Opinion
G050915
06-10-2015
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS RICHARD JACOBSON, Defendant and Appellant.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 . (Super. Ct. No. FBA1100211) OPINION Appeal from a judgment of the Superior Court of San Bernardino County, Victor R. Stull, Judge. Reversed. Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found defendant Douglas Richard Jacobson guilty of embezzlement. (Pen. Code, § 504.) The trial court placed defendant on probation, on condition he serve 365 days in the county jail and imposed a restitution fine of $308 and ordered victim restitution of $81,382.06.
In his appeal, defendant raises five issues: (1) The court erred in denying his motion to suppress evidence; (2) the court erred in admitting evidence of uncharged acts; (3) the court erred in failing to give a unanimity instruction; (4) the court erred in failing to instruct on the effect of defendant's voluntary return of some of the victim's property; and (5) the court abused its discretion in making the victim restitution order.
We conclude the court did not err in denying the motion to suppress, but hold it committed reversible error in failing to give a unanimity instruction. Our remand for a new trial renders it unnecessary for us to address the three other claims of error.
FACTS
David Parker operated several companies, including Pelican Aviation, a company formed to operate an airplane for Parker. Starting in 2005, defendant was employed by Pelican Aviation as a pilot. He was paid through another entity, which in turn would bill Parker. First, this was TAG Aviation, later Rutter International.
Parker decided to build a hangar for his airplane in Michigan; the hangar was built with three bedrooms for the pilots. Defendant played a major role in designing the building and equipping this facility. He used a credit card issued by Pelican Aviation to purchase the equipment. The equipment included several computers, computer accoutrements, linens, silverware, construction tools, televisions, DirecTV receivers, remote controls, and office equipment. Also using the Pelican Aviation credit card, defendant purchased two commercial ice machines, though Parker had only authorized the purchase of one. At a later time, defendant arranged to have one of the ice machines shipped from the Michigan hangar to his own trailer in California.
When Parker purchased a new airplane in 2007, he authorized defendant to participate in a training course for the airplane. But in addition to that course, defendant also trained to fly a different plane - a three-week course for which Parker was charged $9,600. When purchasing tires for Parker's plane, defendant obtained a $10,000 "commission" from the seller and told the latter to add this amount to Parker's bill. Without Parker's knowledge, defendant also used the plane to ferry a group from Long Beach to Needles, California for a three-day weekend party. Parker was billed for all expenses. When Parker sold the Michigan hangar, defendant loaded tools from the hangar onto Parker's plane and flew it to Long Beach. Upon arriving in Long Beach, defendant placed the tools in his own car.
At some point, Parker fired defendant. He then discovered many items were missing from the Michigan facility.
Parker called the San Bernardino Sheriff's Department to report the theft of the ice maker. Deputy Sheriff Robert Cunningham went to the trailer owned by defendant. He saw a large commercial ice maker at the side of the trailer. Cunningham walked onto the trailer's carport, past a chain, to check the serial number on the ice maker. The serial number matched the serial number on the stolen machine. Cunningham then arranged to load the ice maker and took it to the sheriff's station.
Three days later, after obtaining a search warrant, Cunningham returned to the trailer and seized a variety of items, including, tools found in a shed outside the trailer and computer equipment discovered in defendant's mother's vehicle. These items were returned to Parker. A week or so later, Cunningham interviewed defendant at another address. Defendant led Cunningham to the garage where the officer found a stack of items covered by a sheet; the items included alcoholic beverages, computers, and a printer. Parker identified the items as his and they were returned to him.
DISCUSSION
1. Denial of the Motion to Suppress
As we noted, after being advised of the alleged theft, Cunningham went to the trailer owned by defendant. While still on a public roadway, he saw a large commercial ice maker at the side of the trailer. Cunningham then walked onto the trailer's carport, past a chain, to check the serial number on the ice maker. The serial number matched the serial number on the stolen machine. Cunningham then arranged to load the ice maker and took it to the sheriff's station.
Defendant contends the court erred in failing to find this search and seizure should have been excluded as violating the Fourteenth Amendment. We disagree.
The scope of the Fourth Amendment prohibition on unreasonable searches is delineated by a "reasonable expectation of privacy." (Katz v. United States (1967) 389 U.S. 347, 361 [88 S.Ct. 507, 19 L.Ed.2d 576] (conc. opn. of Harlan, J.).) In his concurring opinion Justice Harlan stated: "My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" (Id. at p. 361.)
Cunningham first observed the ice machine before entering the premises; he saw it while still on a public road. But the prohibition on unreasonable searches and seizures applies to the curtilage as well as the interior of the house. (Mapp v. Ohio (1961) 367 U.S. 643, 653-660 [81 S.Ct. 1684, 6 L.Ed.2d 1081]; United States v. Dunn (1987) 480 U.S. 294, 300 [107 S.Ct. 1134, 94 L.Ed.2d 326].) In Minnesota v. Dickerson (1993) 508 U.S. 366, 375 [113 S.Ct. 2130, 124 L.Ed.2d 334], the United States Supreme Court stated "if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant." Thus, the question is whether Cunningham violated defendant's Fourth Amendment rights when he entered upon the trailer's carport to view the ice machine's serial number.
We find the following cases relevant to the resolution of this issue. In Lorenzana v. Superior Court (1973) 9 Cal.3d 626, the California Supreme Court set aside the denial of motions to suppress evidence where police officers observed narcotics activity after entering the side yard of a house opposite the front door and peering through a gap in the blinds covering a window. The Court acknowledged the foregoing rule "that observations of things in plain sight made from a place where a police officer has a right to be do not amount to a search in the constitutional sense." (Id. at p. 634.) But it held "[t]he record reveals no substantial evidence supporting a conclusion that a normal access route to either the Lorenzana home or the house behind it on the same lot would lead to a point within a scant six inches from the window through which the officers made their observations; thus, those observations were made from a position where the officers had no right to be. . . . [¶] The fact that apertures existed in the window, so that an unlawfully intruding individual so motivated could spy into the residence, does not dispel the reasonableness of the occupants' expectation of privacy. [Citations.] To the contrary, the facts of this case demonstrate that by drawing the window shade petitioner Lorenzana exhibited a reasonable expectation to be free from surveillance conducted from a vantage point in the surrounding property not open to public or common use." (Id. at p. 636.)
The Supreme Court reached a different conclusion in People v. Edelbacher (1989) 47 Cal.3d 983. There the police obtained photographs of shoe prints similar to those found at the scene of a murder that an officer observed on the porch, front yard, and driveway of both the defendant's residence and that of his parents. A police officer had gone to the homes looking for the defendant and to speak with the parents. He noticed the shoe prints as he began to leave the premises. The Supreme Court held the police did not violate the defendant's Fourth Amendment rights in obtaining the shoe track evidence. "In determining whether a warrantless government surveillance is proscribed by the Fourth Amendment, the inquiry is 'whether the government intruded unreasonably on an expectation of privacy which society is prepared to recognize as valid.' [Citations.] The determining factor is whether common habits in the use of property result in a reasonable expectation of privacy in a given situation. [Citation.] 'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' [Citation.] [¶] Here the evidence in question was observed by Officer Johansen while he was looking for defendant at the residences of defendant and his parents. The tracks were outside in the front porch, driveway, and front yard portions of the residences. The tracks were apparently visible on the normal route used by visitors approaching the front doors of the residences and there is no indication of solid fencing or visible efforts to establish a zone of privacy. Accordingly, observing and photographing the shoe tracks did not violate the Fourth Amendment." (Id. at p. 1015.)
The facts of this case are analogous to the facts presented in Edelbacher. Cunningham had gone to the trailer in response to Parker's report that defendant had stolen an ice maker. Upon his arrival, he saw a commercial ice maker that was accessible by way of the carport. "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in[t]o evidence." (Harris v. United States (1968) 390 U.S. 234, 236 [88 S.Ct. 992, 19 L.Ed.2d 1067].) Placing the machine outside the mobile home, visible from the public roadway, demonstrated defendant failed to exhibit an expectation of privacy as to it. The fact Cunningham walked along the carport past a chain to examine the machine's serial number, should not affect this result. (In re Gregory S. (1980) 112 Cal.App.3d 764, 775 [no violation of Fourth Amendment where officer "entered and contacted appellant on the driveway approximately 20 feet from the street"]; People v. Mendoza (1981) 122 Cal.App.3d Supp. 12, 14 (lead opn. of Jones, J.) ["Fencing around the front yard of a residence is a common situation," which has "obvious purposes other than excluding the public," and "[i]n the absence of a locked gate, a high solid fence blocking the front yard from view, a written notice to keep out . . . or perhaps a doorbell at the front gate, anyone having reason to talk to the residents would be expected to open the front gate, walk up to the house and knock on the door"].)
Once Cunningham saw the ice machine's serial number he had a reasonable basis for believing it was the item he had been told was stolen from Parker. We therefore agree the court did not err in denying the motion to suppress.
2. Failure to Instruct on the Unanimity Requirement
Defendant claims he was prejudiced by the trial court's failure to give a unanimity instruction. He argues "the jury was never told which of several claimed criminal acts constituted the charged offense. No election was made. No unanimity instruction was given." The Attorney General contends the instruction was not required here, insisting the defalcations constituted a continuous course of conduct. We agree with defendant the trial court prejudicially erred in failing to give a unanimity instruction.
As defendant points out, "[f]ew constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused." (Dunn v. United States (1979) 442 U.S. 100, 106 [99 S.Ct. 2190, 60 L.Ed.2d 743].) And "[i]n a criminal case, a jury verdict must be unanimous." (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
Here, the record is not clear as to which of the defalcations were charged and which were introduced into evidence under Evidence Code section 1101, subdivision (b). Before the trial, defendant's lawyer moved the court to exclude items that had not been introduced at the preliminary hearing. The court denied the request, noting the evidence presented at a preliminary hearing is "generally . . . bare bones" because "there is absolutely no need to present all evidence." It also ruled evidence of items not covered by the charges would be "admissible [as] evidence of intent and knowledge." (Evid. Code, § 1101, subd. (b).) The court concluded there was adequate notice to defendant of the existence of this evidence, particularly through the police reports.
The only statement we have discovered endeavoring to identify the defalcations constituting the property allegedly embezzled as opposed to that introduced to show defendant's knowledge and intent appears in the prosecutor's closing argument: "There is a plane ride, because it landed in Needles. There is the ice maker. It was found in Needles. There [are] the tools that were recovered in Needles that both came from the Michigan hang[a]r and that were purchased on the Pelican card from Sears. There [are] the expensive technical remotes that were purchased on a Pelican card that were found in Needles. There is the DirecTV remotes that were found in Needles, and the receivers, which had been in Needles, based on the dust pattern, and ultimately were recovered in Moreno Valley. There was a desktop computer system[] . . . recovered in Needles. There is the Pelican promotional products . . . found in . . . in Needles and in boxes in a pile that [d]efendant['s] . . . mother pointed out. [¶] The other crimes that aren't in Needles are introduced for purposes of showing knowledge and intent in terms of how [defendant] committed this crime and [his] knowledge that [he was] doing it and [his] intent to do it. It included the other items that were found in the Moreno Valley house that can't be traced [to] San Bernardino . . ., items that were found from the plane or Michigan but never made it [to] San Bernardino that we can establish."
Considering the prosecutor's statement, it appears there were 8 to 10 items included in the charged crime. But these items varied in both kind and in how defendant allegedly obtained possession. Further, defendant's lawyer argued, without objection or attempted correction: "This case is very, very simple. It's about an ice machine. It's about DirecTV receivers. It's about a trip to Needles. That's it. The rest of it is stuff that the prosecution has put before you under this theory called charged offenses, in the hope that you will look at it as enough of it is thrown at the wall something is going to stick, so we can try to pretend Mr. Jacobson did enough other things that we didn't charge him with maybe you'll believe that he did do the things he is charged with."
Also, defendant offered different defenses with respect to the various items allegedly stolen. As to the tools, he argued they were not properly identified as being Parker's property. He claimed the promotional materials were given to him to distribute to customers. Defendant also reminded the jury that Parker had acknowledged he might have given some items to defendant. Finally, defendant also argued he was authorized by Parker to move items to his own house.
The Attorney General contends that there is no duty to instruct on unanimity because the "offense[] constitutes a continuous course of conduct." (People v. Madden (1981) 116 Cal.App.3d 212, 218; see People v. Maury (2003) 30 Cal.4th 342, 423.) But where, as here, "the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Diedrich (1982) 31 Cal.3d 263, 281.) In addition, a "unanimity instruction must be given sua sponte, even in the absence of a defense request to give the instruction." (People v. Hernandez (2013) 217 Cal.App.4th 559, 569.) Here, there was neither an election nor a unanimity instruction.
Under these circumstances, the trial court had a duty to instruct the jury it needed to agree on which act or acts supported the embezzlement charge. The fact that numerous items were presented to the jury without clear guidance as to which of them constituted the property defendant is charged with fraudulently converting and which items were introduced to show his knowledge and intent, made this omission all the more serious. We therefore disagree with the Attorney General it was unnecessary to instruct the jury on the requirement for unanimity because there was but a single defense.
The next question is whether the error was prejudicial. We conclude the answer is yes. This is not a case where the jury's verdict implies that it did not believe the only defense offered. People v. Diedrich, supra, 31 Cal.3d 263 presents an analogous situation. There the defendant was charged in one count with bribery arising from several events that occurred over three to four months. At trial, he presented different defenses to the offense. While acknowledging the existence of the continuous conduct exception (id. at pp. 281-282), the Supreme Court held the trial court committed reversible error in failing to give a unanimity instruction: "This was not a case where the jury's verdict implies it did not believe the only defense offered. . . . As far as the Jolly Fox offer is concerned, it consisted of a simple denial. The Remington transactions were 'explained.' Having in mind that the proof of the Jolly Fox offer depended, essentially, on the testimony of a single immunized witness and that the proof of bribery via the Remington transaction was somewhat circumstantial, we feel bound to conclude that the error was prejudicial." (Id. at p. 283.) Thus, the fact the factual bases for the charge differed in kind and were subject to different defenses imposed the duty to give the unanimity instruction. The same is true here.
As noted, the duty to give the unanimity instruction rested on the court whether requested or not. (People v. Leonard (2014) 228 Cal.App.4th 465, 491; People v. Mayer (2003) 108 Cal.App.4th 403, 418.) The failure to give it here was prejudicial error.
DISPOSITION
The judgment is reversed.
RYLAARSDAM, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.