Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC062081
Haerle, J.
I. INTRODUCTION
After a two-day jury trial in February 2007, appellant was convicted of six felony counts, including two each of second degree burglary, grand theft, and forgery. On appeal, appellant argues that (1) the principal witness testifying against him was an accomplice as a matter of law, (2) the jury was thus misinstructed on this subject, and (3) this misinstruction constituted prejudicial error. We disagree and hence affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 31, 2005, an executive of the United Cerebral Palsy Association (UCPA) left her car parked in Pacifica; inside the car were nine blank UCPA checks already co-signed by its President. The car was stolen and, when found, the nine checks were missing.
Thomas Bechelli, a general contractor and neighbor and friend of appellant, found several of the blank checks “in the street by a golf course in Pacifica.” He kept three of them and threw the rest away.
Sometime between July 2005 and January 2006, Bechelli gave appellant two of the three UCPA checks; appellant’s name was typed on the payee line of those two checks. Appellant, a plumber who sometimes worked for Bechelli, agreed to cash them and give “30 or 40 percent” of the proceeds to Bechelli. The latter was using methamphetamine at the time and, as a result, claimed he suffered from memory loss.
On January 13, 2006, appellant and Bechelli went to the Daly City Moneymart to cash one of the checks, now made out to appellant in the amount of $1,988.53, and on which Bechelli had written “plumbing rough in” on the memo portion. Bechelli stayed in the car while appellant went in to attempt to cash the check. They had arranged that, if there was a problem cashing the check, appellant should give the cashier Bechelli’s cell phone number. Exactly that happened, and Moneymart cashier Cindy Duran, to whom appellant had presented UCPA check No. 5107 made out to him in the amount noted above, called the cell phone number appellant had provided her. Bechelli answered and told her that the check was good. Duran then got the check approved by her supervisor, and gave appellant the $1,988.53 minus a three percent fee. Appellant gave Bechelli the cash and got back $400 from him.
Two days later, on January 15, 2006, almost exactly the same process was repeated at the Daly City Moneymart. Appellant cashed UCPA check No. 5108 in the same amount, and received the same amount minus the same three percent fee, albeit this time dealing with different cashiers. But there was, this time, no call to Bechelli’s cell phone because the Moneymart cashiers had appellant’s name on a “verified” list on their computer. According to appellant’s testimony, Bechelli was not in the car outside of the Moneymart facility on that occasion. Again, appellant gave Bechelli the cash and got back $400 from him.
In September 2006, Bechelli typed his name onto the payee line of the third of the UCPA checks and cashed it himself; he was subsequently prosecuted for check fraud and forgery and pled guilty to those charges.
On September 25, 2006, an information was filed in San Mateo Superior Court charging appellant with two counts of second-degree burglary (Pen. Code, § 460, subd. (b)), two counts of grand theft (§ 487, subd. (a)), and two counts of forgery. (§ 470, subd. (d).) Appellant pled not guilty and a two-day jury trial commenced, as noted, in February 2007. The jury found appellant guilty on all counts charged.
All statutory references are to the Penal Code.
On April 12, 2007, the court suspended imposition of sentence and placed appellant on probation for a term of three years. Appellant filed a timely notice of appeal.
III. DISCUSSION
Appellant’s principal claim is that the court erred in instructing the jury with CALCRIM No. 334 because, he asserts, Bechelli was an accomplice as a matter of law, and thus it was prejudicial error to allow the jury to determine, as a factual question, whether he was such an accomplice and, if so, whether there was sufficient corroborating evidence.
The applicable statute on this issue is section 1111, which provides: “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
We disagree with appellant’s “matter of law” contention for several reasons. The first and most obvious reason is that, although the trial court did not specifically characterize Bechelli as an “accomplice as a matter of law,” it did give––as stipulated to by both the prosecution and the defense––CALCRIM No. 301, which read as given to the jury: “ Except for the testimony of Thomas Bechelli, which requires supporting evidence, the testimony of only one witness can prove any fact.” This instruction, and it alone, was sufficient to satisfy the contention raised by appellant.
But, he argues, this instruction was undermined by the subsequent giving of CALCRIM No. 334, which left the jury the determination of whether Bechelli was an accomplice in fact. However, and as our Supreme Court has made clear many times, whether or not a witness or accessory to a charged crime is an accomplice is most usually a factual question to be decided by the jury. Thus, in one of its most recent statement of the rule, the court stated: “ ‘Whether a person is an accomplice within the meaning of section 1111 presents a factual question for the jury “unless the evidence permits only a single inference.” [Citation.] Thus, a court can decide as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witness’s criminal culpability are “clear and undisputed.” [Citations.]’ ” (People v. Williams (1997) 16 Cal.4th 635, 679; see also, People v. Avila (2006) 38 Cal.4th 491, 564-567; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 105; People v. Fauber (1992) 2 Cal.4th 792, 833-834 (Fauber); People v. Verlinde (2002) 100 Cal.App.4th 1146, 1160-1161.) Indeed, our research has disclosed almost no cases where an appellate court has ruled that the trial court erred in not finding a testifying witness to be an accomplice as a matter of law and, rather, leaving that issue to the jury.
Appellant cites only People v. Robinson (1964) 61 Cal.2d 373, 394-396, as an example of a situation where a trial court erred in not instructing a jury that a person was an accomplice as a matter of law. But there, the court ruled that the confessions of three individuals made them accomplices as a matter of law. Further, there the trial court committed several other instructional errors requiring reversal. Finally, nothing in the much earlier holding in Robinson detracts from the much more recent statement of the applicable rule quoted above from Williams.
This result is particularly apt here where (1) in the trial court, appellant’s counsel never requested a finding that Bechelli was an “accomplice as a matter of law” and, in fact, expressly stipulated to the instructions that were in fact given, and (2) Bechelli could not have been an accomplice to the crime of second-degree burglary, with which appellant was charged and convicted.
We will briefly elaborate on these two points. First of all, at trial, the defense theory was that the entire check-cashing plot was the idea and undertaking of Bechelli. For example, his trial counsel argued regarding Bechelli’s role in the whole business: “The reason that [Bechelli] did that was because he needed money, and he knew -- his testimony here in court was that he knew it was a risky venture to go into a check-cashing place, use your own identity and cash a check. It was risky because it is too easy to get caught. [¶] So, how did he avoid that? He had someone else do it for him. He had someone else go in and find out, if I do this, will it work? Will I get the money? And who does he get? He gets his friend, Mr. Koryak. He gives him a story to explain why he needs him to cash the checks. A story that Mr. Koryak believed. A story that, if believed, would give Mr. Koryak the right to legitimately go in and cash the check. He believed his friend. He took what he said at face value and believed it. He was a friend to him. Why would he lie? And he did that.”
In short, per appellant’s trial counsel, Bechelli was not merely an accomplice, he was the mastermind of the entire operation. And this continues to be appellant’s argument. In one of his briefs to this court, his appellate counsel argues: “. . . Mr. Koryak’s defense is premised on the jury finding that Bechelli was guilty of planning, instigating, promoting and facilitating the offense.”
Consistently with this theme, trial defense counsel did not request an “accomplice as a matter of law” instruction. To the contrary, he expressly stipulated that “all the instructions that were given were agreed upon,” a stipulation encompassing both CALCRIM Nos. 301 and 334. On appeal, appellant relies on the principle stated in People v. Maurer (1995) 32 Cal.App.4th 1121 that, for the doctrine of invited error to apply regarding a stipulated instruction, “it must be clear from the record that counsel had a deliberate tactical purpose in suggesting or acceding to an instruction, and did not act simply out of ignorance or mistake.” (Id. at p. 1127.) But defense counsel clearly did not want the court telling the jury that, as a matter of law, Bechelli was only an “accomplice” in the crimes for which appellant was being tried. As just noted, that counsel’s theory was, throughout, that he was the mastermind of the whole business. Having the jury told that Bechelli was merely an “accomplice” obviously and seriously detracted from that strategy.
The law is also clear that, in order to be an accomplice “as a matter of law,” an individual must be chargeable with the same crime or crimes with which the defendant is charged. This much is clear from the language of section 1111 that an accomplice is “one who is liable to prosecution for the identical offense charged against the defendant . . . .” (§ 1111, emphasis supplied.) The cases make clear that this means the alleged accomplice must participate as a principal in the offenses for which the defendant is charged and of which he is convicted. (See, e.g., Fauber, supra, 2 Cal.4th at pp. 833-834; People v. Garceau (1993) 6 Cal.4th 140, 183-184, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) And section 31 makes clear that persons who “aid and abet in its commission . . . are principals in any crime so committed.” (§ 31.) In this case, as noted, appellant was charged with two counts of second degree burglary and convicted of both counts. However, Bechelli could not have been charged as a principal in those counts because he was not a “person who enters any . . . building . . . with intent to commit grand or petit larceny or any felony” on January 13 and 15, 2006. (§ 459, emphasis supplied.) Thus, at least as regards the two burglary counts, an instruction that Bechelli was an accomplice as a matter of law would have been error.
However, even assuming that this is one of those extremely rare cases in which the trial court should have instructed the jury that Bechelli was an accomplice as a matter of law, any such error is harmless as there is clearly adequate corroborating evidence of appellant’s guilt. Principally, the jury could well have found the testimony of appellant himself to border on the incredible. For example, appellant testified that (1) Bechelli promised to, and did, give him a total of $800 ($400 per check) for cashing the two checks, (2) appellant had, in fact, never done any work for UCPA, (3) when Bechelli gave him the two checks (at an IHOP diner in Millbrae earlier on January 13, 2006), he was not suspicious of them because he “wasn’t really checking for authenticity,” but (4) he did find suspicious the fact the Bechelli had no identification he could use to cash checks himself, (5) although Bechelli was not, in fact, his superior at UCPA because “I didn’t work there,” he nonetheless gave the Moneymart cashier Bechelli’s name and cell phone number and described him to Moneymart as “a contact” for UCPA, and (6) he cashed the first check at the Daly City Moneymart on a Friday evening at around 7 or 8 p.m.
We conclude that this testimony––given to the jury by appellant personally––was more than sufficient corroborating evidence of the testimony of Bechelli.
Additionally, the testimony of the Moneymart employees who cashed the checks on January 13 and 15, 2006, amply supported the prosecution’s theory and Bechelli’s testimony. For example, regarding the January 13 check, Duran, the Moneymart cashier with whom appellant dealt, noted that appellant came into the building after the UCPA offices had closed, told her that Bechelli was his supervisor, and gave her Bechelli’s cell phone number. Similarly, the Moneymart cashier with whom appellant dealt two days later was also told that Bechelli was his supervisor, and that the checks were in payment for work he had personally done for UCPA. Appellant also told the same cashier that he would be coming back later with similar checks because he had not yet received full payment for his work at UCPA.
Under the circumstances, even assuming the jury should have been instructed that Bechelli was an accomplice as a matter of law, there was more than adequate corroborating evidence in the record––particularly, we stress again, appellant’s testimony––to support the jury’s finding of guilt. In short, the combination of the substantial corroborating testimony and the instructions given the jury combine to make any failure to instruct that Bechelli was an accomplice as a matter of law harmless. (See, e.g., People v. Frye (1998) 18 Cal.4th 894, 966 and cases cited therein.)
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.