P. v. Moppin

Filed 10/27/06 P. v. Moppin CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Affirmed as modified and remanded with directions.

Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Kenneth Bruce Moppin.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant Jermal Pili Smith.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

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Kenneth Bruce Moppin and Jermal Pili Smith were both convicted of two counts of grand theft. (Pen. Code, § 487, subd. (a).)[1] The trial court sentenced Moppin to state prison for a term of three years, eight months, and Smith to a term of two years. Both men appeal, with Moppin (joined by Smith) purportedly challenging the sufficiency of the evidence but in reality claiming instructional error, Smith (joined by Moppin) claiming directly that there was instructional error, and the Attorney General contending the trial court failed to impose a mandatory fee. We modify the judgment to reflect the fee and, as modified, affirm.

FACTS

Count 1. Donald Narvaez saw a “for sale” sign in a car window and told Moppin, the apparent owner, that he was interested in buying the car. They agreed on a price ($4,000) and agreed to meet later in the day. When they met, Smith and Moppin were in the car. Narvaez joined them and showed them the money. Moppin and Smith said they also had a computer for sale and showed Narvaez a box. While Narvaez was looking at the box, Moppin pointed a gun at him and demanded the $4,000. Narvaez complied and (still holding the box) got out of the car. Moppin and Smith drove off, leaving Narvaez with an empty box.

Count 2. Antonio Espinoza was at a shopping mall when Moppin offered to sell him a computer. Espinoza expressed interest, phone numbers were exchanged, and Moppin (joined by Smith) later offered to sell Espinoza three computers. When they met a few days later, Espinoza gave Smith $900, and Moppin gave Espinoza three boxes. After Moppin and Smith left, Espinoza realized there were no computers in the boxes.

Both victims reported the thefts to the police, and Moppin and Smith were later arrested at a motel while in the act of filling a car with boxes similar to those used to sell the nonexistent computers. Packaging materials were found in the motel room. Moppin and Smith were charged with one count of robbery and one count of grand theft but a jury found them guilty of grand theft on both counts.[2]

DISCUSSION

I.

Moppin contends there was instructional error concerning the type of grand theft at issue and that, due to the instructional error, there was insufficient evidence to support his conviction of grand theft. Smith raises the same claim of instructional error, and each joins in the other’s argument. The Attorney General concedes the error but contends it was harmless. We agree with the Attorney General.

A.

Moppin and Smith both testified in their own defense. Moppin admitted that he had been running a scam in which he sold counterfeit laptop computer boxes to strangers, and he expressly admitted both bogus computer sales. He said he never discussed the sale of a car with Narvaez. Smith admitted his participation in both sales.

B.

The jury was instructed according to CALJIC No. 14.05 (theft by trick) that: “Every person who, with the specific intent to deprive permanently another person of his property, obtains possession of personal property of another by either (1) a false promise without intent to perform, or (2) fraud, artifice, trick, or device, is guilty of the crime of theft by trick and device. In order to prove this crime, each of the following elements must be proved: 1. A person obtained possession of personal property of some value belonging to the alleged victim; 2. That person obtained possession by making a false promise which he had no intention of performing, or by means of other fraud, artifice, trick, or device; 3. In surrendering possession of the property, the alleged victim did not intend to transfer the ownership; and 4. The person who obtained possession did so with the specific intent to deprive the alleged victim permanently of his property.” (Emphasis added.)

Because the victims did intend to transfer ownership of the money they paid to Moppin and Smith for the bogus computers, Moppin and Smith contend (and the Attorney General concedes) that the jury instead should have been instructed according to CALJIC No. 14.10 (theft by false pretense): “Every person who knowingly and designedly by any false or fraudulent representation or pretense, defrauds another person of money [or] personal property, is guilty of the crime of theft by false pretense. In order to prove this crime, each of the following elements must be proved: 1. A person made or caused to be made to the alleged victim by word or conduct, either (1) a promise without intent to perform it, or (2) a false pretense or representation of an existing or past fact known to the person to be false or made recklessly and without information which would justify a reasonable belief in its truth; 2. The person made the pretense, representation or promise with the specific intent to defraud; 3. The pretense, representation or promise was believed and relied upon by the alleged victim and was material in inducing him to part with his money or property even though the false pretense, representation or promise was not the sole cause; and 4. The theft was accomplished in that the alleged victim parted with his money or property intending to transfer ownership thereof.“ (Emphasis added.)[3]

C.

We agree there was error (People v. Benavides (2005) 35 Cal.4th 69, 111) but conclude that, by any standard, it was harmless (Chapman v. California (1967) 386 U.S. 18, 24; People v. King (2006) 38 Cal.4th 617, 628 [failure to instruct on an element of offense was harmless in light of strength of evidence]).

To avoid the conclusion that follows from their admissions at trial -- that they were guilty of theft -- Moppin and Smith cite People v. Curtin (1994) 22 Cal.App.4th 528, where (based on the same instructional error) the Court of Appeal reversed without considering whether the error was harmless. (Id. at p. 532.) People v. Counts (1995) 31 Cal.App.4th 785, 788-794, offers a better analysis of this issue, finding the instructional error harmless when the evidence supports a theory of theft by false pretenses (id. at pp. 791-792), and rejecting the assertion that the doctrine of harmless error does not apply in this context (ibid.). More recently, People v. Traster, supra, 111 Cal.App.4th 1377 (where the opposite error occurred, that is, the jury was instructed on theft by false pretenses when it should have been instructed on theft by trick), the Court of Appeal explained that this error “is merely a technical one in which the jury was instructed on a particular theory of theft which turned out to be the wrong one. In these circumstances, the instructional error is harmless.” (Id. at p. 1389.)

There can be no doubt that the error was harmless in our case -- because both defendants corroborated both victims’ testimony about the thefts by false pretenses. Indeed, Moppin and Smith admitted their guilt to the police, in their opening statements at trial, and in their testimony at trial. Under these circumstances, there is not the slightest possibility that the instructional error affected the outcome of this case.

II.

The Attorney General contends, Moppin and Smith concede, and we agree that both defendants should have been ordered to pay court security fees ($20 for each count, a total of $40 for each defendant). (§ 1465.8, subd. (a)(1).) We will modify the judgment accordingly.

DISPOSITION

The judgment is modified to reflect that Moppin and Smith are each ordered to pay court security fees of $40 (§ 1465.8, subd. (a)(1)) and, as modified, affirmed and remanded to the trial court with directions to enter a corrected abstract of judgment and forward it to the Department of Corrections.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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[1] All section references are to the Penal Code.

[2] There was a gun use allegation against Moppin but the record is unclear about whether it went to the jury.

[3] The jury also should have been instructed that Moppin and Smith could not be convicted of theft by false pretense unless the false pretense was proved by the testimony of two witnesses or that of one witness and corroborating circumstances. (CALJIC No. 14.14; People v. Traster (2003) 111 Cal.App.4th 1377, 1390.)