P. v. Ortega

Filed 3/21/08 P. v. Ortega CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed.

A jury convicted Christopher P. Ortega of one count of receiving stolen property (Pen. Code,  496, subd. (a)). The trial court placed Ortega on three years' probation, conditioned on, among other things, his serving 270 days in jail and paying restitution. Ortega appeals, contending the court erred by not giving a unanimity instruction to the jury.

FACTS

In August 2006 Karen Troxell took a vacation and arranged for a neighbor to care for her dogs. The neighbor checked the Troxell residence at 5:00 a.m. on August 5 and found everything was in order. When the neighbor returned at 1:30 p.m., she found the Troxell residence had been burglarized. The following items had been stolen: Troxell's laptop computer; her son's Play Station; five Play Station games; her son's new shoes; her son's iPod; about $150 in coins; and jewelry.

At 1:06 p.m., Ortega, accompanied by another person, sold the Play Station and games to an EB Games store in exchange for cash. The store manager was able to retrieve the receipt for the transaction and testified that Ortega used his driver's license as identification to consummate the sale.

On August 7 Troxell's son, who knew Ortega, told him that his residence had been burglarized. Ortega then went to the residence and returned the iPod and the shoes to Troxell. Ortega apologized and said he did not know the items belonged to the Troxell family. When Ortega offered to help recover the other stolen items, Troxell told him that she wanted her laptop returned. Ortega said he would see what he could do.

On September 15 the sheriff's department executed a search warrant at Ortega's residence and found Troxell's computer in a bedroom, which Ortega did not occupy. Later that day, Ortega telephoned Detective Theresa Adams-Hydar, who told him her department believed he was involved in the Troxell burglary and possessed stolen property. Ortega replied that the department had "no case" against him because he had not been caught with stolen property on his person. Hydar then told Ortega that the department had found the stolen laptop in his residence, and had already recovered the stolen Play Station and games from EB Games store as well as a receipt with his name on it. Ortega admitted he sold the items to the game store and knew the items were stolen. Ortega denied any involvement in the burglary, but refused to identify who had given him the stolen items.

At trial Ortega testified his friend Marquese "Smoky" Cooper asked him to help him sell the Play Station to EB Games. The store required the seller to have identification and Cooper did not have any identification. Ortega accompanied Cooper to the store and used his driver's license to sell the Play Station and games. Ortega denied he carried the Play Station and games into the store; rather, he said Cooper carried the items into the store and put them on the counter. As to Troxell's laptop, Ortega said he introduced Cooper to his brother-in-law, who wanted to buy that type of laptop. The brother-in-law purchased the laptop from Cooper. Ortega did not know the laptop had been stolen.

Ortega testified he did not know any of the items were stolen when he received them. Ortega denied telling Hydar that he knew the items were stolen.

DISCUSSION

Ortega contends his conviction must be reversed because the jury, which heard evidence that he had possession of several stolen items, was neither instructed on unanimity by the trial court nor clearly informed by the prosecution that it elected to seek conviction based only on Ortega's possession of the Play Station and games. The contention is without merit.

"Defendants in criminal cases have a constitutional right to a unanimous jury verdict." (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) When a defendant is charged with a single criminal act, but the evidence reveals more than one instance of the charged crime, either the prosecution must select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) If the prosecution does not make a selection, the court has a sua sponte duty to give an instruction along the lines of Judicial Council of California Criminal Jury Instructions (2007) CALCRIM No. 3500, stating that the jury must unanimously agree upon the act or acts constituting the crime. (Id. at p. 1132.) CALCRIM No. 3500 reads in pertinent part:

"The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."

The purpose of the unanimity instruction is to prevent a verdict that results from some jurors believing the defendant committed one act and others believing the defendant committed a different act, without agreement on what conduct constituted the offense. (People v. Washington (1990) 220 Cal.App.3d 912, 915-916.)

Arguing that any election made by the prosecutor in this case was too vague to effectively inform the jury, Ortega contends the trial court should have instructed the jury with CALCRIM No. 3502, which reads:

"You must not find the defendant guilty of ________ <insert name of alleged offense> [in Count ___] unless you all agree that the People have proved specifically that the defendant committed that offense [on] _______<insert date or other description of event relied on>. [Evidence that the defendant may have committed the alleged offense (on another day / [or] in another manner) is not sufficient for you to find (him/her) guilty of the offense charged.]"

The bench note for CALCRIM No. 3502 states: "If the prosecutor has elected a specific factual basis for the offense alleged but evidence of multiple acts has been admitted, the court has a sua sponte duty to instruct on the election unless the prosecutor informs the jury of the election."

Since the court did not give any unanimity instruction, the question squarely before us is whether the prosecutor made an election that sufficiently communicated to the jury that she was relying on Ortega's possession of the Play Station and games as the conduct amounting to the charged crime. The answer is yes.

At the beginning of her opening argument, after a few introductory comments, the prosecutor told the jury: "Today we're talking about one event and one event only, and that is the illegal possession of stolen property on August 5[], 2006." Later, the prosecutor said: "We're here to talk about only the property that's being sold on August 5[]." Further, the prosecutor also made it clear that the stolen items that Ortega returned to the Troxellsthe new shoes and iPodwere "not part of the crime."

Moreover, the prosecutor stressed the importance of the computer printout from EB Games, which showed that on August 5 Ortega sold the Play Station and games, and noted the evidence of the sale was uncontroverted. Throughout her argument, the prosecutor repeatedly referenced evidence of the sale and the store manager's testimony. At the end of her opening argument, the prosecutor urges the jury to make a "credibility call" and decide whether to believe the store manager or Ortega.

In her rebuttal argument, the prosecutor reiterated "the transaction we're talking about is August 5th"not the stolen computer.

There was nothing vague about the prosecutor's election to use Ortega's possession of the stolen Play Station and games as the basis of the charged crime. "Today we're talking about one event and one event only, and that is the illegal possession of stolen property on August 5[], 2006" and, "We're here to talk about only the property that's being sold on August 5[]" are sufficiently explicit to apprise the jury that Ortega was being prosecuted solely for his possession of the Play Station and games. Moreover, the prosecutor's arguments contained numerous references to evidence of the sale to EB Games, including the store manager's testimony, and statements excluding Ortega's possession of the items that he returned and the stolen laptop computer as the basis for the charged offense.

Any fair reading of the prosecutor's arguments demonstrates that this case was presented to the jury on the theory that Ortega committed the crime of receiving stolen property on the basis of his possession of the Play Station and games. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455.) "This was not a case where the prosecutor asked the jurors to select from among several discrete acts by defendant in order to convict him of [the crime charged] . . . . Because the prosecutor's . . . argument[s] elected what conduct by defendant amounted to the crime charged, we conclude that no unanimity instruction was required." (Ibid.) Here, it is plain that the prosecution selected Ortega's possession of the stolen Play Station and games and informed the jury of the election; hence, no unanimity instruction was necessary. (But see People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 [prosecutor communicated his election only to the judge and opposing counsel, not to the jury].) There was no error. In our view, it would have been appropriate for counsel to have filed an appeal under People v. Wende (1979) 25 Cal.3d 436.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

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