Filed 9/2/15 P. v. Ngo CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B262341

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA093334)
         v.

CUONG CHINH NGO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Suzette
Clover, Judge. Affirmed.
         Stanley Dale Radtke, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted defendant and appellant Cuong Chinh Ngo (defendant) on two
counts of unauthorized use of personal information, in violation of California Penal Code
section 530.5. The evidence at trial established that defendant obtained the checking
account number of a third party and told his girlfriend to use the account number when
paying utility bills. We are asked to decide whether the trial court should have granted
the defense request to give a “mistake of fact” jury instruction (CALCRIM No. 3406) to
pinpoint for the jury defendant’s argument that he did not know he lacked lawful
authorization to use the account number when he provided it to his girlfriend.


                                    BACKGROUND
       In April 2014, Wa Hing Chan noticed two charges to his Citibank checking
account that he did not authorize, one from the Southern California Gas Company and the
other from the Walnut Valley Water District. Chan reported the charges to the police.
       Detective Bing Han of the Monterey Park Police Department investigated the
unauthorized charges. He learned that the service address associated with both charges
was a residence in West Covina where defendant’s girlfriend was living; he also
discovered that both payments had been made using her mobile phone number. Detective
Han visited the West Covina residence and spoke to defendant’s girlfriend. Han asked
her to call defendant, which she did, and Han spoke to defendant over the phone.
       Admissions made by defendant during the phone conversation with Detective Han
were the heart of the prosecution’s case. Han testified that defendant admitted he
obtained the account information used to make the two payments to the utility companies.
Defendant told Han that a man named “Ben” he met at the Commerce Casino gave
defendant a check and told him that he “could make payments using the information on
the check” to satisfy a $300 debt that Ben owed defendant. Defendant admitted that he
gave the checking account information to his girlfriend to use to make the two utility
payments. Defendant provided Detective Han with a phone number that he claimed was
Ben’s, but when Han called the number it was not in service.

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       During the phone conversation, Han asked defendant about the information on the
check. According to Han, defendant initially said he wasn’t paying attention to whose
name was on the check, “but it wasn’t the same name.” Han also testified that defendant
initially denied knowing something was wrong with the check. After Han asked
defendant a couple more times, however, defendant admitted that he figured something
was not right about the check. Han asked defendant if he knew the information on the
check was stolen, and defendant said “yes.” Defendant also told Detective Han that his
girlfriend did not know that the account number she used to make the payments was from
a stolen check.
       Defense counsel cross-examined Detective Han about the questions he did not ask
defendant during the phone conversation. Detective Han conceded he had not asked
defendant when it was that he first noticed the name on the check wasn’t Ben’s. Han also
testified that he had not asked defendant when it was that he figured out there was
something that wasn’t right with the check, nor had he asked defendant when it was that
“he kind of knew that the check had a problem with it.” Defendant did not present any
evidence after the close of the prosecution’s case.
       When conferring with the court regarding jury instructions, the prosecution asked
for an instruction on an aiding and abetting theory of liability, using CALCRIM Nos. 400
and 401. The court agreed. The defense requested the court give a mistake of fact
instruction, CALCRIM No. 3406. Defense counsel argued the instruction was necessary
“to pinpoint for the jury a deficiency in the prosecution’s case because if [defendant] was
unaware of the fact that Ben’s name was not the name on the check at the time he initially
received it or at some time prior to its usage, then he has not committed the crime.” The
court declined to give the instruction. The court found there was no substantial evidence
justifying the instruction. The court also explained that the instructions on the elements
of the offense and on aiding and abetting precluded finding defendant guilty if he did not
have the requisite intent.




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                                       DISCUSSION
       Defendant claims the court should have instructed on mistake of fact and he
argues the failure to give the instruction precluded him from presenting a defense. Our
review is de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1218; People v. Russell
(2006) 144 Cal.App.4th 1415, 1424 (Russell).)
       The defense of mistake of fact serves to negate the mental state required for a
charged offense. (People v. Lawson (2013) 215 Cal.App.4th 108, 111; see also People v.
Larsen (2012) 205 Cal.App.4th 810, 830 [pinpoint instruction draws jury’s attention to
evidence that highlights the relevant mental state].) It applies where a defendant has a
mistaken belief in a fact or facts that, if true, establish the defendant’s conduct was not
unlawful. (Russell, supra, 144 Cal.App.4th at pp. 1425-1426; accord People v. Hanna
(2013) 218 Cal.App.4th 455, 461 [quoting People v. Reed (1996) 53 Cal.App.4th 389,
396].) Where supported by substantial evidence—that is, evidence a reasonable jury
could find persuasive—a request for a mistake of fact instruction should be granted.
(Russell, supra, 144 Cal.App.4th at p. 1424; see also People v. Salas (2006) 37 Cal.4th
967, 982-983; People v. Duckett (1984) 162 Cal.App.3d 1115, 1124-1125.) But a court
need not give a mistake of fact instruction where the evidence supporting it is minimal or
insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145; People v. Flannel (1979)
25 Cal.3d 668, 684; Russell, supra, 144 Cal.App.4th at p. 1427.)
       There was no substantial evidence supporting a mistake of fact instruction in this
case. Detective Han testified that defendant said “Ben” from the casino told him he could
use the information on a check to make payments,1 but Han testified that defendant
admitted that he figured something was not right with the check. According to Han,
defendant also admitted that he wasn’t paying attention but “it wasn’t the same name”


1
       As recounted by Detective Han, defendant said Ben told him he “could make
payments using the information on the check.” No one testified that Ben told defendant
anything about the source of the account or his (Ben’s) authority to offer the check as
payment (e.g., that it was his account).

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(Ben’s name) on the check, that he (defendant) knew the check was stolen, and that his
girlfriend didn’t know that the checking account number she used was from a stolen
check. As the trial court observed, there was no evidence introduced to the contrary, i.e.,
that defendant honestly believed that he had lawful authorization to use the account
number on the check. The absence of any such substantial evidence is what makes this
case different from Russell; in that case, the defendant testified that he believed a
motorcycle he took had been abandoned and he even introduced additional evidence
corroborating that belief. (Russell, supra, 144 Cal.App.4th at pp. 1430-1431.)
       Defendant counters that such evidence does exist here. He points to the questions
Detective Han conceded he did not ask defendant and argues “there is a reasonable
inference that [defendant] only learned the check was no good after the payments were
refused by the utility companies.” That is not an inference; that is supposition. There
was no affirmative evidence, sufficient to deserve consideration by the jury, to show
defendant believed he had lawful authorization to use the account information he
obtained. A mistake of fact instruction was not required.
       Furthermore, the instructions the court did give permitted defendant to present his
defense to the jury. The court instructed on the elements of identity theft and aiding and
abetting, explaining that the prosecution must prove that defendant specifically intended
to facilitate the commission of identity theft, which requires, among other things, the use
of someone else’s personal identifying information for an unlawful purpose. As the trial
court explained when it discussed jury instructions with counsel, the instructions would
therefore preclude a conviction unless the jury found defendant knew use of the account
information was unauthorized when he gave the account number to his girlfriend: “[I]f
he thought that the check was legitimate, then he wasn’t using it for an unlawful
purpose.” Defense counsel relied on the instructions given to argue precisely that point
in closing. We therefore reject defendant’s contention that he was deprived of his due
process right to present a defense; his defense was squarely before the jury even in the
absence of a mistake of fact instruction. (People v. Watt (2014) 229 Cal.App.4th 1215,
1219-1220 [“Not only did the instruction at issue not foreclose the jurors from acquitting

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defendant if they had a reasonable doubt that defendant knew the property had been
stolen, it expressly required the jurors to acquit him if they had such a doubt.”]; People v.
Hanna (2013) 218 Cal.App.4th 455, 463 [no prejudice from absence of mistake of fact
instruction where court correctly instructed on the elements of the offense]; People v.
Larsen, supra, 205 Cal.App.4th at pp. 829-831.)


                                      DISPOSITION
       The judgment is affirmed.


               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                    BAKER, J.



We concur:



       TURNER, P.J.



       KRIEGLER, J.




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