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People v. Hooper

California Court of Appeals, First District, Fifth Division
Mar 7, 2008
No. A115208 (Cal. Ct. App. Mar. 7, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LEE HOOPER, Defendant and Appellant. A115208 California Court of Appeal, First District, Fifth Division March 7, 2008

NOT TO BE PUBLISHED

Del Norte County Super. Ct. No. CR-F-05-10018

SIMONS, J.

On April 12, 2006, the Del Norte County District Attorney filed an information charging appellant Christopher Lee Hooper with receiving stolen property (Pen. Code, § 496, subd. (a)) (count 1) and grand theft (Pen. Code, § 487, subd. (a)) (count 2). Appellant entered a plea of not guilty; and, on July 18, the jury found appellant guilty of both counts. On August 31, the court suspended imposition of sentence on count 2 and placed appellant on three years’ formal probation on the condition that he serve 180 days in county jail. Appellant challenges that conviction, contending the trial court erred by failing to correctly instruct on aiding and abetting. We reverse and remand for a new trial.

The sentence on count 1 was stayed pending successful completion of the sentence on count 2.

FACTUAL BACKGROUND

Prosecution Case

Robert Kissinger was a family friend of Marvin Schaff and had worked for Schaff for approximately four years. Around April or May 2004, Kissinger helped Schaff unload 100 new crab pots at a storage area located on Elk Valley Road. The storage area contained approximately 350 crab pots. After Schaff died in November 2004, Cynthia Landrith, Schaff’s girlfriend, became caretaker of these crab pots.

Kissinger had known appellant for about four years. Appellant approached Kissinger and asked Kissinger if he knew where to get 23-inch sport crab pots. Kissinger did not, and appellant then asked if Kissinger knew where to find any other pots. When Kissinger responded yes, appellant told Kissinger he knew somebody who wished to buy the pots.

About a week and one-half later, Kissinger took appellant to the crab pot storage location, where the pots were kept outside underneath a tarp. Kissinger and appellant took 10 of the newer crab pots and loaded them into the back of a pickup truck. They then drove to A Street to meet the potential buyer. The potential buyer asked if the pots were stolen and Kissinger said no, but the potential buyer said the pots were too big for sport fishing and no transaction occurred.

Kissinger and appellant then drove to appellant’s house and stored the pots there. Appellant told Kissinger that when he sold the crab pots he would give Kissinger half the money.

Steven McGhee, a commercial fisherman, heard through a mutual friend that appellant had crab pots for sale. McGhee contacted appellant and then went to appellant’s house, where appellant showed him the crab pots. McGhee thought the pots were new because they looked as though they had never been in water, and he asked appellant if the pots were stolen. Appellant denied the pots were stolen and explained he helped build some of the crab pots and had obtained the pots from someone who owed him money. McGhee and appellant negotiated a price of $950, and appellant received a $500 check, with the understanding McGhee would pay the balance within a couple of weeks. McGhee took the 10 pots and brought them to a dock where he stored them with the rest of his crab gear.

A few local fisherman contacted Landrith to find out if she was missing any crab pots. Landrith had the Elk Valley Road storage area checked and, based on what she learned, she contacted the sheriff’s office and reported the theft of the pots to Deputy Wiley.

After receiving some information linking appellant to the crime, Wiley contacted him at his home on December 4, 2005, and questioned him about the theft. Appellant told Wiley he had recently sold 10 crab pots, six of which he had built from scratch, while the remaining four he had refurbished. Wiley ruled out appellant as a suspect.

Appellant then visited McGhee. Appellant told McGhee not to worry about the $450 balance because he had learned the crab pots had been stolen. Appellant also mentioned the name “Cynde”. McGhee testified it “was ironic” that, earlier, he had been negotiating with Landrith to buy Schaff’s boat and crab pots. McGhee figured out the pots he purchased from appellant belonged to Landrith and returned them to her at the storage area on Elk Valley Road. McGhee contacted the Sheriff’s Department.

Subsequent to McGhee’s contact, Wiley returned to appellant’s house and told him that his initial statement to Wiley did not make sense. Appellant explained he had been on pain medication during the first contact, and then told Wiley that Kissinger had given him the crab pots to sell in order to settle a debt.

Wiley arrested appellant for receiving stolen property and transported him to the Del Norte County Jail. After Wiley read appellant his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), appellant waived these rights and agreed to speak with Wiley. Appellant told Wiley that “he had received the pots with . . . Kissinger” and then went directly to an address on A Street to sell them. When this transaction failed, he brought the pots to his residence. During the interview, appellant indicated he had built the pots three weeks prior to trying to sell them.

Wiley then contacted Kissinger, who admitted stealing the pots. Kissinger was arrested and told the police that both he and appellant were involved in the theft. Kissinger eventually pled guilty to a felony, which was subsequently reduced by the court to a misdemeanor. Kissinger also testified that in exchange for his testimony, he received three years’ probation, 21 days of home detention, plus a fine of $800.

Defense Case

Richard Cain, retired, had worked for the Crescent City Police Department as a reserve officer for four years. Cain knew appellant for about three years and thought that appellant was nice, but very naïve. Appellant had called Cain and told him about a friend who made crab pots and wanted to sell some. Cain told appellant he was interested in some sport pots.

Appellant and Kissinger arrived at Cain’s home with the crab pots in the back of a pickup truck; Cain looked at the pots and told them the pots were not what he was looking for. Cain asked Kissinger why he was selling them for only $20. Kissinger explained he had made the pots for about $18 or $20 and just wanted to recover his money. Cain asked Kissinger if they were stolen and Kissinger replied that they were not. Kissinger appeared to Cain to be under the influence of some substance because he was fidgeting, talking fast and perspiring. Appellant did not appear to Cain to be perspiring.

Robert Bumby, appellant’s girlfriend’s father, knew appellant for about two years. Bumby described appellant as naïve and gullible. Bumby testified that in November or December 2005, appellant and Kissinger arrived at his house and stacked crab pots in the yard. Appellant and Kissinger said they had tried to sell the pots to someone, but the pots were too big for that person’s boat. Appellant later sold the pots and gave Bumby a $500 check from McGhee, made payable to Bumby, which Bumby cashed for appellant. Appellant subsequently approached Bumby and told him he had learned the pots were stolen and asked Bumby what to do. Bumby advised appellant to speak with the buyer and straighten things out. Bumby testified appellant then walked down the street towards the buyer’s house.

John Hooper, appellant’s father, was with appellant in a pharmacy in December 2005 and overheard a conversation between appellant and an unidentified individual. The individual approached appellant and told him the pots were stolen. Appellant told the individual that he and another guy, who had a key to “the building,” loaded the pots onto a truck and drove them to appellant’s house and left them in the yard.

Appellant testified he was 20 years old and had not graduated from high school. Appellant knew Kissinger for about four or five years. Appellant stated he helped construct additions to Kissinger’s mother’s house and that Kissinger had not paid him for that work.

Appellant described the interior of a gear shed where he welded rings to make crab pots for Kissinger. Kissinger told appellant that the crab pots being constructed would be worth more than the amount he owed appellant and he would give the pots to appellant as repayment.

In November 2005, appellant wanted money to buy his girlfriend a Christmas present so he contacted Kissinger to see if Kissinger could settle his debt. Kissinger said the crab pots were ready and they could pick them up. Appellant told Kissinger he knew of a potential buyer. Kissinger then borrowed a friend’s pickup truck and they returned to the storage area. Kissinger cut some cord around the stack of pots, loaded them onto the truck and the two men drove over to Cain’s house. Kissinger told Cain that the pots belonged to Kissinger. Appellant believed these were the same pots for which he had previously welded rings.

After Cain told them he could not use the crab pots, appellant and Kissinger dropped off the crab pots at appellant’s house. Kissinger told appellant, “They’re yours,” and appellant assumed this was to settle the debt.

Appellant found out the pots were stolen when a friend approached him at a pharmacy and told him. Appellant asked this friend to contact “Cynde” so that appellant could return the pots to her. Appellant then went home, told Bumby the pots were stolen and asked him for advice. Bumby said, “Well, you need to clear it up.” Appellant went to McGhee’s house and said, “The pots are stolen. I’ll give you your money back; you just need to give the lady her pots back.” A week later appellant was arrested.

On cross-examination, appellant stated he did not repay the money because he did not want to risk going to jail over something he did not do. Appellant denied telling Wiley that he built six of the crab pots from scratch. Appellant testified he told Wiley he sold 10 crab pots, and Wiley never asked where those crab pots came from.

DISCUSSION

The court instructed the jury with CALCRIM No. 400, which provides: “A person may be guilty of a crime in two ways. One, he may have directly committed the crime. Two, he may have aided and abetted someone else who committed the crime. In these instructions I will call that other person the ‘perpetrator.’ A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it.” There is no indication in the record which, if either, party requested the instruction.

Appellant argues that having given CALCRIM No. 400, the court erred by failing to provide the definition of the term “aided and abetted” set forth in CALCRIM No. 401, which states in relevant part: “Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” It goes on to state “[. . . the fact that a person is present at the scene of a crime . . . does not, by itself, make him or her an aider and abettor.]” (Judicial Council of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 401.) We agree the court erred.

Aiding and abetting has a technical legal definition and required the clarification provided in CALCRIM No. 401. The California Supreme Court has held an aider and abettor is a person who, “acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.) Thus the legal definition of aiding and abetting significantly limits the common understanding of those terms; the legal definition adds to the act of assisting the perpetrator, the requirements of knowledge of the perpetrator’s unlawful purpose and an intent to promote the crime. Therefore, the trial court had a sua sponte duty to provide CALCRIM No. 401 or its equivalent in addition to instructing the jury with CALCRIM No. 400.

Appellant and respondent agree that if the trial court committed instructional error, then the judgment must be reversed unless it can be said that the instructional error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Flood (1998) 18 Cal.4th 470, 480, 492, 502-503.) Failure to properly instruct on all elements necessary for aiding and abetting is assessed under the harmless beyond a reasonable doubt standard. (People v. Hardy (1992) 2 Cal.4th 86, 185-186; People v. Dyer (1988) 45 Cal.3d 26, 64.)

We conclude the error was prejudicial. The entire defense was built around appellant’s state of mind. He did not deny being present when the crab pots were taken from their storage site or assisting in their removal. He claimed, however, he believed that Kissinger gave him the crab pots to satisfy a preexisting debt and insisted he had not known the pots were stolen until sometime later. But nothing in CALCRIM No. 400 required the jury to find anything more than that appellant was present and assisted in the property’s removal.

Respondent makes two arguments in support of its position that the error was harmless. First it contends that the jury was properly instructed on the crime of grand theft, including the requirement that appellant commit the requisite taking with the specific intent to permanently deprive the owner of her property. But this argument ignores the statement in CALCRIM No. 400 that the crime could be committed in two ways: appellant may directly commit the crime, or he may aid and abet someone else who directly commits the crime. It is reasonably possible that the jury would understand that a person who simply assists another person, who steals property, is guilty of grand theft, so long as the other person engaged in all the elements of that offense. Respondent also argues that the evidence appellant was a direct perpetrator of grand theft was “overwhelming,” while the contrary defense evidence was “weak.” While true that, overall, the strength of the evidence favored the prosecution theory that appellant was a thief, not an aider and abettor, we cannot say beyond a reasonable doubt that the error was harmless.

DISPOSITION

The judgment is reversed and the matter remanded for a new trial.

We concur. JONES, P.J., NEEDHAM, J.


Summaries of

People v. Hooper

California Court of Appeals, First District, Fifth Division
Mar 7, 2008
No. A115208 (Cal. Ct. App. Mar. 7, 2008)
Case details for

People v. Hooper

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LEE HOOPER, Defendant…

Court:California Court of Appeals, First District, Fifth Division

Date published: Mar 7, 2008

Citations

No. A115208 (Cal. Ct. App. Mar. 7, 2008)