P. v. Moelk

Filed 6/13/08 P. v. Moelk CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Timothy Allen Moelk appeals a judgment entered upon a jury verdict finding him guilty of receiving stolen property. He contends the trial court erred in denying his motion to sever his trial from that of his co-defendant, and that it committed instructional error. We affirm.

I. BACKGROUND

On October 13, 2005, at about 10:00 in the evening, Theodore Postolaki and Jerome Bautista of the Vallejo Police Department were driving a police car on Mare Island. They saw a car with an open trunk. A four- to five-foot object that looked like a large fan was sticking out of the back of the car, not tied down. The officers stopped the car, which Moelk was driving and in which Richard Murphy was the passenger.

Postolaki asked Moelk what the object was, and Moelk said he believed it was a fan. Postolaki asked whether Moelk had permission to have the fan, and defendant said that he had found it and thought it had been abandoned. Postolaki looked at the machine, and saw that it looked relatively new, with no dust or weathering, and nothing to indicate it had been left outside.[1]

Postolaki advised Moelk of his Miranda rights, then asked him where he had gotten the machine. Moelk directed Postolaki to a location off Pintado Street on Mare Island, directly north of Mare Island Way into building 289, and pointed out a spot near one or two pine trees where he said he had found the tying machine. There were no marks on the ground to indicate the tying machine had been there or that it had been rolled. The ground in that area had dirt, pine needles, and asphalt.

Bautista asked Murphy where he had gotten the tying machine, and Murphy said he had found it south of the building on Mare Island.[2] Bautista did not ask Murphy to take him to the spot where the machine was found.

A worker at building 289 testified that he did not recall seeing the tying machine outside the building on the date in question.

The tying machine belonged to a company named Lennar. It was heavy, about six feet high, and had wheels. Neither defendant nor Murphy had permission to take it. It was not Lennars practice to leave equipment outside. Neither Moelks nor Murphys fingerprints were found in building 851, where the machine had been housed. One door of the building was unlocked, and there were no signs of forced entry into the building.

Moelk and Murphy were charged by information with second degree commercial burglary (Pen. Code, 459) and receiving stolen property (Pen. Code,  496, subd. (a)). Moelk moved to sever his trial from Murphys on the ground that the statements Murphy made to the police officer were not admissible against Moelk, and would tend to incriminate him. According to the declaration of Moelks counsel, the place that Murphy told the officer he had found the tying machine was different from the location that defendant had pointed out to the officers. The trial court denied the motion, but ruled that Murphys statement must be redacted to eliminate any reference to Moelk, and that Moelks statement must similarly be redacted to eliminate any reference to Murphy. Neither Moelk nor Murphy testified at trial. The jury found Moelk not guilty of commercial burglary and guilty of receiving stolen property.[3]

II. DISCUSSION

A. Denial of Motion to Sever

Moelk contends the denial of his motion to sever his trial from Murphys, and the admission of Murphys redacted statement to the police officer, violated his constitutional right to confrontation.

When defendants are jointly charged with having committed common crimes, they are tried jointly unless the court orders separate trials. ( 1098, People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman and Marlow).) However, if the prosecutor in a joint trial seeks to admit a nontestifying codefendants extrajudicial statement, either the statement must be redacted to avoid implicating the defendant or the court must sever the trials. (People v. Hoyos (2007) 41 Cal.4th 872, 895 (Hoyos), citing People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton).) [E]ffective deletions for purposes of Aranda mean removal of not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established. (People v. Fletcher (1996) 13 Cal.4th 451, 460 (Fletcher), quoting Aranda, 63 Cal.2d at p. 530.) Even a statement by one codefendant that does not expressly name the objecting codefendant may nonetheless incriminate him by implication. (People v. Smith (1970) 4 Cal.App.3d 41, 50.)

We review the denial of a motion for severance for abuse of discretion, based on the facts as they appeared at the time of the ruling. (Coffman and Marlow, supra, 34 Cal.4th at p. 41.) However, even if the ruling on a severance motion was correct when made, the reviewing court will reverse the decision if a defendant shows that joinder actually resulted in gross unfairness, amounting to a denial of due process. Hoyos, supra, 41 Cal.4th 872, 896.) Aranda-Bruton error mandates reversal unless it is harmless beyond a reasonable doubt. (People v. Fulks (1980) 110 Cal.App.3d 609, 617-618 (Fulks).)

Moelk argues that this case is similar to Fulks, in which the Court of Appeal reversed a judgment because of error in admitting extrajudicial statements of codefendants. (Id. at pp. 614-618.) There, three defendants were tried together for robbery. (Id. at p. 611.) They had been found together in a car after a robbery. Police officers separated them and questioned them separately. One defendant, Sowell, said that he had been riding around in Hollywood and Los Angeles  with others  for several hours, and had just returned from Pasadena when he was arrested; Fulks said he had been driving down Raymond Avenue and had picked up two hitchhikers, who were arrested with him; and the third defendant, Hayes, said that he had left his house during the night to go to a dairy on Arroyo Parkway, and was arrested on his way home. (Id. at pp. 612-613, 615.) The court of appeal noted: As edited, the statements did not necessarily conflict. However, to reconcile them one would have to imagine an improbable scenario in which Sowell, after riding with others through Hollywood, and Hayes, having just visited a dairy, were hitchhiking in Pasadena at about 4 a.m., were picked up by Fulks, at which time introductions were made all around. This improbability was not lost on the prosecutor, who later argued to the jury that it would take some magic on the part of the defense to reconcile the stories and that the defendants had fabricated three separate stories. (Id. at p. 615.) In reversing, the court went on to state, Here the statements were not offered for the purpose of being added to otherwise admissible evidence, but for the sole purpose of being improperly played off against each other so as to demonstrate the collective consciousness of guilt of the three defendants. In effect, each of the declarants accused the other two of lying. Since none of the three co-defendants testified, none was afforded the constitutionally guaranteed opportunity to confront his accusers. (Id. at p. 617.)

Moelk contends that he and Murphy told the police officers that the tying machine had been found in two different locations; that although Murphys statement did not refer to Moelk, the jury must have understood that the two were acting together; and that, as in Fulks, the inconsistent statements indicated to the jury that he and Murphy were lying. It is true that, in arguments on the motion to sever, the deputy district attorney seemed to assume that the statements of Moelk and Murphy gave conflicting accounts of where the tying machine was found, and in opposing Moelks motion for a new trial, he stated that defendants had given inconsistent statements about where it had been found. However, the jury was not privy to these arguments.

The evidence before the jury does not disclose the relationship between the location near building 289 where defendant said he had found the machine, and the location south of the ferry building where Murphy said he had found it. Indeed, there was evidence at trial that the building numbers on Mare Island did not go in sequence, and Murphys attorney argued to the jury that the statements were not inconsistent because the building where the machine belonged was south of the ferry building.[4] Although defendants described the place where the tying machine was found differently, the evidence does not show that they actually referred to different places.[5]

Moelk contends the prosecutor exploited the differences between the co-defendants statements. In closing argument, the prosecutor stated, But what Mr. Murphy, what he was asked by Detective Bautista, he said the tying machine was located south of the ferry building on Mare Island. That wasDetective Bautista wanted to knowthey had been separated. Thats one of the reasons you separate co-defendants is you can get their statements by asking them independently, giving them independent interviews. And he saidthe only one that mentions anything about where he finds the tying machine, Mr. Murphys statement, about south of the ferry building. Theres no mention at all regarding the ferry building at all except what Mr. Murphys statement is to Detective Bautista. Later, he pointed out that there was no sign that the tying machine had been in the area that Moelk had said it was found, and went on to state, And then you have Mr. Murphys statement later saying ferry buildings. But theres just overwhelming evidence. He pointed to the evidence that the machine had not been abandoned and that defendants had acted under cover of night, and stated, No, [defendants] didnt confess, but thats what happens these days. People are savvy. You try to make excuses when police catch you in a lie. The one Mr. Moelk got caught in was the location and also Mr. Murphy. Thats why the police asked them stuff like that. And they gotand they tried to make up a story that We found it abandoned outside in this spot. Police did the investigation. They went back the next day, talked to other witnesses. There was nothing to support anything regarding either Mr. Moelks or Mr. Murphys statement about where the machine was found, and thats what you should look at in this case.

We cannot conclude that these references to the statements deprived Moelk of due process. (See Hoyos, supra, 41 Cal.4th at p. 896.) While the two defendants statements were different, the evidence before the jury does not indicate that they were necessarily inconsistent, or even that any mental gymnastics were necessary to reconcile them. (Compare Fulks, supra, 110 Cal.App.3d at p. 615.) Nor did the prosecutors argument amount to improperly playing the statements off against each other. (Compare id. at p. 617.) Moreover, the evidence that the tying machine had not been left where Moelk said he found it was strong, and defendant was not likely to be prejudiced by Murphys vague statement that he had found the tying machine south of the ferry building. (See Fletcher, supra, 13 Cal.4th at pp. 468-469 [propriety of introducing edited statement of codefendant determined in light of statement as whole and other evidence presented at trial].) In light of the evidence at trial and the limited nature of the references to the statements, we conclude the trial court neither abused its discretion nor deprived Moelk of his constitutional right to confrontation when it denied his motion to sever and admitted Murphys extrajudicial statement.

B. Instructional Error

Moelk contends the trial court erred in failing to instruct the jury sua sponte on the claim-of-right defense and in modifying the instruction on mistake of fact. A trial court has a sua sponte duty to instruct a jury on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) In the case of defenses, a sua sponte duty arises if it appears the defendant is relying on a defense, or there is substantial evidence to support the defense and the defense is not inconsistent with the defendants theory of the case. (Id. at p. 157.)

We review error in failing to instruct on the mistake-of-fact and claim-of-right defenses under the Watson standard (See People v. Watson (1956) 46 Cal.2d 818, 836), which focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. (People v. Russell (2006) 144 Cal.App.4th 1415, 1431-1432 (Russell), quoting Breverman, supra, 19 Cal.4th at p. 177.) A reasonable probability of a more favorable result within the meaning of Watson exists when there is at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result. (Russell at p. 1432, citing People v. Mower (2002) 28 Cal.4th 457, 484.)

The trial court modified CALCRIM No. 3406 to instruct the jury on the mistake-of-fact defense as follows: A defendant is not guilty of receiving stolen property if he does not have the intent or mental state required to commit the crime because he did not know a fact or mistakenly believe[d] a fact. If the defendants conduct would have been lawful under the facts as he believed them to be, he did not commit the crime of receiving stolen property. Ifyou find that a defendant believed that the property was owned by his co-defendant and if youhe did not have the specific intent or mental state required [for] receiving stolen property. If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for receiving stolen property, you must find him not guilty of that crime. (Italics added.)

Moelk contends this instruction failed to inform the jury that if defendant believed the tying machine to have been abandonedas opposed to being owned by Murphyhe did not have the necessary intent to be guilty of receiving stolen property. Moreover, according to Moelk, the trial court should have instructed the jury on the claim-of-right defense pursuant to CALCRIM No. 1863, which provides in part: If the defendant obtained property under a claim of right, (he/she) did not have the intent required for the crime of (theft/ [or] robbery). [] The defendant obtained property under a claim of right if (he/she) believed in good faith that (he/she) had a right to the specific property or a specific amount of money, and (he/she) openly took it. [] In deciding whether the defendant believed that (he/she) had a right to the property and whether (he/she) held that belief in good faith, consider all the facts known to (him/her) at the time (he/she) obtained the property, along with all the other evidence in the case. The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith. [] [The claim-of-right defense does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered.]

The court in Russell considered the application of the mistake-of-fact and claim-of-right instructions to a defense that the defendant believed property to have been abandoned. The defendant there testified that in the pre-dawn hours he had found an old, rusty motorcycle, covered in cobwebs, with expired registration tags, next to the trash area of a motorcycle repair shop. He knew that it was the shops policy to bring all the motorcycles that were being repaired inside at night, and assumed someone had left the motorcycle there to be used for parts. He took the motorcycle. The next morning he spoke with a salesperson at the motorcycle accessories store nearby who told him the motorcycle was not one of theirs and that the repair shop brought the motorcycles inside at night. (Russell, supra, 144 Cal.App.4th at pp. 1421-1422.) At trial, defense counsel did not request mistake-of-fact or claim-of-right instructions, and the court of appeal ruled the trial court had a sua sponte duty to provide those instructions. (Id. at p. 1431.) Concluding that the evidence that the defendant believed the motorcycle had been abandoned was relatively strong and noting that independent witnesses corroborated his testimony, the court of appeal found prejudice under the Watson standard.

We see no reasonable probability that a jury would have come to a different result had it been instructed as Moelk contends it should have been. The jury was instructed that if Moelks conduct would have been lawful under the facts as he believed them to be, he did not commit the crime of receiving stolen property. Reinforcing the point, the prosecutor told the jurors during closing argument that if they believed that the tying machine had been abandoned, then you should find them not guilty. Moreover, the evidence of abandonment was far weaker here than in Russell. The machine was in new condition, there was evidence that it belonged inside a building and that no one had left it outside, there were no markings indicating it had been where defendant said he found it, and Moelk was driving away with it at 10:00 at night. Under the circumstances, any error in failing to provide an instruction on the claim-of-right defense or to instruct differently on mistake of fact was harmless.

III. DISPOSITION

The judgment is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

RUVOLO, P.J.

___________________________

SEPULVEDA, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] The machine was a tying machine, which was used to wrap or tie off packages.

[2] It appears from the following questions and answers at trial that the reference to the building was to the ferry building on Mare Island. We cannot tell whether the reporters transcript erroneously omits the word ferry.

[3] The jury reached identical verdicts as to Murphy.

[4] Murphys attorney stated: On Mare Island, the ferry building is the first thing you come to on the left-hand side going across the bridge. If he says it was south of that, who knows? Thats really not inconsistent because 851 is south of the ferry building.

[5] Defendant acknowledges in his briefing on appeal that the testimony is less than explicit as to where Building 851 was in relation to the Ferry Building.