect made by Kokko on appeal in People v. Traci Ann Kokko, case No. F056276.
In a criminal trial, the court must give an instruction requested by a party if the instruction correctly states the law and relates to a material question upon which there is evidence substantial enough to merit consideration by the jury. (People v. Avena (1996) 13 Cal.4th 394, 424; People v. Wickersham (1982) 32 Cal.3d 307, 324, overruled on other grounds by People v. Barton (1995) 12 Cal.4th 186, 201.) The court must also give some instructions sua sponte:
“‘[E]ven in the absence of a request, a trial court must instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence, but need not instruct on specific points developed at trial. “The most rational interpretation of the phrase ‘general principles of law governing the case’ would seem to be as those principles of law commonly or closely and openly connected with the facts of the case before the court.” [Citations.]’” (People v. Michaels (2002) 28 Cal.4th 486, 529-530.)
The court is obligated not to instruct on principles of law that are irrelevant and will confuse the jury and relieve it from making necessary findings. (People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10, overruled on other grounds by People v. Flood (1998) 18 Cal.4th 470.) The court has no duty to give an instruction if it is repetitious of another instruction the court gives. (People v. Turner (1994) 8 Cal.4th 137, 203, overruled on other grounds by People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.”’” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
We see no defect in the language of CALCRIM No. 370, and Koon concedes that the correctness of its language is not in dispute. Instead, he makes two other arguments. First, he asserts that the motive instruction should not have been given at all under the circumstances and no clarifying instruction could have undone the harm it caused. The court, however, explained why the instruction was applicable and how evidence of the defendants’ financial and employment status could properly be considered: Jones’s past involvement in metal recycling was relevant to whether he had a motive to take the ladders, and Kokko’s lack of funds was relevant to her defense that she was motivated by Don’s offer of $50 to allow her truck to be used. Koon, in fact, concedes that “there was some marginal relevance regarding the employment or unemployment of Ms. Kokko and Mr. Jones.…” Evidence warranting the instruction being present, it was appropriate for the court to give it, provided the court warned the jury against improper application. That is just what the court did when it gave the curative instruction. There is no reason to think the jury was incapable of applying that instruction. We presume juries follow the court’s instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
Koon’s other argument is that the curative instruction was inadequate. Unlike the motive instruction, the curative instruction was not in writing, so the motive instruction “undoubtedly carried more weight.” Further, though the curative instruction explained the relevance of Kokko’s and Jones’s employment and financial status, and said the jury could not infer that a defendant is a thief because he is unemployed, it did not expressly tell the jury not to consider Koon’s unemployment as a motive. Koon perhaps withdraws this argument in his reply brief, saying his argument is only that the motive instruction should not have been given, not that the court failed to clarify it. We will address the argument anyway.
A more explicit curative instruction would have been a pinpoint instruction, i.e., one that relates particular facts to a legal issue in the case. A pinpoint instruction need be given only on request; a failure to give it absent objection or request is not a ground for reversal. (People v. Saille (1991) 54 Cal.3d 1103, 1120; People v. Rogers (2006) 39 Cal.4th 826, 878.) Koon did not object to the motive instruction or the curative instruction and did not request a different or additional instruction on the point. One of the other defense counsel made a “suggestion” that it was “too late” for a curative instruction, but Koon did not join in this suggestion, and no one suggested a different curative instruction. Koon’s claim that the curative instruction was inadequate is therefore waived.
Instructional error is not waived by failure to object at trial if the error affected substantial rights of the defendant. (Pen. Code, § 1259.) Under the circumstances, however, we do not believe that Koon’s substantial rights were affected by the court’s omission of a pinpoint instruction explicitly stating that evidence of his lack of funds was not to be considered to prove he had a motive for theft.
Finally, Kokko’s brief, which Koon incorporates in his brief by reference, argues that CALCRIM No. 370 is erroneous because it permits the jury to reach a verdict of guilty based on evidence of motive alone. Putting aside Koon’s statement that he is not challenging the language of CALCRIM No. 370 (which would seem to constitute an abandonment of this argument), we do not see how the instruction permits any such thing. It states that motive need not be proved, but “may be a factor tending to show” guilt. It is undisputed that the jury was correctly instructed on the elements of grand theft. Taken together, the elements instruction and the motive instruction told the jury that grand theft has certain elements and that motive is not one of them, but that motive can help to establish guilt. We see no reason to think the jury would have misinterpreted these instructions to mean that if Koon had a motive, then Koon was guilty. This is especially implausible in light of the curative instruction.
DISPOSITION
The judgment is affirmed.