Opinion
D027853 (San Diego County Super. Ct. No. SCD122775)
Filed July 9, 1998 Certified for Partial Publication
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I, III IV.
APPEAL from a judgment of the Superior Court of San Diego County, Richard J. Hanscom, Judge. (Judge of the Municipal Court for the San Diego Judicial District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) Affirmed in part, reversed in part with directions.
Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, Thomas Ingram was convicted of petty theft with a prior theft conviction (Pen. Code, §§ 484/666) and commercial burglary (§ 459). In a separate proceeding, the trial court found Ingram had three serious/violent prior felony convictions or "strikes" (§ 667, subds. (b)-(i)) and had served three prior prison terms (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced Ingram to state prison for 25 years to life under the Three Strikes law on the petty theft with a prior count. The sentence on the burglary count was stayed pursuant to section 654, and the prior prison term enhancements were stricken.
Ingram appeals, contending it was error to (1) allow evidence of his drug usage to show a motive for his current crimes, (2) deny his section 1118.1 motion to dismiss the petty theft charge because of insufficient evidence, and (3) not instruct on attempted theft by false pretense or larceny by trick or device. Ingram also contends the court erroneously found he had served three prior prison terms rather than two. He also challenges the instruction on reasonable doubt.
FACTS
A. The Instant Crimes
On August 8, 1996, between 12:40 and 12:45 p.m., Ingram was observed in the men's sportswear department at Nordstrom Rack by Charles Harris, a loss prevention agent for the store. Harris noted Ingram was carrying a white bag from Saks Fifth Avenue, which at that time was no longer in business in San Diego.
Ingram selected a pair of pants and went to the refund counter. Harris saw Ingram put the pants in his bag when the clerk turned her back. Later, Ingram took the pants partially out of the bag and removed the price sticker from the waistband.
As Ingram was waiting in line to return the pants, Harris telephoned the clerk, Alexandria Jacques, and instructed her to accept Ingram's return and make sure he signed the return documents. Harris also telephoned his colleague, Thomas Walsh, and asked him to come to the floor and assist him.
Harris then stood in the return line; he was behind Ingram, and there was one person between them. Harris heard Ingram tell Jacques that he had received the pants as a gift from his sister and the size was wrong. Ingram wanted a cash refund. Jacques telephoned a sales clerk for a price check, and Ingram disagreed with the quoted price, saying he believed the pants sold for a higher price. Ingram presented identification, and Jacques had him sign a return receipt.
Ingram put the cash and receipt in his pocket and began to walk away. Harris approached Ingram and showed him his security badge. Walsh walked up behind Ingram, and the two loss prevention agents escorted Ingram to their office. When the agents asked Ingram for his return receipt, Ingram took it out of his pocket, ripped it up and swallowed it. The agents handcuffed Ingram and called the police.
Ingram had no checks, credit cards or cash other than the $26.99 he had received in the return transaction with Jacques.
B. Ingram's Admission of Prior Bad Acts
In the spring of 1996, Ingram asked Kathy Iverson, a former girlfriend, if she would accompany him to Nordstrom to obtain cash to buy drugs. Ingram told Iverson he would get an item, usually clothing, and return it for cash; he did not need a receipt. In this manner, Ingram said he would net a couple hundred dollars. Ingram would save store bags to use in his scheme.
Iverson declined to go with Ingram that day. A couple of weeks later, after getting in a fight with Ingram, Iverson telephoned Nordstrom and reported Ingram's return scam.
C. Ingram's Prior Activity at Nordstrom
On June 24, 1996, Ingram attempted to return a sweater at the Horton Plaza Nordstrom. Ingram did not have a receipt, and the price ticket on the sweater did not have a "shank code sticker," which is part of the store's inventory control system and proof that an item had been sold. (The shank code sticker is generated at the time of a sale and placed on the back of the price ticket.) David Dicarlo, the manager in charge that day, gave Ingram a cash refund, but warned Ingram that in the future he would have to have identification and a receipt, and the tags would have to be attached to the item.
On July 14, 1996, Ingram attempted to return a tie without a receipt or price tag at the Horton Plaza Nordstrom. Ingram was upset when Carol Julian, the manager in charge that day, refused the return. Ingram pointed out he had identification and he always returned items without a receipt. (Nordstrom's policy is to give cash refunds without a receipt.)
On July 21, 1996, Ingram attempted to return items at the Nordstrom in La Jolla; the items had price tickets but no shank code stickers. Terry Ota, the acting manager of the store, said the items appeared to have been taken from a display. When the return was refused, Ingram said he always returned items at the store without a receipt. Ingram went to the customer service office and complained.
DISCUSSION
I. Evidence of Drug Usage
Ingram contends the trial court committed prejudicial error by allowing testimony of his drug use. The contention is without merit.
A. Proceedings Below
During direct examination, Kathy Iverson related a conversation she had with Ingram in May or June 1996 at a Shelter Island motel. The prosecutor asked the following question, and Iverson gave the following response:
"Q. What did he tell you about where he was going to go and what he was going to do?
"A. He told me that he was going to leave and go to Nordstrom and get some money and go get some drugs and he would be back."
No objection was lodged.
Later during Iverson's direct examination, she testified she telephoned Nordstrom to tell the store about Ingram's practice. The prosecutor asked the following question and Iverson gave the following answer:
"Q. Did you tell them that he is coming in on a daily basis for drug money?
"A. I don't think it was a daily basis. I just told them what he was doing, and I don't know about a daily basis, no, because I didn't know that."
At that point, defense counsel objected on the basis of improper character evidence; the objection was overruled.
During cross-examination, defense counsel brought out before Iverson had telephoned Nordstrom, Ingram had called Iverson's employer about her drug activities.
During redirect examination, Iverson testified she did not want to see Ingram any more because he had indicated he was using drugs again and she did not want to start using drugs again. Iverson also testified she was bitter that Ingram had not stopped using drugs.
During recross examination, Iverson testified she and Ingram had used drugs together during their relationship.
After the prosecution rested, defense counsel renewed his objection to the drug use evidence and moved to strike Iverson's testimony and for a mistrial.
B. There Was No Error
Generally, evidence of a defendant's drug use is inadmissible where "it 'tends only remotely or to an insignificant degree to prove a material fact in the case . . . .' [Citation.]" ( People v. Cardenas (1982) 31 Cal.3d 897, 906.) However, evidence of drug use is admissible where it has direct probative value to establish motive in committing theft crimes. ( People v. Felix (1994) 23 Cal.App.4th 1385, 1392-1393; see also Evid. Code, § 1101, subd. (b).) Here, Iverson's testimony that Ingram told her he was going to Nordstrom to obtain money for drugs was admissible to show Ingram's motive for his theft.
The question remains whether the probative value of the drug use as evidence of motive was substantially outweighed by the potential for prejudice. Under Evidence Code section 352, this is a call for the trial court to make, and will not be reversed on appeal absent a clear showing of abuse of discretion. ( People v. Mincey (1992) 2 Cal.4th 408, 439.) We discern no abuse of discretion.
As to Iverson's more extensive testimony about her and Ingram's drug use elicited during redirect examination and recross examination, we find Ingram's counsel opened the door for such testimony on cross-examination when he attacked her motives for contacting Nordstrom, namely retaliation for Ingram calling her employer and reporting her drug activities. There was no error in admitting any of the drug evidence.
II. Petty Theft Charge
With respect to the petty theft charge, Ingram mounts a two-prong challenge: (1) it was error not to grant his section 1118.1 motion to dismiss the count, and (2) the court did not properly instruct on theft because it failed to instruct on the various applicable theories of theft. For the reasons stated below, we find the section 1118.1 motion should have been granted; accordingly, it is not necessary to address the instructional issue.
A. Proceedings Below
After the close of the prosecution's case-in-chief, Ingram's counsel moved for a judgment of acquittal on the petty theft charge on the basis of People v. Lorenzo (1976) 64 Cal.App.3d Supp. 43. Up to this point, the prosecutor was proceeding under a theory of theft by false pretenses, namely that the sales clerk gave Ingram a refund based on his false representation. The trial court agreed with defense counsel that an element of theft by false pretenses — actual reliance upon Ingram's misrepresentations — was missing, and consequently, there was only evidence of an attempt of theft by false pretenses. However, the court denied the motion for judgment of acquittal because it found there was sufficient evidence that Ingram had committed theft by larceny. The court reasoned that by taking the pants Ingram acted with the intent to steal them for the money and in the alternative for the pants themselves. Hence, under the court's rationale, if Nordstrom did not give him the cash refund, Ingram's plan was to leave the store with the pants. The prosecutor adopted this theory in his closing argument.
B. The Law of Theft
Section 484, subdivision (a), provides in pertinent part:
"Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, . . . or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, . . . is guilty of theft. . . .
Section 484, as amended in 1927, redefined theft "by consolidating within such definition various `criminal acquisitive techniques' which were the subject of different common-law-defined larcenous offenses." ( People v. Darling (1964) 230 Cal.App.2d 615, 618.) This redefinition did not, however, change the elements of the included theft offenses. ( Ibid.) "[A] judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses." ( People v. Ashley (1954) 42 Cal.2d 246, 258.)
At issue here are two forms of theft — larceny and theft false pretenses — because these were the two theories advanced below.
Larceny requires the taking of personal property from the owner's possession without consent; asportation of that property; and an intent, without claim of right, to deprive the owner of the property wholly and permanently. ( Callan v. Superior Court (1962) 204 Cal.App.2d 652, 667.) For our purposes, two of these elements are particularly relevant: taking of property without the owner's consent; and intent to steal without a claim of right.
The common law crime of larceny was said to require a "'trespass in the taking.'" (2 LaFave Scott, Substantive Criminal Law (1986) § 8.1, p. 328.) If the owner of the property actually consents to the defendant's taking his property, there is no trespass in the taking and hence no larceny. Larceny by trick or device provides for an exception to the no-consent requirement for common-law larceny. Larceny by trick or device occurs when the defendant obtains possession of (but not title to) another's property by fraud or trickery; fraud vitiates consent and takes the place of the trespass. (See People v. Edwards (1925) 72 Cal.App. 102, 113, disapproved on another ground in In re Estrada (1965) 63 Cal.2d 740, 748.) Larceny by trick or device is a form of larceny and not a separate crime. (2 LaFave Scott, op. cit. supra, §§ 8.1, p. 330, 8.2, p. 339, fn. 35.)
However, if one, through false representations and with the intent to steal, obtains both possession and title to property there cannot be common-law larceny. The statutory crime of theft by false pretenses was created to fill the gap. (2 LaFave Scott, op. cit. supra, § 8.7, p. 383; 2 Witkin Epstein, Cal. Crim. Law (2d ed. 1988) § 602, pp. 680-681.)
Theft by false pretenses occurs where the defendant makes a false representation with the intent to defraud the owner of his or her property, and the owner is in fact defrauded. ( People v. Ashley, supra, 42 Cal.2d at p. 259.) "In other words, as in any other case of fraud, the injured party must have been induced to part with his property in reliance on the false representation." ( People v. Lorenzo, supra, 64 Cal.App.3d Supp. at p. 46.)
"The distinction between larceny and obtaining money or property by false pretenses turns on a question of title." ( Callan v. Superior Court, supra, 204 Cal.App.2d at p. 668.) The defendant who obtains property by larceny does not obtain title, while the defendant who obtains property by false pretenses does obtain title. (Perkins Boyce, Criminal Law (3d ed. 1982) False Pretenses, § 4.C.1., pp. 374-375, 389.) As explained by our Supreme Court:
"Although the crimes of larceny by trick and device and obtaining property by false pretenses are much alike, they are aimed at different criminal acquisitive techniques. Larceny by trick and device is the appropriation of property, the possession of which was fraudulently acquired; obtaining property by false pretenses is the fraudulent or deceitful acquisition of both title and possession." ( People v. Ashley, supra, 42 Cal.2d at p. 258, italics added.)
In People v. Lorenzo, supra, 64 Cal.App.3d Supp. 43, the manager of a market saw the defendant switch price tags from one kind of glove to another, switch price tags on chickens, pay for the chickens and gloves, then go to the parking lot where the manager arrested him. ( Id. at p. 45.) Found in the defendant's possession were a pair of gloves and two chickens with tags showing prices lower than the correct ones. ( Id. at pp. 45-46.) The reviewing court reduced the theft conviction to attempted theft, noting only the manager's alertness prevented consummation of the crime. ( Id. at pp. 45, 47-48.) The court also observed that the defendant did not commit theft by false pretenses because the manager failed to rely on his conduct; he was aware the defendant had switched price tags and allowed him to consummate his scheme in order to arrest him. ( Id. at p. 47.)
The Attorney General argues we should reject People v. Lorenzo, supra, 64 Cal.App.3d Supp. 43 because it mistakenly imputed the manager's knowledge to the store. We disagree.
In City of Kansas City v. Fritz (Mo.App. 1980) 607 S.W.2d 837, the defendant entered a department store, tore open a package of curtains, then took the package to a clerk and asked for a refund. The clerk game him a refund voucher and told him to cash it at the customer accommodation desk. Store employees, who had watched the defendant and were aware of what he had done, watched him exchange the voucher for cash, and then arrested him. ( Id. at p. 838.) The reviewing court reversed the conviction of obtaining money by false pretenses, noting the store had not relied on his representation that he had purchased the curtains since the employees knew he had simply removed them from the shelf. ( Id. at p. 839, citing People v. Lorenzo, supra, 64 Cal.App.3d Supp. 43.)
C. Analysis
On appeal, the standard of review for a motion for judgment of acquittal under section 1118.1 is the substantial evidence test. ( People v. Cuevas (1995) 12 Cal.4th 252, 261.) We review the record in the light most favorable to the result below to determine whether it discloses substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. ( People v. Johnson (1980) 26 Cal.3d 557, 578.)
In ruling on the section 1118.1 motion, the trial court correctly found there was no evidence Nordstrom relied upon Ingram's false representation. This is fatal to a cause of action of theft based on a theory of false pretenses. (See People v. Lorenzo, supra, 64 Cal.App.3d Supp. at p. 47.)
Under the evidence presented, Ingram properly could have been charged with attempted theft by false pretenses, but the evidence does not support theft by false pretenses because Nordstrom, through its agents, did not rely on Ingram's misrepresentations.
However, the trial court's reasoning that there was sufficient evidence to go to the jury on a theory of ordinary larceny was erroneous. Nordstrom, knowing in advance that Ingram's representations were going to be false, willingly gave him the refund money. This in effect was consent to the taking, which defeats common-law larceny. Nor can Ingram's actions amount to the form of larceny known as larceny by trick or device because Nordstrom, through its agents, knew Ingram's misrepresentations were false and did not give him the refund on the basis of those misrepresentations. In other words, because Ingram's fraud was ineffectual, Nordstrom's consent was not vitiated.
Next we address the theory — propounded by the trial court and adopted by the prosecution — that Ingram's actions amounted to larceny because he had the intent to either steal money by getting a refund or steal the pants if the cash return was denied. We consider this theory even though it is somewhat speculative with respect to Ingram's state of mind. In any event, there was insufficient evidence to support a larceny conviction under this theory, because Ingram did not walk away with the pants. In other words, the crime of stealing the pants was not completed; at most, the court's hypothesis would support an attempted theft by larceny.
In sum, the evidence was insufficient to support the theft charge on theories of common-law larceny, larceny by trick or device, or theft by false pretenses. The trial court should have granted Ingram's motion for judgment of acquittal on the petty theft charge.
However, after granting the section 1118.1 motion, the trial court could have allowed the prosecution to amend the information to add the lesser-included offense of attempted theft under a theory of theft by false pretenses. (See fn. 4, ante.) Ingram intended to commit this crime, and, but for the knowledge of the store employees, would have succeeded. Under section 1181, subdivision (6), we have the authority to reduce Ingram's conviction to attempted petty theft. We will not do so because the trial court did not instruct the jury on a theory of theft false pretenses. We also conclude it would neither serve the interests of justice nor be in the interests of judicial economy to remand for a new trial on attempted petty theft in light of the burglary conviction, which is unassailable. (See DISPOSITION, post.)
III. Prison Prior Allegation
Ingram contends he should have been found to have suffered two separate prior prison terms rather than three because two of them related to the same continuous period of incarceration. The contention has merit.
The first prior prison term allegation involved convictions in three cases, two in 1979 and one in 1980. The third prior prison term allegation involved a federal conviction on May 30, 1980. The sentences for the state convictions and the federal conviction were ordered to be run consecutively to each other. Ingram's state prison term began on October 1, 1980 and he was released from state prison to the custody of the federal officials on October 8, 1986. Federal records indicated he was admitted to the federal prison system on October 16, 1986.
Section 667.5, subdivision (g) provides:
"A prior separate prison term for the purposes of this section shall mean a continuous completed period of incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes . . . ."
This section has been interpreted:
"to mean that as long as there is 'a continuous completed period of prison incarceration,' a defendant who has served concurrent or consecutive prison sentences on various commitments is deemed to have served only one prior prison term for the purpose of the enhancement provisions of Penal Code section 667.5." ( People v. James (1980) 102 Cal.App.3d 728, 733.)
Neither below nor on appeal has the prosecution suggested that Ingram was not in continuous custody from October 1, 1980 until his release from federal prison. Under the presumption of official duty (Evid. Code, § 664), we infer that both the state and federal officials regularly performed their duties in conveying Ingram from a state penal institution to a federal one. On this record, the prosecution failed to meet its burden of proving beyond a reasonable doubt that Ingram suffered a separate prior prison term for the federal conviction.
Accordingly, we reverse the third prior prison term and order the trial court to amend the abstract of judgment accordingly.
IV. Reasonable Doubt Instruction
Ingram contends the jury instruction defining reasonable doubt was inadequate and deprived him of his right to due process. The contention is without merit.
The trial court, without objection, used the following definition of reasonable doubt, which is a verbatim version of the second paragraph of CALJIC No. 2.90 as revised in 1994:
"Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
Ingram contends the instruction, which has been modified to remove references to "moral evidence" and "moral certainty," does not adequately define reasonable doubt; the phrase "abiding conviction" is insufficient by itself. We disagree.
We have recently held the phrases "moral certainty" and "moral evidence" add nothing to the jury's understanding of reasonable doubt. ( People v. Carroll (1996) 47 Cal.App.4th 892, 895-896.) Moreover, the use of the phrase "abiding conviction" comports with our Supreme Court's determination of an appropriate definition of reasonable doubt in People v. Freeman (1994) 8 Cal.4th 450, 501-505. ( People v. Carroll, supra, 47 Cal.App.4th at pp. 895-896; see also People v. Light (1996) 44 Cal.App.4th 879, 884-889; People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1078.)
According to Ingram, the phrase "abiding conviction" is insufficient to convey the degree of certainty required for proof beyond a reasonable doubt because it makes the burden of proof comparable to the lesser standard of clear and convincing evidence. Ingram is mistaken. In Victor v. Nebraska (1994) 511 U.S. 1, the high court said: "An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government's burden of proof." ( Victor v. Nebraska, supra, 511 U.S. at pp. 14-15.)
DISPOSITION
The conviction of petty theft with a prior is reversed, and the finding that Ingram served a third prior prison term is reversed. We further order the trial court to lift the section 654 stay on the burglary sentence so that the defendant may serve the 25-year-to-life sentence on that conviction. The trial court is directed to amend the abstract of judgment in accordance with these directions and orders, and forward a copy of the amended abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
______________________________ HALLER, J.
WE CONCUR:
_______________________________ BENKE, Acting P.J.
_______________________________ HUFFMAN, J.