Opinion
G062612
05-07-2024
THE PEOPLE, Plaintiff and Respondent, v. ALYSSA NICOLE COOPER, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 23WF0091 Michael A. Leversen, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOETHALS, J.
Alyssa Nicole Cooper was convicted of grand theft, which requires that the value of the property stolen be more than $950. She argues her conviction must be reduced to a petty theft because the trial court erred when it instructed the jury it could include the sales tax that would have been charged on a sale of the stolen merchandise in determining whether its "fair market value" exceeded $950.
Although Cooper acknowledges that People v. Seals (2017) 14 Cal.App.5th 1210 (Seals) requires the jury to include sales tax in determining fair market value, she argues Seals was wrongly decided. Her position relies largely on cases from other jurisdictions.
The Attorney General counters that Cooper forfeited this contention because she not only failed to object to the instruction, she actually advocated in favor of it. We agree. The prosecutor proposed a pinpoint instruction telling the jury it must include the sales tax in determining the value of the stolen merchandise. Cooper objected to the proposed instruction, asserting it was instead appropriate to instruct the jury that it may consider sales tax in determining the value of the merchandise. The trial court agreed with Cooper and under the doctrine of invited error, she cannot complain on appeal that the court did what she proposed.
In her reply brief, Cooper argues that to the extent her counsel "acquiesced in an erroneous jury instruction," it may constitute ineffective assistance of counsel. Such a claim cannot be raised for the first time in reply.
The judgment is affirmed.
FACTS
In January 2023, Cooper entered a Target store and picked up a variety of items from various departments. She then left the store without paying for any of the merchandise. Cooper was detained after she exited the store, and the merchandise in her possession was scanned to determine their prices. The purchase price of the items was $899.19; the sales tax was calculated to be $69.69; the total price was $968.88.
Cooper was charged with grand theft under Penal Code section 487, subdivision (a), which defines grand theft as the theft of money, labor or property "of a value exceeding nine hundred fifty dollars ($950)." Cooper was also charged with one count of possession for sale of a controlled substance (fentanyl) (Health &Saf. Code, § 11351), and one count of possession of a controlled substance (methamphetamine) (Health &Saf. Code, § 11377, subd. (a)). Those counts are not at issue in this appeal.
At trial, the prosecutor asked for a pinpoint jury instruction on the grand theft charge, requesting that the jurors be instructed the fair market value of stolen items must include the sales tax that would have been charged in connection with a sale. In arguing in favor of the proposed instruction, the prosecutor cited Seals.
Cooper's counsel opposed the prosecutor's proposed instruction. Counsel took the position that the issue of whether sales tax should be included in assessing fair market value was "a question for the jury to determine." She explained, "I do think you can tell the jury they can consider sales tax. I don't think we should tell the jury they have to consider sales tax with the pinpoint."
The prosecutor responded that allowing the jury to decide whether sales tax should be included in the value of the stolen items "essentially allows them to nullify." The court ruled that "what I will give is a version of what I have said I would give-and that being sales tax may properly be viewed as part of the price a willing buyer and seller agreed upon."
The jury was so instructed; Cooper did not object.
The prosecutor then argued to the jury the evidence established that Target charges sales tax on all purchases, and that tax is always passed along to the consumer; therefore, the tax must be considered a "part of the price a willing buyer and seller agree [on]," and thus part of the value of the stolen merchandise. Cooper's counsel argued the opposite, emphasizing to the jury that "you may consider tax, but you don't have to." She argued that Target itself had calculated and reported the "value" of the stolen merchandise without including sales tax.
The jury convicted Cooper of grand theft, as well as on the charge of possession of methamphetamine. It acquitted her on the charge of possession for sale of fentanyl but convicted her of the lesser included offense of possession of fentanyl.
The court suspended the imposition of sentence and placed Cooper on two years formal probation with conditions including her serving 360 days in jail.
DISCUSSION
In People v. Avalos (1984) 37 Cal.3d 216, 229 (Avalos), the Supreme Court explained that "[t]he trial court's duty to fully and correctly instruct the jury on the basic principles of law relevant to the issues raised by the evidence in a criminal case is so important that it cannot be nullified by defense counsel's negligent or mistaken failure to object to an erroneous instruction or the failure to request an appropriate instruction."
In this case, however, Cooper's trial counsel explicitly advocated in favor of the instruction Cooper now challenges on appeal. This changes the analysis.
As the Avalos court explained, "counsel had a deliberate tactical purpose" in advocating for the instruction given, and under those circumstances any appellate claim that the instruction was erroneous is forfeited. (Avalos, supra, 37 Cal.3d at p. 229.) More specifically the Court noted that "defense counsel's actions taken as a whole, and particularly his argument at the time of sentencing, show that his lack of objection to the proposed instruction was more than mere unconsidered acquiescence. Counsel had participated in a discussion of the proper response to the jury's request for further instruction. He agreed to the proposed instruction and made no objection to the verdict which followed." (Ibid.)
The record in Avalos "show[ed] that counsel had a deliberate tactical purpose for accepting the instruction and the verdict based upon it," which is that by agreeing to the instruction, "[c]ounsel thereby avoided subjecting defendant to a new trial at which he might possibly have been convicted of a more serious offense than second degree murder." (Avalos, supra, 37 Cal.3d at p. 229.)
If the record reflects counsel made a "conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice." (People v. Cooper (1991) 53 Cal.3d 771, 831.)
The record in this case, like that in Avalos, requires a finding of invited error. Cooper's counsel advocated for the instruction she now claims was erroneous after the prosecutor requested an instruction that required the jury to include sales tax in determining the value of the stolen goods. The prosecutor's instruction would have essentially mandated that Cooper's theft conviction be classified as grand theft. The instruction Cooper's counsel sought gave her the opportunity to persuade the jury not to include the sales tax in its calculations. And that is the argument counsel subsequently made to the jury. There was no inadvertence here.
In her reply brief, Cooper argues there can be no forfeiture here for three reasons. First, she asserts that because "the inclusion of sales tax directly affected the issue of sufficiency of the evidence" to support a conviction of grand theft, her sufficiency of the evidence claim can never be forfeited. But that argument begs the question as it requires us to assume the jury instruction was erroneous-an issue we do not reach in the case of forfeiture.
Second, Cooper argues an appellate court can consider challenges to jury instructions given, even without objection below, if the substantial rights of the defendant were affected. But this case does not involve a failure to object below; Cooper affirmatively advocated in favor of the now-challenged instruction.
Finally, Cooper argues that "to the extent that counsel failed to properly research the law or failed to object to or acquiesced in an erroneous jury instruction, such failures may constitute ineffective assistance of counsel." But, as Cooper seems to acknowledge, the issue of ineffective assistance cannot be raised for the first time in a reply brief. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 ["It is rarely appropriate to resolve an ineffective assistance claim on direct appeal [citation]; we certainly will not do so where, as here, the claim is omitted from the opening brief and thus waived"].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J., MOTOIKE, J.