PEOPLE v. SMITH

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Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Wilbert SMITH, Defendant and Appellant.

Cr. 17426.

Decided: December 05, 1978

Patrick J. Sullivan, Oakland (Court Appointed), for defendant and appellant. Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Michael D. Whelan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Defendant appeals from a judgment of conviction entered on a jury verdict finding him guilty of grand theft from the person (Pen.Code, s 487, subd. 2), contending that: 1) there was insufficient evidence of specific intent; 2) his motion to suppress evidence pertaining to the wallet and currency should have been granted, as these items were material to his defense; 3) the court erroneously withdrew the defense of entrapment; and 4) as a result of the court's withdrawal of his entrapment instruction after the jury had begun its deliberations, in violation of Penal Code section 1093.5, he was deprived of the effective aid of counsel and also of a fair trial.

On February 21, 1977, San Francisco police officers, McDonagh, Coates and Corrales were part of a specially trained police decoy operation. They obtained a 3 X 8 inch wallet from the property room, recorded inside the wallet their respective badge numbers, as well as that of Officer Hampton, who was also present. Each of the four officers contributed a dollar bill; all four dollar bills were xeroxed on a single piece of paper by Coates, who wrote his initials and badge number on it, stamped it with a time stamp machine[FN1] and placed it in a locked drawer in the office of the Street Crimes Unit. Corrales copied the serial numbers of each bill on two 3 X 5 inch index cards. After Coates compared the numbers on the bills and the cards, Corrales gave one of the cards to Coates and kept the other. The four dollar bills were then placed into the wallet.

McDonagh, Coates and Corrales decided to work in one of the city's high crime areas. Appropriately dressed and unshaven for their assignment, they drove an unmarked van and parked near the corner of Turk and Jones about 2 p. m.

McDonagh, who was the decoy for the day, checked the wallet in the presence of his partners. He then placed it in the right rear pocket of his pants so that it protruded by about 1/2 inch; the ends of the dollar bills were also exposed. In accordance with their plan, Coates and Corrales took backup positions while McDonagh began to walk north on Jones Street. He pretended to be ill, clutched his stomach and moaned and then crossed from the southwest corner of Turk and Jones to the northwest corner; he tripped on the curb, fell down and appeared to hit his head on the sidewalk. He then got up and continued north on Jones; he first stopped and leaned against a parking meter and then proceeded a few feet farther to the rear of a parked car. He leaned over the trunk of the car in such a manner that the wallet was exposed to the sidewalk.

About two minutes later, McDonagh was approached by defendant, who was walking south on Jones Street. McDonagh felt his wallet being removed, while his colleagues observed the theft.[FN2] Coates and Corrales both saw defendant walking down the street with the wallet cupped in his left hand. After getting a signal from McDonagh indicating that the wallet had been taken, they followed defendant for a short distance, then stopped him, identified themselves as police officers, and arrested defendant for grand theft. The wallet was removed from defendant's left hand and had the four badge numbers inside; the serial numbers on the index cards were then compared and matched those on the four one dollar bills in the wallet.

Defendant waived his Miranda rights and then told the officers that the wallet fell from McDonagh's pocket. He picked it up and planned to keep the money.

Subsequently, the xerox copy of the money was booked into evidence. The four dollar bills were returned to the four officers who had donated them. The two index cards with the serial numbers were lost and destroyed; the wallet was used in subsequent decoy operations and was lost.

Defendant first contends that there was insufficient evidence of his specific intent to permanently deprive McDonagh of the wallet and its contents. He bases this contention on the fact that at the time of his apprehension, he still had the wallet and money in his hand.

We must view the evidence in the light most favorable to the People and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence (People v. Fuentes, 64 Cal.App.3d 953, 956, 134 Cal.Rptr. 885). To complete the crime of grand theft from a person, the intent to steal or take the property is necessary in addition to the actual stealing or taking (People v. Arriola, 164 Cal.App.2d 430, 433-434, 330 P.2d 683). The prosecution may rely on circumstantial evidence to establish beyond a reasonable doubt defendant's commission of a crime (People v. Ingram, 60 Cal.App.3d 722, 725, 131 Cal.Rptr. 752). Here defendant's intent to steal the money could readily be inferred from his conduct observed by two officers and felt by the third (People v. Campbell, 63 Cal.App.3d 599, 615, 133 Cal.Rptr. 815). We also note that in his statement to the officers after the offense, defendant admitted his intent to keep the money.[FN3] We conclude that there was ample substantial evidence of defendant's felonious intent.

Next, defendant contends that the trial court erred as a matter of law in withdrawing the entrapment defense from the jury after initially giving defendant's requested instructions. There is no merit to this contention, as there is no evidence that the offense was conceived and planned by the officers (cf. People v. Strohl, 57 Cal.App.3d 347, 367, 129 Cal.Rptr. 224). The court properly eliminated the entrapment defense as the uncontroverted evidence indicated that the officers merely provided an opportunity for a defendant with a preexisting intent (People v. Gordon, 47 Cal.App.3d 465, 477, 120 Cal.Rptr. 840).

Defendant also asserts that pursuant to People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, the court should have granted his motion to suppress all of the testimony concerning the wallet, currency and index cards, as the subsequent loss and destruction of these items deprived him of the opportunity to independently verify the chain of custody and deprived him of material evidence. As to the currency, the record indicates that the xerox copy containing the serial numbers was admitted into evidence. Thus, there was no need to preserve the currency itself. The same is true of the index cards[FN4] as the officers' testimony established that immediately after the offense, the serial numbers of the bills in the wallet conformed to the numbers on the index cards and the xeroxed copy. As to the wallet, defendant argues that the size of the wallet was material to his defense that he had picked the wallet up from the street after it had fallen out of McDonagh's pocket. The record indicates that defendant did not make this contention at the time of his motion. In any event, the physical absence of the wallet did not prevent defendant from arguing this point at the trial as the uncontroverted evidence indicated that the wallet was 8 X 3 inches and McDonagh was wearing slacks. Defendant, however, did not do so. Accordingly, the trial court properly determined that the prosecution reasonably failed to preserve the wallet as material evidence and no sanctions were warranted (cf. People v. James, 56 Cal.App.3d 876, 891, 128 Cal.Rptr. 733; People v. Swearingen, 84 Cal.App.3d 570, 573-575, 148 Cal.Rptr. 755).

Finally, defendant argues that as a result of the court's withdrawal of his entrapment instruction after the jury began its deliberations, in violation of Penal Code section 1093.5, he was deprived of the effective aid of counsel and of a fair trial.

Penal Code section 1093.5 states, in part: “In any criminal case which is being tried before the court with a jury, all requests for instructions on points of law must be made to the court and all proposed instructions must be delivered to the court before commencement of argument. Before the commencement of the argument, the court, on request of counsel, must: (1) decide whether to give, refuse, or modify the proposed instructions; (2) decide which instructions shall be given in addition to those proposed, if any; and (3) advise counsel of all instructions to be given.”

The record indicates that the court here had agreed to give defendant's requested instruction on entrapment, and did so. Subsequently, when the jury in the midst of its deliberations returned and requested further instructions, the court indicated that after some reflection, it had concluded that there was no basis for the entrapment instruction.[FN5] The court then instructed the jury to disregard the entrapment instruction.

Defendant, relying on People v. Sanchez, 83 Cal.App.3d Supp. 1, 147 Cal.Rptr. 850,[FN6] argues that the belated withdrawal of his only defense deprived him of the effective aid of counsel and a fair trial. As these contentions are based on defendant's constitutional rights, they may be raised for the first time on appeal. He asserts that here, as in Sanchez, if his counsel had known that the entrapment instruction was unavailable, his counsel could have proceeded on a different theory. Although defendant admits that here, unlike Sanchez, no other defense was available, he maintains that counsel could have focused on his version of the incident, namely, that he picked up the wallet from the street and, therefore, was guilty only of a misdemeanor, petty theft[FN7] (Pen.Code, s 489).[FN8]

We note that while published decisions of the appellate department of the superior court are not binding as precedent on this court (6 Witkin, Cal. Procedure, Appeal, s 671, pp. 4584-4585; Patten-Blinn Lumber Co. v. Francis, 166 Cal.App.2d 196, 203, 333 P.2d 255), they are often persuasive and may be properly cited (Cristmat, Inc. v. County of Los Angeles, 15 Cal.App.3d 590, 597, 599, 93 Cal.Rptr. 325; People v. Superior Court, 13 Cal.App.3d 672, 678, 91 Cal.Rptr. 651). While we think the rule of People v. Sanchez, supra, 83 Cal.App.3d Supp. 1, 147 Cal.Rptr. 850, is a salutary one, it is of no avail to the defendant here.

In Sanchez, supra, 83 Cal.App.3d Supp. 1, 147 Cal.Rptr. 850, as we indicated at footnote 6 on page 7, 147 Cal.Rptr. 850, the court's correction of the instruction required defense counsel to change the entire thrust of his argument and destroyed his credibility in the eyes of the jury and deprived defendant of a fair trial. Here, as we have indicated above, defendant was not deprived of a potential defense. Defendant's theory of the case, that he was guilty of only petty theft, was presented to the jury. As the record indicates that prior to the court's withdrawal of the entrapment instruction the jury requested a clarification of the distinction between grand and petty theft. From this, it can be inferred that the jury had rejected the entrapment defense prior to its withdrawal by the court.

We conclude, therefore, that under the circumstances of this case, there was no error that resulted in prejudice to defendant (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243).

The judgment is affirmed.

FOOTNOTES

1.  Because of an admitted malfunction in the machine, the date recorded was February 20 instead of February 21.

2.  Coates was stationed in a doorway about 15-25 feet away; Corrales was across the street about 80 feet away.

3.  Contrary to defendant's argument, the record indicates that this evidence was not admitted until after the corpus delicti had been established by independent evidence.

4.  Although the record indicates that defendant did not include this item in his Hitch motion and has thereby technically waived his right to challenge its unavailability (People v. Taylor, 67 Cal.App.3d 403, 409-410, 136 Cal.Rptr. 640), we think it is better to dispose of the matter on the merits.

5.  As we have indicated above, at page 688, this determination was correct.

6.  In Sanchez, supra, defendant was charged with battery (Pen.Code, s 242) and assault (Pen.Code, s 240). Prior to argument, the trial court indicated that its intended instructions would include defendant's proposed instruction on the lack of express or implied consent to a touching by the victim, as an element of battery. During the defense counsel's argument to the jury on the issue of consent by the victim, the trial court changed its mind about the consent instruction (see Pen.Code, s 1093.5), and interrupted that argument to explain to the jury that lack of consent was not an element of battery. This interruption required defense counsel to change the entire thrust of his argument. The appellate department held that although the trial court may have been correct in its belief that its initial acceptance of the consent instruction was wrong, its action had the effect of destroying the credibility of the defense attorney in the eyes of the jury, rendered him ineffective, and deprived the defendant of a fair trial, and reversed.Defendant, in order to fully analyze Sanchez, supra, has moved to augment the record to include the arguments to the jury which are not part of the record before us, and, therefore, cannot be considered (People v. Demond, 59 Cal.App.3d 574, 591, 130 Cal.Rptr. 590). As in the instant case the withdrawal of the entrapment instruction occurred after the argument and during the jury's deliberations, we do not think the argument would be helpful in determining the merits of the questions raised. Accordingly, we deny defendant's motion.

7.  The record indicates that the jury was instructed on petty theft.

8.  Pursuant to the statute, grand theft of the person may be either a misdemeanor or a felony. The record indicates that defendant was sentenced to state prison with the sentence to run consecutively with the prior robbery conviction on which probation was revoked at the time of the instant offense.

TAYLOR, Presiding Justice.

KANE and ROUSE, JJ., concur.