P. v. Shekell
Filed 1/10/13 P.
v. Shekell CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JEFFREY ALLEN
SHEKELL,
Defendant and Appellant.
D059301
(Super. Ct. No.
SCD226796)
APPEAL
from a judgment of the Superior Court of
County, Laura Parsky, Judge.
Affirmed.
A
jury convicted defendant and appellant Jeffrey Allen Shekell of one count of
Code, §§ 487, subd. (a), 504a; embezzlement of leased property; all
further statutory references are to the Penal Code unless noted). The court found true a related allegation he
committed the offense while on bail pending judgment in another felony offense
(§ 12022.1, subd. (b)). Imposition of
sentence was suspended and Shekell was placed on probation for three years,
conditioned on serving 180 days in county jail, and restitution orders were
made.
On
appeal, Shekell contends the trial court inappropriately gave a pattern
instruction on theft by embezzlement, as modified to add the statutory language
of section 504a. He argues this
instruction did not properly pertain to the specialized facts underlying this
theft charge, nor to his good faith defense, and that the trial court failed in
its sua sponte duty to give an instruction on the actual elements of the
offense, more precisely focusing upon its fraudulent intent requirement. (People v. Eddington (1962) 201
Cal.App.2d 574, 578-579 (Eddington).)
Shekell
made no request for such a specific instruction, nor did he pursue one proposed
by the prosecutor that included a fraudulent intent requirement. He nevertheless argues the trial court failed
to pinpoint this particular issue about the required findings about his mental
state while he held the property, in light of his original rights under the
lease to exclusive possession of it.
Absent such a request, his claims of error have been waived. (People
v. Mayfield (1997) 14 Cal.4th 668 (Mayfield).) In any case, the record shows the
instructions given fully covered all the elements of the embezzlement offense
and there was no prejudice. We affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In
April 2008, Shekell needed to store industrial equipment after he lost his
lease to his auto repair shop. Assisted
by his daughter Brandi, Shekell entered into 10 lease agreements for 10
upgraded security storage containers, with the company Coronado Mobile Storage
(CMS or the lessor). The owner of CMS,
Geoffrey Davis, accepted Shekell's payment of two months' rent on the
containers and a delivery fee, and delivered the units to Shekell's business
premises in El Cajon. The containers were each
valued at about $2,200-$2,700.
According
to the lease, Shekell was obligated to pay $95 rent per month per container (raised
from the original rent of $85), for as long as he needed them and paid the
rent. The lessor retained the right to
approve any request to move the containers, and after a few weeks, it
authorized Shekell to move them to his home in Lakeside, which he did.
After
a few more weeks, without asking for permission from the lessor, Shekell had
the containers moved to a "crane yard" or storage lot in Santee. In July 2008, Shekell returned five of the
containers. In August 2008, he fell
behind on his payments to CMS for the five containers he kept. During the summer of 2008, he was being
treated for a hip injury and was taking prescription pain medications,
including morphine.
From
October through November 2008, Shekell made $2,000 in payments by credit cards. In November, Shekell talked to Davis about
bringing his account up-to-date within a week or two. When asked about the location of the
containers, Shekell refused to provide an address.
From
January through March 2009, Shekell made some rent payments but remained in
arrears. After not paying from April
through June 2009, he told Davis he would be catching up soon.
Shekell had hip replacement surgeries in May and June 2009, and was
again prescribed pain medications and morphine.
In
June 2009, the lessor sent Shekell a notice that he was about to be sued in
civil court for back rent and nondisclosure of the location of the units, but
it did not follow through. Davis sent him
telephone and fax messages stating that his relocation of the containers and
failure to pay rent amounted to theft.
In response, Terri Shekell (Shekell's wife) explained to the lessor's
employee, David Rahill, that Shekell was having surgery, but she was planning
to send a $500 check the following day and another $500 the following week.
At
the beginning of July, Shekell was suffering from infections and was
rehospitalized. He sent $300, and later
$600 more, bringing the total he had paid to about $6,850. He told the lessor the containers were
located on a storage lot somewhere between Santee and El Cajon, near Woodside.
In
August 2009, Shekell promised to make another payment and to provide an address
for the containers, which he said were located somewhere near North Woodside and Mission Gorge Road. Rahill drove around the
area trying to find the containers, but was unable to do so. No further payments were made.
From
August through October 2009, the lessor continued to attempt to contact Shekell
in different ways, but could not do so.
The lessor got in touch with him in late October, telling him he was 11
months and over $5,000 in arrears.
Shekell responded that he was attempting to get a bank loan to pay off
the debt. He asked several friends to
help him move his belongings out of the containers, but no one was available. Those friends later testified they noticed
his speech was slurred and he seemed "messed up" for months after his
surgeries.
From
October 2009 through March 15, 2010, the lessor's
staff kept trying to contact Shekell and on one call, Shekell hung up on
them. After March 14, Shekell had no
usable fax number or e-mail address, and did not answer his home phone. He still owed $5,984.68 in unpaid rent. His wife asked relatives to help unload the
containers, and by June 2010, they did so.
Shekell
filed for bankruptcy. On behalf of the
lessor, Davis attended a bankruptcy hearing on June 16, 2010, and questioned Shekell about the location of the containers. No answer was given, but later that month,
Shekell's attorney provided Davis a map with the location of the storage containers (a rural lot in Lakeside). The lessor recovered the five containers,
which were empty and showed wear and tear, and was able to lease them out
again.
On
June 28, 2010, an information charged Shekell with grand theft of over $400. (§§ 487, subd. (a); 504a.) An amended information filed November 4, 2010 included allegations that the thefts took place from June 10, 2009 through June 30, 2010. In preparation for trial, Shekell was
examined by a psychiatrist, Clark Smith, who is an expert on the effects of
overuse of pain medication, and who found Shekell to have disorganized thought
processes.
Trial
began on January
4, 2011.
The prosecutor presented testimony from Davis and the
lessor's other employees. Shekell's defense
witnesses included family and friends testifying about his numerous medical and
financial difficulties, and his requests for help. Dr. Smith testified about impairment of
decisionmaking ability through overuse of pain medication, such as Shekell's medical
history and examination showed to him.
In
closing argument, defense counsel focused on a voluntary intoxication defense,
about how Shekell believed in 2009-2010 that he would soon be able to set
matters right with the lessor, and how his ongoing pain medication levels
unavoidably interfered with his ability to properly handle his business
affairs.
Following
numerous conferences on instructions (to be discussed post), the matter was sent to the jury. Shekell was found guilty of embezzlement and
the court made a true finding on the additional allegation. He was sentenced to three years of formal
probation, along with 180 days in county jail and restitution fines and
orders. He appeals.
DISCUSSION
Shekell
contends the trial court erred in failing to give, sua sponte, a special jury
instruction on embezzlement that would have expressly required the jury to make
a finding of his essential "intent to injure or defraud the owner of the
fraudulently removed, concealed or disposed of goods." (Eddington, supra, 201 Cal.App.2d 574, 578-579; section 504a
in relevant part reads, "Every
conceal or dispose of any goods . . . leased or let to him
by any instrument in writing . . . is guilty of
embezzlement"; italics
added.)
We
first take note that Shekell does not challenge the sufficiency of the evidence
to support the verdict on embezzlement.
He does not deny that his duties under the lease included making timely
payments and obtaining permission to move the storage containers, but he
breached the lease when he stopped making payments and changed and concealed
the location of the containers. However,
he argues his circumstances of falling behind on lease payments, but keeping
the containers, were not adequately presented to the jury on the issue of any
essential intent to fraudulently deprive the lessor of its property rights.
We
next set forth standards for deciding if prejudicial instructional error
occurred, and outline authorities that interpret these statutes. After summarizing the discussions on
instructions that took place at trial, we determine if the objections Shekell
made to the pattern instruction preserved these claims on appeal, or if invited
error occurred, or if he has waived these claims. In any event, we examine the record to decide
if the instructions as a whole sufficiently identified all essential elements
of the charged offense.
I
A. Basic Rules for Assessing
Alleged Instructional Error
" 'In
criminal cases, even in the absence of a request, a trial court must instruct
on general principles of law relevant to the issues raised by the evidence and
necessary for the jury's understanding of the case.' " (People
v. Anderson (2011) 51 Cal.4th 989, 996-997 (Anderson).) This duty may
include giving to the jury the essential elements of a charged offense. (People
v. Breverman (1998) 19 Cal.4th 142, 155.)
With
respect to a claimed defense, the trial court's sua sponte instructional duty
also extends to " ' "instructions on the defendant's theory
of the case, including instructions 'as to defenses " 'that the
defendant is relying on . . . , if there is substantial evidence supportive of
such a defense and the defense is not inconsistent with the defendant's theory
of the case.' " ' " ' " (Anderson,
supra, 51 Cal.4th at pp. 996-997;
ed. 2012)
§ 705, p. 1086.)
"When
considering a challenge to a jury instruction, we do not view the instruction
in artificial isolation but rather in the context of the overall charge. [Citation.]
For ambiguous instructions, the test is whether there is a reasonable
likelihood that the jury misunderstood and misapplied the
instruction." (Mayfield, supra, 14
Cal.4th at
pp. 777-778; see People v. Posey (2004) 32 Cal.4th 193, 218 [it is a legal issue if
jury instructions are correct statements of law].)
B. Pinpoint Instructions
An
instruction that focuses on the relationship of particular facts to the
elements of a charged crime is considered to be a pinpoint instruction, which
does not invoke the trial court's sua sponte duty to instruct. (People
v. Garvin (2003) 110 Cal.App.4th 484, 488-489 (Garvin) [no sua sponte requirement to additionally instruct on
effect of victim's threats against defendant on issue of reasonableness of
defendant's conduct, where self-defense instructions given]; 5 Witkin, Cal.
Criminal Law, supra, § 677, pp.
1044-1045.) Thus, the trial court need
not instruct about specific points or special theories that might be applicable
to a particular case, unless such an instruction is requested. (Ibid.)
" ' "While
a court may well have a duty to give a 'pinpoint' instruction relating
[specific] evidence to the elements of the offense and to the jury's duty to
acquit if the evidence produces a reasonable doubt, such 'pinpoint'
instructions are not required to be given sua sponte and must be given only
upon request." ' " (
v. Saille (1991)54 Cal.3d 1103, 1117 (Saille).)
Where
the instructions as given are adequate, "the trial court is under no
obligation to amplify or explain in the absence of a request that it do
so." (Mayfield, supra, 14
Cal.4th at pp. 778-779.) If a jury is
instructed on basic principles of law applicable to the charges, but a
clarifying instruction is desired, the burden is on the defendant to request
one. (Garvin, supra, 110
Cal.App.4th at p. 488; 5 Witkin, Cal. Criminal Procedure, supra, § 688, pp. 1060-1061.)
C. Theft Principles
The
single crime of "theft" in section 484 may encompass the offenses of
larceny, larceny by trick, obtaining money by false pretenses or
embezzlement. (People v. Nazary (2010)
191 Cal.App.4th 727, 740.) Only the
latter was charged here, as grand theft pursuant to section 487. Generally, theft occurs when one
"fraudulently appropriate[s] property which has been entrusted to
him" or when one "knowingly and designedly, by any false or
fraudulent representation or pretense, defraud[s] any other person of
. . . personal property."
(§ 484, subd. (a).)
Shekell
contends an erroneous definition of the charged offense was given, applicable
to "garden-variety embezzlement," not to his specialized facts and
defense. CALCRIM No. 1806 is entitled
"Theft by Embezzlement," and the authors cite as authority sections
484 and 503, which establish the charge of theft by embezzlement. (CALCRIM No. 1806.) Section 503 reads: "Embezzlement is the fraudulent
appropriation of property by a person to whom it has been intrusted." It is followed by numerous specific sections
that define different ways in which embezzlement can be committed, and by whom,
and defenses to it. (§ 504 et
seq.) As given, this pattern instruction
was modified by adding selected text of section 504a, placing the case within
the factual context of leased goods.
For
a conviction of embezzlement under section 504a, the prosecutor was required to
show evidence of "intent to injure or defraud the owner of the
fraudulently removed, concealed or disposed of goods." (Eddington,
supra, 201 Cal.App.2d 574, 578-579.) There, the court rejected an argument by the
defendant that his conviction of theft by embezzlement (of a record player he
bought on an installment plan) was not supported by sufficient evidence, based
on his defense theory that "his acts were merely a frustration of
repossession by the conditional seller rather than a concealment with intent to
defraud." (Id. at p. 577.) Thus,
"It is well established that intent to defraud may be inferred from the
circumstances surrounding the transaction in question." (Id.
at p. 579.)
In
interpreting the language of section 504a for purposes of determining if the
pleading of embezzlement was adequate, the court in People v. Swenson (1954)
127 Cal.App.2d 658, 662-663 (Swenson)
explained that an allegation that the defendant "did a certain act
fraudulently would inform the accused or any person of reasonable intelligence
that the act was done with intent to defraud.
While it is elementary that for one to be guilty of embezzlement he must
have intended to deprive the owner of his property unlawfully [citations], we
are of the opinion, nevertheless, that the word 'fraudulently' necessarily
included the element of intent." (
properly charged and proven regarding an automobile kept in the defendant's
possession, without his making the payments required by the sales contract].)
II
ARGUMENTS
According
to Shekell, since the instructions as given failed to focus adequately upon the
specific intent requirement of section 504a, they could have allowed the jury
to convict him only for falling behind on his payments while retaining the
property, despite his good faith defense.
He places great emphasis upon the facts that he never changed the
purpose of use of the containers, according to the original entrustment to him,
and argues he never intended to fail to comply with his lease obligations. (Cf. People v. Casas (2010) 184
Cal.App.4th 1242 [an intent to temporarily deprive the owner of possession can
amount to embezzlement of property, if it is taken for a different purpose than
the entrustment (e.g., employee driving his dealership's car in lengthy private
search for drugs)].)
In
addition, Shekell's arguments on appeal seem to encompass a theory that the
jury was not adequately instructed on how to evaluate his presented defense of
a lack of any required fraudulent intent, in light of his voluntary
intoxication evidence about how his ongoing pain medication level interfered
with his ability to properly handle his business affairs. We examine the record for support for these
assertions.
A. Discussions During Trial
Initially,
both parties submitted briefing on embezzlement instructions. The prosecutor proposed a set of instructions
that included CALCRIM No. 1806 and also a special one, giving the language of
section 504a and a statement about proving the defendant had intended to
defraud the owner in concealing the property.
However, this proposal was not pursued after the court deferred
decision. During in limine motions, the
court and counsel discussed prospective instructions on embezzlement, including
CALCRIM No. 1806. At that time, defense
counsel was focusing on whether the defendant only had an intent to temporarily
withhold the property from the owner, and how long that specific intent had to
last.
During
trial, defense counsel relied on People v. Casas, supra, 184 Cal.App.4th 1242, to argue that the
court should recognize that only a limited deprivation of use of the owner's
property had occurred in the case at trial, because Shekell had only used the
containers for their intended purposes—for storage and his own use. Defense counsel argued that the prosecutor
was required to prove that Shekell had converted the property for use for a
purpose other than the owner originally intended, and for how long. (See
People v. Kronemyer (1987) 189 Cal.App.3d 314, 361 ["mere
conversion is not sufficient to establish embezzlement; rather the conversion
must have been with the intent to defraud"].)
Next,
defense counsel sought to clarify that the jury instructions could explain that
an intent to return the containers was not a defense, but instead, "the
fact of an intent to return them or efforts to return them" would still be
relevant to show "whether or not the defendant ever had an intent to
deprive the owner or ever had the felonious intent." The court confirmed that the instructions
would allow defense counsel to argue a lack of fraudulent intent, from
Shekell's efforts to return the containers.
Prior
to instructing the jury, counsel and the court discussed instructions on
related topics, such as any consciousness of guilt shown by moving the
containers, or the effect of any false and misleading statements in the
bankruptcy proceedings. The court
declined to give CALCRIM No. 362 on the latter topic. Next, the court declined to further modify
CALCRIM No. 1806 insofar as Shekell was asking for greater emphasis on his
efforts to return the property, because the court did not want to emphasize one
piece of evidence over another. However,
at defense counsel's request, the court agreed to switch the position of two
paragraphs in CALCRIM No. 1806 (one, its usual language defining acting
"fraudulently," by taking undue advantage or causing a loss by
breaching a duty, and two, the statutory embezzlement language of section
504a). The court expressly found
"that those two different paragraphs serve two different purposes. One is definitional and the other one
explains the—what statutorily constitutes embezzlement akin to elements."
In
further discussions, the court agreed to modify CALCRIM No. 1862 with language
from People v. Sisuphan (2010) 181
Cal.App.4th 800, 813, to state that evidence of the return of property may be
relevant to the extent it shows that the defendant's intent at the time of the
taking was not fraudulent. (In
money from the employer's safe to get another employee into trouble, while
intending to return the money later; held, embezzlement conviction upheld,
because the purpose of the taking was clearly beyond the scope of the trust
afforded to him by the employer and was fraudulent.)
After
the instructional issues were tentatively resolved, defense counsel submitted
an evidentiary memo about his proposals to show Shekell had some good faith
belief that he had the right to use or convert the containers for his own use,
even after he stopped paying rent, based on his mental state and efforts to
seek help.
During
closing argument, defense counsel argued Shekell did not have a fraudulent
intent to take or conceal the leased property, based on everything that had
taken place, including the medical problems that led to his impaired judgment
and his beliefs that the solution was just around the corner. Even if such beliefs were unreasonable or
mistaken, they were arguably genuine.
B. Set of Instructions Given
In
addition to the disputed CALCRIM No. 1806 instruction, the trial court gave
CALCRIM No. 1801, explaining the degrees of theft. In CALCRIM No. 1806, the jury was told: "The defendant is charged with grand
theft by embezzlement. To prove that the defendant is guilty of this crime, the
People must prove that: [¶] "One,
an owner or the owner's agent entrusted this property to the defendant; [¶]
Two, the owner or owner's agent did so because he trusted the defendant; [¶] Three, the defendant fraudulently converted
or used that property for his own benefit; [¶] and four, when the defendant
converted or used the property, he intended to deprive the owner of the use.
"A person who fraudulently removes, conceals or
disposes of goods leased to him by an instrument in writing is guilty of
embezzlement.
[This adapted text of section 504a was added to the pattern instruction;
italics added.]
"A person acts fraudulently when he or she
takes undue advantage of another person or causes a loss to that person by
breaching a duty, trust or confidence.
"A good
faith believe [sic] in acting with
authorization to use the property is a defense. In deciding whether the
defendant believed that he had a right to the property and whether he held that
belief in good faith, consider all the facts known to him at the time he
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.
"An
intent to deprive the owner of property even temporarily is enough. Intent to
restore the property to its owner is not a defense. An agent is someone to whom the owner has
[been] given complete or partial authority and control over the owner's
property."
The
trial court also gave CALCRIM No. 1860, specifying that an owner may testify
about the value of property. In CALCRIM
No. 1862, the court covered the issue about the effect of evidence about the
defendant's intent to restore the property to its owner, in language that was
similar to CALCRIM No. 1806. The jury
was told such intent was not a defense, but "[r]eturn of the property may
be relevant to the extent it shows that a defendant's intent at the time of the
conversion or use was not fraudulent."
III
A. Analysis: Not Invited Error Here
At
this juncture, we decline to resolve this matter under the theory of invited
error, as requested by the Attorney General.
The trial court and counsel extensively negotiated jury instruction
language, including not only CALCRIM No. 1806 but also CALCRIM No. 1862 [effect
of efforts to return property]. During
this lengthy sequence of arguments, Shekell changed his position several times
and raised substantive objections against including the pattern language from
CALCRIM No. 1806 (about a definition of acting fraudulently), while also giving
the language of section 504a in the instruction (i.e., "A person who
fraudulently removes, conceals or disposes of goods leased to him by an
instrument in writing is guilty of embezzlement"). In response to Shekell's concerns, the court
modified the order of the paragraphs in the instruction but overruled the other
objections. Later, defense counsel's
closing argument included claims that the fraudulent intent element had not
been proven, based on Shekell's good faith, even if unreasonable, beliefs that
he would soon be able to comply with his obligations under the lease.
Only
if "it clearly appears on the record that the defendant objected [to
instructions] for tactical reasons and not out of ignorance or mistake"
may the defendant be precluded from complaining on appeal about the trial
court's failure to give an instruction.
(5 Witkin, Cal. Criminal Procedure, supra,
§ 680, p. 1050.) This record does not
obviously lend itself to such an interpretation, and the better approach is to
consider the substance of the appellate arguments.
B. Waiver of Claim about
Pinpoint Instruction
In
the discussions at trial about jury instructions, the issue of proof of
Shekell's intent in holding and concealing the containers, without paying rent,
was extensively addressed, as summarized above.
The defense's focus remained primarily on arguments that (1) only
temporary deprivations took place, along with efforts to restore the property,
to show consistency with his original possessory rights under the lease, and
(2) he had a good faith defense of belief in his ability to comply with lease
duties.
Although
the prosecutor's proposed instructions included a special one, giving the language
of section 504a and a statement about the defendant's intent to defraud the
owner in concealing the property, the court deferred decision on it and it was
not given. Shekell's attorney was
clearly aware of the question of whether a requirement of a specific finding on
the element of fraudulent intent should be included in the instruction on
embezzlement. That issue amounted to a
theory about the relationship of particular facts to the charged crime, i.e.,
his defense he was acting in good faith at all the relevant times, and had not
altered the original purpose for which the containers were being leased to
him. He sought to rebut the
prosecution's arguments about his fraudulent intent as an element of the offense,
by relying on the evidence about his serious financial and medical problems,
leading to nonpayment under the lease and no timely return of the leased
property.
To
the extent that Shekell wanted to emphasize different factual circumstances or
evidence to rebut the mental element of the embezzlement offense, a proposed
instruction along those lines would be "pinpoint" in nature. (See Saille,
supra, 54 Cal.3d at p. 1119.) He had the obligation to ask the trial court
to clarify or amplify the instructions in that manner. (Anderson,
supra, 51 Cal.4th at pp. 996-997;
pp. 778-779.) Now, he "may not complain on appeal that
the instruction was ambiguous or incomplete," and arguably, he has waived
the current claims. (
C. Adequacy of Instructions
as a Whole
An
alleged instructional omission, about an element of a charged offense, is
"a mere trial error, one committed in the presentation of the case to the
jury." (Breverman, supra, 19
Cal.4th at p. 176.) The test for
harmless error applies, to assess any probable adverse effect of an erroneous
failure to so instruct, by using "an individualized, concrete examination
of the record." (
Assuming
we should decide the merits of Shekell's argument there was insufficient instructional
focus on the evidence regarding his intent, we must consider "if the issue
which would have been presented by the omitted
instructions . . . was necessarily resolved adversely to
the defendant under other, proper instructions." (Breverman,
supra, 19 Cal.4th at p. 175.) We inquire if there was any significant risk
the jury might have been misled about the existence of the required intent for
a conviction of embezzlement of leased property. (Mayfield,
supra, 14 Cal.4th at pp. 777-778.)
In
CALCRIM No. 1806, the court explained that the People had to prove that Shekell
was leased the property by the owner, based on a situation of trust, but he
"fraudulently converted or used that property for his own benefit,"
and when doing so, "he intended to deprive the owner of the
use." The court next used the
statutory language of section 504a, to define "embezzlement" as
fraudulently removing or concealing or disposing of goods that were under
lease.
After
this statutory language, the court used the standard terms of CALCRIM
No. 1806, to define acting
"fraudulently" as taking undue advantage of another person or causing
a loss to that person by breaching a duty, trust or confidence. The court then told the jury that an available
defense was a good faith belief in acting with authorization to use the
property, but the jury could conclude the defendant's belief was not in good
faith, if he was aware of facts making that belief completely
unreasonable. Even a temporary deprivation
of property rights was enough.
The
topic of evidence about the defendant's intent to restore the property to its
owner was covered in both CALCRIM Nos. 1806 and 1862, by telling the jury such
intent was not a defense, but "[r]eturn of the property may be relevant to
the extent it shows that a defendant's intent at the time of the conversion or
use was not fraudulent." The court
gave a voluntary intoxication instruction about how to evaluate whether the
defendant acted or failed to act with the intent to deprive the owner of use of
the property.
We
disagree with Shekell that this set of instructions failed to provide the jury
with adequate guidance for evaluating the evidence about his fraudulent intent,
as shown by his conduct of his affairs over a period of more than a year, by
failing to make rent payments or to disclose the location of the containers, or
to return them. It is significant that
he has not challenged the sufficiency of the evidence to support the
conviction, and it is specious for him to disregard the evidence about the
manner in which he used the property contrary to the terms of the lease, while
continuing to argue he properly used it for his enjoyment, simply because of
the original purpose of the lease. There
was circumstantial evidence of his "intent to injure or defraud the owner
of the fraudulently removed, concealed or disposed of goods." (Eddington,
supra, 201 Cal.App.2d at
pp. 578-579.)
The
jury learned from the instructions given that it was required to determine
whether the alleged acts of concealment and nonpayment, shown in the evidence,
were impliedly done with an intent to defraud.
(Swenson, supra, 127
Cal.App.2d at pp. 660-663.) The issues
about noncompliance with his duties under the lease were indirectly addressed
in a portion of CALCRIM No. 1806, telling the jury that a person acts
fraudulently by taking undue advantage or causing loss "by breaching a
duty, trust or confidence."
When
the instructions are read as a whole, it is apparent that the jury was fully
instructed as to the necessity of finding that Shekell moved and/or concealed
the containers while failing to pay rent, with the specific intent of
defrauding the owner of an ownership interest.
(See Swenson,
for evaluating all the relevant factors that affected his mental condition at
the relevant times, with respect to compliance with the lease terms and
purpose. There was no instructional
error and we affirm.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
McINTYRE, J.
