Filed 9/29/16 P. v. Boegeman 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



THE PEOPLE,                                                         D068525

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN339497)

CHRISTOPHER BOEGEMAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard S.

Whitney, Judge. Affirmed.

         Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, Scott C. Taylor, Tami

Falkenstein Hennick, and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and

Respondent.
       A jury convicted Christopher Boegeman of grand theft. (Pen. Code1 § 487, subd.

(a).) The trial court suspended imposition of sentence and placed Boegeman on three

years' formal probation, including 180 days in local custody. Boegeman contends (1) the

court violated his Fourteenth Amendment right to due process and Sixth Amendment

right to a jury trial by instructing the jury that he could be guilty of theft as an aider and

abettor without defining the elements of aiding and abetting; (2) the court violated his

Fourteenth Amendment right to due process by instructing the jury on the legally invalid

theory that he committed larceny as a direct perpetrator; and (3) the court prejudicially

erred by admitting inadmissible hearsay evidence contained in a delivery confirmation

document. We affirm.

                                            FACTS

       Boegeman and David Schroeder shared an apartment in Escondido. Boegeman

provided caretaking services to Schroeder in exchange for room and board. Their

neighbor, Douglas Goll, bought and sold items on eBay for them and kept two percent of

the proceeds of the items he sold as a commission. Boegeman and Schroeder told Goll

they did not want to sell items in their own names because they did not want to show

income that would jeopardize their HUD housing.

       In April 2014, Boegeman and Schroeder approached Goll together and discussed

buying and selling silver online. Boegeman told Goll that if he did not sign the UPS or

FedEx confirmation of delivery slip when silver was delivered, he could claim he had not


1      All statutory references are to the Penal Code unless otherwise specified.

                                               2
received it. Schroeder likewise said that by not signing for a delivered item he could

claim it was never delivered or was stolen. He said he always claimed his packages were

stolen from his apartment. In separate conversations, Boegeman and Schroeder both told

Goll that by not signing for purchased products, a person could either get a refund and

keep the product or get a duplicate and have two products. Boegeman said he once

signed his name as Mickey Mouse.

       Following those conversations, Boegeman and Schroeder asked Goll to bid on a

set of silver on eBay. When the price reached about $3,850, Goll asked Schroeder for the

money to purchase the silver at that price. Schroeder used Boegeman's credit card to pay

for the silver. eBay initially accepted the card, but later cancelled the transaction.

       In April 2014, Schroeder called Dean Gannon to inquire about a set of sterling

silver flatware that Gannon's family antique business was marketing on eBay. After an

extensive conversation, Gannon agreed to sell the silver to Schroeder for approximately

$8,145 and ship it to him. Schroeder paid for the silver with a Visa credit card and

Gannon entered the card number into his register machine. The charge was accepted and

Gannon shipped the silver to Schroeder through FedEx. The delivery address was

Schroeder's apartment, 1121 Morning View Drive, Apartment 205 in Escondido.

Gannon purchased insurance for the shipment from FedEx that would reimburse him up

to $1000 plus the cost of shipping if the shipment were lost or damaged.

       FedEx driver Steven Milner delivered the package containing the silver to

Schroeder and Boegeman's apartment on April 26, 2014. When Milner knocked on the

door, Boegeman opened the door and signed for the package. He identified himself as

                                              3
David Schroeder. Because Boegeman stated the full name of the addressee on the

package and Milner was at the specified delivery address, Milner did not ask Boegeman

for identification. Milner testified that there was another man in the apartment "just

sitting there in the background." Milner remembered having a brief conversation with

Boegeman in which Milner complained about having to work on a Saturday and

Boegeman responded, "At least you have a job." Milner had seen Boegeman on prior

occasions when he made deliveries but had never spoken with him before April 26, 2014.

       Sometime after April 26, 2014, Schroeder called his credit card company and

reported that he had not received the silver he ordered from Gannon. Consequently, Visa

reversed the charge and withdrew the money that had been paid into Gannon's account

for the silver. Gannon then opened a fraud claim with FedEx and collected insurance

proceeds from FedEx of $1000 plus the cost of shipping the silver.

       Gannon also called investigator Scott Tolstad of the Escondido Police Department

regarding the possible theft of the silver he had shipped to Schroeder. Tolstad contacted

a FedEx investigator who told him Milner was the driver who delivered the silver to

Schroeder and Boegeman's address. When Tolstad initially contacted Milner by phone,

Milner told Tolstad he remembered making the delivery and thought he would be able to

identify the person who accepted the package. Tolstad later showed Milner a "six-pack"

of DMV photographs. One of the six photographs was of Boegeman and the other five

were of similar looking men. Milner circled the photograph of Boegeman and noted on

the six-pack that he recognized Boegeman from the delivery on Morning View Drive.

Milner told Tolstad that Boegeman was the person who signed for the package.

                                             4
       At trial, Milner testified that a week or two after he delivered the silver to

Boegeman, he made another delivery to the same address but "[i]t was a totally different

name." The first two times he attempted to make the delivery, there was a note on the

door instructing him to "take it to somewhere else." Milner "didn't feel safe in doing

that," so he made a third attempt to deliver it to Schroeder and Boegeman's apartment.

On the third attempt, the other man Milner had seen in the apartment on April 26 opened

the door. Milner told the man he need to see identification before he would release the

package. At that point "the other gentleman came up and was angry that [Milner]

wouldn't let him sign for it." Both men refused to show identification and one of them

eventually closed the door on Milner because he refused to release the package.

       Boegeman testified at trial that he and Schroeder left Escondido on Friday, April

25, 2014, and did not return to their apartment until around 11:00 p.m. on Sunday, April

27, 2014. They spent the weekend going to yard sales in Pasadena and Long Beach and

helping their friend Tanya Williams-Mahee buy merchandise to sell at swap meets.

Williams-Mahee also provided caretaking services to Schroeder. Before they left on

Friday, their upstairs neighbor Cynthia Omey asked them to watch her dog for the

weekend. Boegeman told her they could not watch the dog because they had other plans

for the weekend.

       Boegeman testified that he first encountered Milner a couple of months before the

weekend of April 26, 2014, and had two other encounters with Milner before that

weekend. In the first encounter he asked Milner to leave packages at the rental office for

the apartment complex and to stop leaving them on Boegeman's patio or door. Milner

                                              5
responded that it was "none of [Boegeman's] effing business to tell him how to do his job.

If he [had] a problem, take it up with corporate."

       The second encounter was a "screaming match." Boegeman told Milner he was

"getting really tired of [his] packages coming up missing and seeing these signs saying

that [Milner] delivered something when it was never there. And being accused of

something." Boegeman asked Milner multiple times to leave deliveries at the rental

office. Milner said that was not his job. "His job is to throw it there and keep going. He

doesn't care."

       In the third encounter, Boegeman complained to Milner about a package that

"never showed up." Milner said that he had left the package and that Boegeman was

ignorant. Boegeman responded, "[W]ell, if you weren't working, we should step outside

and handle this because I'm missing packages that, you know, belong to me and I have

paid and I use." Boegeman called FedEx "corporate" and discussed the matter with them.

Boegeman testified that he and Schroeder had lost about $10,000 worth of missing items

as a result of FedEx's misplacing their packages throughout the years.

       Schroeder testified that he was with Boegeman and Williams-Mahee in Los

Angeles the weekend of April 25, 2014.2 The silver he purchased from Gannon was

supposed to have been delivered that Saturday. On Monday, Schroeder called FedEx and

was told the package had been delivered next door. He went next door with Williams-



2     Schroeder testified that "LA is one big area to me[,]" and that "[a]nything past
Disneyland is LA."

                                             6
Mahee, but the package was not there. He then called his credit card company and was

told they would contact Gannon to determine whether he would refund Schroeder's

money because Schroeder had not received the merchandise. Schroeder never got the

silver. Regarding Boegeman's previous conflict with a delivery man, Schroeder testified

that a FedEx delivery man was not nice to him, and he thought "that's what made

[Boegeman] mad. It also made [the FedEx driver] mad. He was nasty the way he

responded."

      Williams-Mahee testified that she was in Los Angeles on the 25th, 26th, and 27th

of April 2014 and was shopping in downtown Los Angeles with Boegeman and

Schroeder on Saturday the 26th around 4:00 to 6:00 p.m. They went their separate ways

Saturday night and did not see each other again until Sunday evening, when they met

before driving back to Escondido.

      Omey, whose apartment was above Schroeder and Boegeman's apartment,

testified that a couple of days before April 25, 2014, she asked Boegeman and Schroeder

if they would watch her dog over the coming weekend because she and her husband were

going to be visiting their daughter in Pasadena over the weekend. They told her they

could not watch her dog because they were also going to be in Pasadena. Around 6:00 to

6:30 a.m. on Saturday, April 26, Omey rattled the doorknob to Schroeder and

Boegeman's apartment to make sure it was locked before she left for Pasadena. The door

was locked and no one came to the door. When she returned on Sunday evening, there

was an unsigned "Post-it-type" note on her door from FedEx that read, "I left a package



                                            7
for Apartment No. 105. You signed for it!" The note was underscored several times.

Omey gave the note to Schroeder.

        To rebut Boegeman's alibi defense, the prosecution called Don Holmes, an

investigator for the San Diego County District Attorney's Office, to testify as an expert on

cellphone records and technology. He explained that a phone company always knows

where a phone is being used because the "phone is always sending and receiving radio

signals from cellphone towers that [the] carrier has set up throughout the general

geographical area that [the user] lives in." Holmes analyzed records of calls made from

and received by Boegeman's cellphone between April 25 and April 27, 2014. He testified

and presented a power point presentation showing that all of the phone's outgoing and

incoming calls during that time period connected to cellphone towers in the Escondido

area or Temecula area. The phone did not make or receive any calls in the Los Angeles

area.

        In surrebuttal Boegeman testified that the cellphone in question was not in his

possession from April 25 through April 27, 2014. He left the phone with a neighbor that

weekend who had asked him if she could use it to contact her son. He did not recognize

any of the phone numbers listed in Holmes's power point presentation.

                                       DISCUSSION

                       I. Failure to Instruct on Aiding and Abetting

        Boegeman contends the court violated his Fourteenth Amendment right to due

process and Sixth Amendment right to a jury trial by instructing the jury that he could be

guilty of theft as an aider and abettor but not further instructing on the elements of aiding

                                              8
and abetting. The court instructed the jury regarding Boegeman's alibi defense with a

modified version of CALCRIM No. 3400 as follows:

       "The People must prove the defendant committed grand theft in violation of Penal
       Code section 487 (a) as charged in Count 1. The defendant contends he did not
       commit this crime and he was somewhere else when the crime was committed.
       The People must prove the defendant was present and committed the crime with
       which he is charged. The defendant does not need to prove he was elsewhere at
       the time of the crime.

       "If you have a reasonable doubt about whether the defendant was present when the
       crime was committed, you must find him not guilty.

       "However, the defendant may also be guilty of grand theft in violation of Penal
       Code section 487[, subdivision] (a) as charged in Count 1 if he aided and abetted
       or conspired with someone else to commit that crime. If you conclude that the
       defendant aided and abetted or conspired to commit grand theft, then he is guilty
       even if he was not present when the crimes were committed." (Italics added.)

       With the italicized language above, the court instructed the jury that it could

convict Boegeman of theft as an aider and abettor, but the court did not instruct the jury

on the requirements for aider and abettor liability, including the requirement of criminal

intent.3

       The People acknowledge that a court's failure to properly instruct the jury on the

elements of aiding and abetting is subject to review under the harmless beyond a

reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 (Chapman).



3      An appropriate instruction on aiding and abetting "should inform the jury that a
person aids and abets the commission of a crime when he or she, acting with (1)
knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages or instigates, the commission of the crime." (People v.
Beeman (1984) 35 Cal.3d 547, 561; see CALCRIM No. 401.)

                                             9
(People v. Reyes (1992) 2 Cal.App.4th 1598, 1601-1602; People v. Sarkis (1990) 222

Cal.App.3d 23, 28-29.) Under that standard, error is harmless if the reviewing court

determines beyond a reasonable doubt that the error did not contribute to the verdict.

(People v. Aranda (2012) 55 Cal.4th 342, 367.) "When there is ' "a reasonable

possibility" ' that the error might have contributed to the verdict, reversal is required."

(Ibid.)

          We conclude that to the extent the court erred by referencing aiding and abetting

in its alibi-defense instruction without defining the elements of aiding abetting, the error

was harmless beyond a reasonable doubt—i.e., there is no reasonable possibility that

Boegeman would have obtained a more favorable verdict on the grand theft charge had

the court defined the elements of aiding and abetting in connection with its alibi

instruction. The prosecution specifically informed the jury that its theory was conspiracy,

and the court correctly and specifically instructed the jury on necessary mental state and

acts to support a finding that Boegeman was guilty of theft by false pretenses as a

member of a conspiracy with Schroeder.4 The prosecutor did not argue or even mention

aiding and abetting to the jury. Boegeman's main defense was not ignorance of any

criminal scheme to steal Gannon's silver, but rather that he and Schroeder were not home



4       The court's conspiracy instruction informed the jury that to prove Boegeman of
theft as a member of a conspiracy, the People had to prove that Boegeman "intended to
and did agree with David Schroeder to commit theft by false pretenses[,]" and that
Boegeman and Schroeder "committed at least one of the following overt acts to
accomplish theft by false pretenses: [¶] 1) Ordered silverware from Dean Gannon without
an intent to pay; [¶] 2) Received the delivered silverware but claimed never to have
received it; [¶] 3) Withdrew payment for the silverware despite having received it."
                                               10
on the date the evidence shows the silver was delivered to their residence. As the People

note in their brief, during closing arguments the prosecutor and defense counsel

collectively presented the jury with two possibilities: either Boegeman conspired with

Schroeder to steal the silver or he was entirely innocent.

       The jury obviously rejected Boegeman's and Schroeder's alibi evidence that they

were in the Los Angeles area on April 26, 2014, and found credible Milner's testimony

and the other evidence that Milner delivered the silver to Schroeder and Boegeman's

address that day and Boegeman signed for the delivery. Goll's testimony that Boegeman

previously had explained to him the criminal scheme of ordering silver, not signing a

confirmation of delivery slip when silver was delivered, and then claiming the silver had

not been delivered eliminates any reasonable possibility that a juror might have had

reasonable doubt as to whether Boegeman conspired with Schroeder to steal Gannon's

silver and signed for the delivery of the silver with the intent of stealing it.

       We conclude that given the evidence in this case, no rational juror properly

instructed on the elements of aiding and abetting would have found that Boegeman did

not know Schroeder intended to commit theft by false pretenses, or that he knew of

Schroeder's criminal purpose but did not sign for the silver with the intent of helping

committing, facilitating, or encouraging Schroeder's commission of the crime. There was

simply no evidence to support a finding that Boegeman was ignorant of any plan to steal

Gannon's silver by receiving it and then claiming it was not delivered. Accordingly, any

error by the court in failing to instruct the jury on the elements of aiding and abetting was

harmless beyond a reasonable doubt.

                                               11
                               II. Theft by Larceny Theory

       Boegeman contends the court violated his Fourteenth Amendment right to due

process by instructing the jury on the invalid theory that he committed theft by larceny as

a direct perpetrator. Boegeman argues that because Gannon was not the legal owner of

the silver when Boegeman allegedly signed for and received the silver, theft by larceny is

a legally invalid theory.5

       We independently review issues relating to the validity of jury instructions.

(People v. Burch (2007) 148 Cal.App.4th 862, 870.) The court instructed the jury on

theft by larceny in accordance with CALCRIM No. 1800 as follows: "To prove that the

defendant is guilty of [theft by larceny], the People must prove that: [¶] 1. The

defendant took possession of property owned by someone else; [¶] 2. The defendant

took [the] property without the owner's or owner's agent's consent; [¶] 3. When the

defendant took the property he intended to deprive the owner of it permanently or to



5      Boegeman's claim of error challenges not so much the theory that he was a direct
perpetrator as the theory that he committed a theft by larceny. As noted, the People's
respondent's brief in places expresses the view that Boegeman's participation in the
alleged conspiracy to commit theft by false pretenses made him a direct perpetrator. For
example, the People state that "the prosecutor only argued that appellant was a direct
perpetrator[,]" and that "[t]he trial record demonstrated that appellant acted—and was
only prosecuted—as a direct perpetrator." However, the People in other places
differentiate between Boegeman's being a conspirator and a direct perpetrator, for
example stating that "[t]he prosecutor only argued and presented evidence that appellant
was a direct perpetrator of theft by larceny or that he conspired with Schroeder to commit
theft by false pretenses[,]"and that "[t]he prosecutor only argued that appellant was either
a direct perpetrator or a conspirator[.]"




                                            12
remove it from the owner['s] or owner's agent's possession for so extended a period of

time that the owner would be deprived of a major portion of the value or enjoyment of

the property; [¶] 4. The defendant moved the property, even a small distance, and kept

it for any period of time, however brief."

       The court also instructed the jury on theft by false pretenses in accordance with

CALCRIM No. 1804, in relevant part, as follows: "The defendant is charged in Count 1

with grand theft by false pretense in violation of Penal Code section 487. [¶] To prove

the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant

knowingly and intentionally deceived a property owner or the owner's agent by false or

fraudulent representation or pretense; [¶] 2. The defendant did so intending to persuade

the owner or the owner's agent to let the defendant or another person take possession and

ownership of the property; [¶] AND [¶] 3. The owner let the defendant or another

person take possession and ownership of the property because the owner or the owner's

agent relied on the representation or pretense."

       The theory that Boegeman committed theft by larceny is invalid because the trial

evidence supported only the prosecution's main theory that Boegeman participated in a

theft by false pretenses. Because the crime of theft by false pretenses was completed

before the silver was delivered to Boegeman and Schroeder, the silver could not later

become the subject of a theft by larceny upon delivery.

       In People v. Williams (2013) 57 Cal.4th 776 (Williams), the California Supreme

Court explained that "theft by false pretenses, unlike larceny, has no requirement of

asportation. The offense requires only that '(1) the defendant made a false pretense or

                                             13
representation to the owner of property; (2) with the intent to defraud the owner of that

property; and (3) the owner transferred the property to the defendant in reliance on the

representation.' [Citation.] The crime of theft by false pretenses ends at the moment title

to the property is acquired . . . ." (Id. at p. 787, second italics added.) Consequently, a

completed theft by false pretenses "cannot become robbery by the defendant's later use of

force or fear." (Ibid.)

       In this case, the theft by false pretenses ended the moment title to the silver passed

to Schroeder. Under the law governing shipment contracts, title passed to Schroeder

when Gannon shipped the silver. California Uniform Commercial Code section 2401,

subdivision (2) provides, in part, that "[u]nless otherwise explicitly agreed title passes to

the buyer at the time and place at which the seller completes his performance with

reference to the physical delivery of the goods . . . and in particular . . . [¶] (a) If the

contract requires or authorizes the seller to send the goods to the buyer but does not

require him to deliver them at destination, title passes to the buyer at the time and place

of shipment; but [¶] (b) If the contract requires delivery at destination, title passes on

tender there." "Thus, when the parties agree to or contemplate shipment by the seller,

title passes to the buyer upon that shipment, unless the agreement specifically requires the

seller to make delivery at the destination." (California State Electronics Assn. v. Zeos

International Ltd. (1996) 41 Cal.App.4th 1270, 1277.)

       A contract under which the seller takes a telephone order and ships the goods at

the buyer's expense, like Schroeder's contract to purchase silver from Gannon, is



                                              14
presumptively a shipment contract.6 (California State Electronics Assn. v. Zeos

International Ltd., supra, 41 Cal.App.4th at p. 1277.) A shipment contract is regarded as

the normal contract under the Uniform Commercial Code; a destination contract is the

regarded as the variant type. (Wilson v. Brawn of California, Inc. (2005) 132

Cal.App.4th 549, 555 (Wilson).) " 'The seller is not obligated to deliver at a named

destination and bear the concurrent risk of loss until arrival, unless he has specifically

agreed so to deliver or the commercial understanding of the terms used by the parties

contemplates such a delivery.' " (Ibid., quoting Official Comments on U. Com. Code,

Deering's Ann. Cal. U. Com. Code (1999 ed.) foll. § 2503, p. 198.)7

       There was no evidence at trial indicating the contract between Gannon and

Schroeder for the purchase of Gannon's silver was anything other than a standard

shipping contract, under which title to the silver passed to Schroeder when Gannon

shipped the silver. Thus, the uncontroverted evidence established that when Gannon

shipped the silver the theft by false pretenses was complete. The crime could not later

become a theft by larceny when a perpetrator of the theft by false pretenses received and

asported the stolen property.

6      Gannon testified that the total price he charged Schroeder for the silver included
shipping.

7       The Wilson court noted: "Of course, a seller will have to provide the carrier with
shipping instructions. It follows that a contract is not a destination contract simply
because the seller places an address label on the package, or directs the carrier to 'ship to'
a particular destination. 'Thus a "ship to" term has no significance in determining
whether a contract is a shipment or destination contract for risk of loss purposes.' "
(Wilson, supra, 132 Cal.App.4th at p. 155.)

                                              15
       Williams discussed "another significant difference between larceny and theft by

false pretenses. . . . [L]arceny requires a 'trespassory taking,' which is a taking without

the property owner's consent. [Citation.] . . . By contrast, theft by false pretenses

involves the consensual transfer of possession as well as title of property; therefore, it

cannot be committed by trespass." (Williams, supra, 57 Cal.4th at p. 788.) Williams

added that "unlike the offense of larceny by trick, in which a defendant's fraud vitiates the

consent of the victim as a matter of law, the acquisition of title involved in the crime of

theft by false pretenses precludes a trespass from occurring." (Williams, supra, 57

Cal.4th at pp. 788-789, citing and discussing People v. Beaver (2010) 186 Cal.App.4th

107, 121 (Beaver) [in trial of defendant convicted of grand theft for staging an accident at

his place of employment to obtain medical expenses for a preexisting injury, it was

reversible error to instruct the jury on theft by larceny instead of theft by false pretenses

because the employer consented to pay for the defendant's medical treatment; therefore

the defendant did not commit a trespassory taking, and hence did not commit larceny].)

       In the present case, there was no trespassory taking because Schroeder's

acquisition of title precluded a trespassory taking from occurring. In the words of the

Beaver court, "Notwithstanding the fact the offense of theft by false pretenses, like all

other theft offenses, has been consolidated into the single crime of theft as defined in

section 484, the essential elements of the individual theft offenses remain the same.

[Citation.] The present matter did not involve a taking of property from another without

his consent. . . . This was theft by false pretenses, not larceny." (People v. Beaver,

supra, 186 Cal.App.4th at p. 121.)

                                              16
       The evidence in this case supports only the crime of theft by false pretenses, which

was completed when Gannon shipped the silver. It was not possible for Boegeman to

commit theft by larceny against Gannon when the silver was delivered because Gannon

had relinquished both possession and title. The only possible way Boegeman's taking of

the silver from Milner could be a theft by larceny would be if Boegeman had taken the

package with the intent to steal it from Schroeder. However, the prosecution clearly did

not proceed on that theory and did not present any evidence that Boegeman stole the

silver from Schroeder or anyone else other than Gannon.

       This raises the question of whether the theft by larceny theory and jury instruction

was a legally invalid theory, as Boegeman argues, or merely a factually invalid theory.

We conclude the theft by larceny instruction was factually invalid rather than legally

invalid. In People v. Perez (2005) 35 Cal.4th 1219, 1233 (Perez), the California Supreme

Court explained: "The nature of . . . harmless error analysis depends on whether a jury

has been presented with a legally invalid or a factually invalid theory. When one of the

theories presented to a jury is legally inadequate, such as a theory which ' "fails to come

within the statutory definition of the crime" ' [citations], the jury cannot reasonably be

expected to divine its legal inadequacy. The jury may render a verdict on the basis of the

legally invalid theory without realizing that, as a matter of law, its factual findings are

insufficient to constitute the charged crime. In such circumstances, reversal generally is

required unless 'it is possible to determine from other portions of the verdict that the jury

necessarily found the defendant guilty on a proper theory.' [Citation.]



                                              17
       "In contrast, when one of the theories presented to a jury is factually inadequate,

such as a theory that, while legally correct, has no application to the facts of the case, we

apply a different standard. [Citation.] In that instance, we must assess the entire record,

'including the facts and the instructions, the arguments of counsel, any communications

from the jury during deliberations, and the entire verdict.' [Citation.] We will affirm

'unless a review of the entire record affirmatively demonstrates a reasonable probability

that the jury in fact found the defendant guilty solely on the unsupported theory.' "

(Perez, supra, 35 Cal.4th at p. 1233, italics added.)

       In People v. Guiton (1993) 4 Cal.4th 1116 (Guiton), the California Supreme Court

explained: "If the inadequacy of proof is purely factual, of a kind the jury is fully

equipped to detect, reversal is not required whenever a valid ground for the verdict

remains, absent an affirmative indication in the record that the verdict actually did rest on

the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when

the facts do not state a crime under the applicable statute, . . . the . . . rule requiring

reversal applies, absent a basis in the record to find that the verdict was actually based on

a valid ground." (Id. at p. 1129.)

       Here, the improperly presented theft by larceny theory was not legally invalid—

i.e., it was not a case where the facts do not state a crime under the applicable statute.

The jury could apply the facts of the delivery literally to the larceny instruction and

conclude the elements of larceny were satisfied, not knowing that Boegeman's taking the

package from Milner could not constitute a theft by larceny from Gannon because



                                                18
Gannon consented to pass title to Schroeder, and the crime of theft by false pretenses was

complete when he did so by shipping the silver.

       The larceny theory presented in this case is more accurately viewed as being

"factually inadequate"—i.e., "a theory that, while legally correct, has no application to

the facts of the case . . . ." (Perez, supra, 35 Cal.4th at p. 1233.) The prosecutor in

closing argument told the jury there were two theories of theft and stated: "Now, these

two theories are theft by larceny and theft by false pretenses. The one that's supported by

the evidence is theft by false pretenses. But you can also get to theft by larceny."8

(Italics added.) Thus, the prosecutor essentially admitted in the italicized statement that

the theory of theft by larceny was factually inadequate.

       Error in giving an instruction that is a correct statement of law but has no

application to the facts of the case is an error of state law subject to the harmless error test

set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Guiton, supra, 4

Cal.4th at pp. 1129-1130.) "Under Watson, reversal is required if it is reasonably

probable the result would have been more favorable to the defendant had the error not

occurred." (Guiton, at p. 1130.) In cases where the jury was presented a factually

inadequate theory along with one or more factually adequate theories, "the appellate court

should affirm the judgment unless a review of the entire record affirmatively




8       The prosecutor told the jury they did not have to agree on the theory of theft, only
that a theft happened.

                                              19
demonstrates a reasonable probability that the jury in fact found the defendant guilty

solely on the unsupported theory." (Ibid.)

       Our review of the entire record compels the conclusion that presentation of the

factually invalid larceny theory was not prejudicial under the Guiton test because it is not

reasonably probable that the jury found the Boegeman guilty on solely that theory. It is

far more likely that the jury convicted him as a conspirator in a theft by false pretenses,

which was the prosecution's main theory. As the prosecutor correctly stated in closing

argument, "The [theory] that's supported by the evidence is theft by false pretenses."9

              III. Admission of the FedEx Delivery Confirmation Document

       Boegeman contends the trial court abused its discretion in admitting the FedEx

document showing the delivery of Gannon's silver to Schroeder and Boegeman's

residence under the business records exception to the hearsay rule. We disagree.

       When the prosecutor initially introduced the FedEx confirmation of delivery

document during his examination of Gannon, Boegeman's counsel objected on the

grounds of lack of foundation, speculation, and hearsay. The court sustained "the

objection" pending further argument on the admissibility of the document in chambers.

Later in chambers, the court stated the document "qualifies as a business record assuming

foundation can be laid for it." Defense counsel objected that the document did not

qualify as a business record under Evidence Code section 1271. The prosecutor argued


9      The prosecutor's argument regarding theft by false pretenses spans nine pages of
the reporter's transcript; his argument regarding theft by larceny covers less than one
page.

                                             20
the document had been authenticated by Gannon and was "not being offered for the truth

of the matter asserted." The court allowed the prosecutor to introduce the document and

stated that the jury could determine whose signature was on the document.

       We review the trial court's rulings on the admissibility of evidence for abuse of

discretion. (People v. Riggs (2008) 44 Cal.4th 248, 290.) A trial court has "wide

discretion in determining whether sufficient foundation is laid to qualify evidence as a

business record. On appeal, evidence of that discretion can be overturned only upon a

clear showing of abuse." (People v. Lugashi (1988) 205 Cal.App.3d 632, 638-639.)

       We conclude the court acted within its discretion in admitting the delivery

confirmation document under the business records exception to the hearsay rule.

Evidence Code section 1271 provides that "[e]vidence of a writing made as a record of an

act, condition, or event is not made inadmissible by the hearsay rule when offered to

prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of

a business; [¶] (b) The writing was made at or near the time of the act, condition, or

event; [¶] (c) The custodian or other qualified witness testifies to its identity and the

mode of its preparation; and [¶] (d) The sources of information and method and time of

preparation were such as to indicate its trustworthiness."

       After Gannon testified that the delivery confirmation document was the one he

received from FedEx, Milner testified that he recognized the document as a printout of

the signature that was given to him for the package he delivered to Schroeder and

Boegeman's apartment on April 26, 2014, and that information on the document was

contained in his PDA (personal digital assistant device). The information included the

                                              21
delivery address and the date and time the delivery was made.10 Milner testified that the

information on a delivery confirmation document is automatically entered into his PDA

as soon as he scans a package upon delivery.

       Milner's testimony about the subject delivery confirmation document satisfied the

requirements of Evidence Code section 1271. Milner's testimony established that the

document was made in the regular course of his business as a FedEx delivery driver, and

that the document was created at the time of the delivery of the package in question to

Boegeman and Schroeder's apartment. Milner was qualified to testify about the identity

of the document and the mode of its preparation, and his testimony about the source of

the information on the document and method and time of the document's preparation

(scanning the package with his PDA upon delivery) was sufficient to indicate the

document's trustworthiness. (See Dauenhauer v. Columbia River Bank (D. Or., Feb. 22,

2012, No. 3:11-CV-1436-ST) [2012 U.S. Dist. LEXIS 57966] [because confirmation

receipts from the United States Postal Service are routinely admitted under the public

agency record exception to the hearsay under federal rules of evidence, "[d]elivery

confirmation receipts from businesses performing similar functions to the USPS, such as

FedEx or UPS, also should be sufficiently trustworthy to be admissible."].) The court did

not abuse its discretion in admitting the delivery confirmation document under the

business records exception to the hearsay rule.



10     The delivery confirmation document identifies "David Schroeder" as the recipient
of the package and states "Signed for by: DSHROEDER [sic]." The signature on the
document is illegible.
                                            22
                                 DISPOSITION

     The judgment is affirmed.




                                               O'ROURKE, J.

WE CONCUR:


HUFFMAN, Acting P. J.


NARES, J.




                                     23
