Filed 6/18/13
                      CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                       DIVISION ONE


THE PEOPLE,
        Plaintiff and Respondent,
                                                     A133591
v.
HOANG V. NGUYEN,                                     (San Francisco City & County
                                                     Super. Ct. No. 00214256)
        Defendant and Appellant.


        Defendant Hoang V. Nguyen was convicted of burglary after he was found by an
electronics store security guard to have exchanged more expensive laptop computers for a
less expensive printer in the printer’s box. In instructing the jury on theft, the trial court
instructed only on the elements of theft by larceny. Defendant argues his intended crime
was not larceny but, if anything, theft by false pretenses. Because the jury was not
instructed on the elements of theft by false pretenses, he contends, his convictions must
be reversed. He also contends the trial court erred in denying a purported Marsden1
motion and in calculating custody credits. Because we find substantial evidence to
support a conviction for attempted theft by larceny and reject defendant’s other
contentions, we affirm.
                                    I. BACKGROUND
        Defendant was charged in an amended information, filed May 20, 2011, with
second degree burglary (Pen. Code, § 459) and attempted grand theft (Pen. Code, §§ 487,


        *
         Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.C. and II.D.
        1
            People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
subd. (a), 664). Defendant was alleged to have served one prior prison term. (Pen. Code,
§ 667.5, subd. (b).)
       Defendant entered an electronics store and walked to the computer department.
One of the store’s loss prevention officers, Angel Gonzalez, saw defendant open a box,
place something under it, and leave the store. When Gonzalez checked the aisle where
defendant had been, he found a printer that had been removed from its box and placed on
a bottom shelf behind other items, but he was unable to locate a corresponding empty
printer box. Gonzalez took the printer, which retailed for about $100, to the front of the
store. Soon after, defendant reentered the store. Gonzalez watched on a security camera
as defendant returned to the computer department. He saw defendant pick up an opened
box and bring out a roll of tape from inside his jacket. At this Gonzalez left his station to
confront defendant. When he arrived, Gonzalez found defendant in the process of sealing
a printer box. Looking inside, Gonzalez found two laptop computers, which retailed for
$450 each. Because of the positioning of the computers in the box, it would have been
difficult to tell from the outside that they had been substituted for the cheaper printer.
Defendant was detained and arrested.
       The trial court instructed the jury on burglary and attempted grand theft by larceny
pursuant to CALCRIM Nos. 460, 1800, and 1801. As given by the court, the elements of
theft by larceny were (1) defendant took possession of property owned by someone else,
(2) defendant took that property without the owner’s consent, (3) when defendant took
the property he intended to deprive the owner of it permanently, and (4) defendant moved
the property and kept it for a period of time.
       During deliberations, the jury sent a note asking, “Are theft and defraud the same?
Meaning, because his intent to pay for a lesser item, is that the definition of theft?” The
court responded, “Members of the jury, please refer to instruction number 1800. The
owner’s consent cannot be obtained by fraud or deceit.” The court explained to counsel,
“The Court extrapolated that language from the theft-by-trick instruction. I declined to
give the entire theft-by-trick instruction, but I thought that portion was appropriate in the
context of this case.”


                                                 2
       Defendant was found guilty of burglary and the lesser included offense of
attempted petty theft, and the court later found the prior prison term allegation to be true.
At sentencing, the court dismissed the attempted petty theft conviction and sentenced
defendant to a term of four years on the burglary charge.
       On the evening after his conviction, defendant sent a letter to the judge, penned by
another inmate, complaining his counsel “did little, if anything whatsoever to defend me
in my trial” and did not advise him about the risks of trial, instead telling defendant to
fight the case because he had a strong defense. Construing the letter as a request for new
counsel under Marsden, supra, 2 Cal.3d 118, the trial court held a hearing and asked
defense counsel for a response. Counsel essentially denied the claims, explaining he
always advises his clients about the risks of going forward to trial. Defense counsel also
denied defendant’s charge, made during the hearing, that he did not convey the
prosecution’s plea offer. During his explanation, counsel noted that all of his
conversations with defendant had occurred in English, rather than defendant’s native
Vietnamese, and speculated this might have resulted in a miscommunication. Somewhat
in contradiction, counsel explained defendant’s English skills were sufficiently good that
“it never occurred” to him defendant might need an interpreter. Based on its observations
during trial, the court agreed defendant “has quite a lot of skill in English.” It then denied
appointment of new counsel, concluding, “I don’t find that there is anything that counsel
has done that would warrant his being removed or replaced as counsel.”
       Two weeks later, defendant caused another, similar letter to be written to the court,
insisting he was never told of a plea offer. Finding the charges identical to those resolved
earlier, the court denied relief without a hearing.




                                              3
                                     II. DISCUSSION
A. Substantial Evidence to Support the Burglary Conviction
       Defendant contends the evidence did not support a burglary conviction based on
intent to commit larceny, the theory of theft on which the jury was instructed.2 He argues
the evidence supports a conclusion he intended to commit, if anything, theft by false
pretenses by disguising the laptop computers in the printer box, paying the stated price
for the printer at the sales counter, and, contrary to the theory of larceny, “tak[ing] the
laptops from the store with consent.” We review defendant’s conviction for substantial
evidence to support each of the elements of intent to commit theft by larceny. (People v.
Livingston (2012) 53 Cal.4th 1145, 1172.)
       The statutory crime of theft is comprised of several different common law crimes,
including embezzlement, theft by larceny, theft by trick or device, and theft by false
pretenses. (People v. Nazary (2010) 191 Cal.App.4th 727, 740 (Nazary); People v.
Cuellar (2008) 165 Cal.App.4th 833, 837.) In 1927, these common law crimes were
consolidated in Penal Code section 484 into a single statutory crime. (People v. Gomez
(2008) 43 Cal.4th 249, 255, fn. 4.) “The purpose of the consolidation was to remove the
technicalities that existed in the pleading and proof of these crimes at common law.
Indictments and informations charging the crime of ‘theft’ can now simply allege an
‘unlawful taking.’ [Citations.] Juries need no longer be concerned with the technical
differences between the several types of theft, and can return a general verdict of guilty if
they find that an ‘unlawful taking’ has been proved.” (People v. Ashley (1954) 42 Cal.2d
246, 258.)
       The simplification envisioned by the Legislature has not been entirely realized.
Rather than following the lead of the Legislature and collapsing the disparate theories of
theft into a single crime, the courts have maintained their separate existence. As noted in
Nazary, “ ‘[a]lthough the offense of theft has been substituted for the offenses of larceny,


       2
        A person who enters a building with the intent to commit theft is guilty of
burglary. (See People v. Parson (2008) 44 Cal.4th 332, 354.)


                                              4
embezzlement and obtaining money or property by false pretenses, no elements of the
former crimes have been changed. The elements of the former offenses of embezzlement
and larceny and the distinction between them’ continue to exist.” (Nazary, supra,
191 Cal.App.4th at p. 741.) Perhaps as a result, Ashley’s anticipated general jury verdict
of “unlawful taking” has never materialized. Reported decisions suggest juries continue
to be instructed on the elements of the individual theories, rather than being asked to
render a general verdict of theft. Further complicating matters, the trial judge must
instruct on the proper theory of theft, since “the [theft] offense shown by the evidence
must be one on which the jury was instructed and thus could have reached its verdict.” 3
(People v. Curtin (1994) 22 Cal.App.4th 528, 531.) While technicalities of pleading may
have been eliminated by the consolidation, the technicalities of proof remain.
       The separate theories of theft are largely “aimed at different criminal acquisitive
techniques.” (People v. Ashley, supra, 42 Cal.2d at p. 258.) Theft by larceny, the theory
on which the trial court instructed the jury, “is committed by every person who (1) takes
possession (2) of personal property (3) owned or possessed by another, (4) by means of
trespass and (5) with intent to steal the property, and (6) carries the property away.
[Citations.] The act of taking personal property from the possession of another is always
a trespass unless the owner consents to the taking freely and unconditionally or the taker
has a legal right to take the property.” (People v. Davis (1998) 19 Cal.4th 301, 305, fn.
omitted (Davis).) Because possession of the stolen item must be gained without the
owner’s consent, larceny is classically a crime of stealth. Given the “carrying away”
requirement, known as “asportation,” it necessarily applies to the theft of tangible items.
Embezzlement is characterized by the wrongful taking of property voluntarily entrusted.
It therefore features acquisition by breach of trust. (People v. Sisuphan (2010)
181 Cal.App.4th 800, 813–814.)



       3
        This principle has been the subject of recent controversy. (Compare People v.
Fenderson (2010) 188 Cal.App.4th 625, 637; People v. Beaver (2010) 186 Cal.App.4th
107, 125.)


                                              5
       The two remaining theories, theft by trick or device and theft by false pretenses,
are crimes of deception, involving the taking of property of another after consent to its
possession has been obtained by fraud or deceit. The two are nearly identical in
substance, except that with theft by trick, the property owner transfers, and intends to
transfer, only possession, whereas with theft by false pretenses the owner transfers both
possession and ownership. (People v. Traster (2003) 111 Cal.App.4th 1377, 1387.) In
addition, a conviction for theft by false pretenses is generally held to have “a special
corroboration requirement” not applicable to theft by trick or device. (People v. Curtin,
supra, 22 Cal.App.4th at p. 531; see People v. Beaver, supra, 186 Cal.App.4th at p. 123;
People v. North (1982) 131 Cal.App.3d 112, 118 [“The necessity of corroboration
distinguishes false pretenses from trick and device”].) Although theft by trick or device
and false pretenses are often applied to the taking of money or intangibles, which are less
susceptible of asportation,4 the elements of the two offenses do not limit their application
to intangibles. (See Perry v. Superior Court (1962) 57 Cal.2d 276, 283 [elements of theft
by false pretenses not restricted to any particular type of property].)
       Perhaps inevitably, decisions have eroded the distinctions between the various
crimes of theft. It is generally held that a theft victim’s consent to a taking negates
larceny only if that consent is freely and unconditionally given. (Davis, supra, 19 Cal.4th
at p. 305; People v. Brock (2006) 143 Cal.App.4th 1266, 1275.) As a result, consent
obtained by force, duress, or fraud is ineffective. (Davis, at p. 305 & fn. 3; People v.
Brock, at p. 1275.) Consent obtained by fraud, however, is also the essence of theft by
trick and device and false pretenses. If consent obtained by fraud is, for purposes of
larceny, the same as no consent at all, every theft by false pretenses that involves an
asportation is also larceny.



       4
         See, e.g., People v. Ashley, supra, 42 Cal.2d at pages 258–259 (theft by false
pretenses of cash); People v. Bell (2011) 197 Cal.App.4th 822, 827–828 (theft by false
pretenses of a leasehold interest); People v. Beaver, supra, 186 Cal.App.4th at page 121
(theft of medical services).


                                              6
       The concept of valid consent was further narrowed in our particular context of
retail transactions by Davis. In that decision, the defendant was convicted of larceny
after taking a shirt from its hanger in a department store, carrying it to the sales counter,
claiming to have purchased it earlier, and requesting a refund. (Davis, supra, 19 Cal.4th
at p. 303.) In affirming the conviction, the court held that the defendant took possession
of the shirt by removing it from the hanger while still in the store and satisfied the
asportation requirement by carrying the shirt to the sales counter. (Id. at p. 305.) The
court found trespass merely in the defendant’s taking the shirt from a hanger with the
intent to steal it. Although recognizing department stores are ordinarily presumed to
consent to customers’ carrying items for sale within the store, Davis found no consent to
such transport if committed with a larcenous intent: “[A] self-service store . . . impliedly
consents to a customer’s picking up and handling an item displayed for sale and carrying
it from the display area to a sales counter with the intent of purchasing it; the store
manifestly does not consent, however, to a customer’s removing an item from a shelf or
hanger if the customer’s intent in taking possession of the item is to steal it.”5 (Davis, at
p. 306.)
       The foregoing discussion reveals the two flaws in defendant’s argument. First,
although he claims to have intended “to take the laptops from the store with consent” by
paying the lower price for the printer, the store would not be deemed to have “consented”
to defendant’s taking the laptops, at least for purposes of the law of larceny, merely
because store employees permitted him to leave the store with them. Rather, under the
narrow view of retail consent found in Davis, a customer has implied consent to take


       5
         People v. Shannon (1998) 66 Cal.App.4th 649, a decision issued two months
prior to Davis, reached the same conclusion on the same facts. As Shannon noted, “one
need not remove property from the store to be convicted of theft of the property from the
store. [Citations.] One need only take possession of the property, detaching it from the
store shelves or other location, and move it slightly with the intent to deprive the owner
of it permanently.” (Id. at p. 654.) The court concluded “the theft was complete when
[the defendant] put the clothes in his bag with the intent to fraudulently obtain money for
them by falsely exchanging them for their monetary value.” (Id. at p. 656.)


                                              7
items from the shelf only if he or she does so with honest intent.6 (Davis, supra,
19 Cal.4th at p. 306.) Accordingly, defendant satisfied the elements of larceny by
picking up the laptop computers and placing them in the empty printer box with the intent
of taking them from the store without paying the full laptop price. Defendant did not
merely attempt or intend to commit larceny, which would have been sufficient to satisfy
the elements of the charged offenses; under Davis, he could have been convicted of the
completed crime.
       Second, this is not an “either/or” situation. Defendant could have intended to
commit both offenses, since the theories are not mutually exclusive. Particularly given
the narrow definition of “consent” courts have adopted in connection with larcenous
conduct, the use of deception, rather than stealth, to steal tangible objects—that is,
objects that can be “asported”—can qualify both as theft by larceny and false pretenses.
The narrow view of retail store consent adopted by Davis creates a similar overlap in that
context. Defendant cites no decisions holding that conduct constituting theft must qualify
under only a single legal theory. On the contrary, several decisions have found the same
conduct to constitute theft under more than one common law theory. (E.g., Nazary,
supra, 191 Cal.App.4th at pp. 741–742 [same conduct constitutes both embezzlement and
theft by larceny]; People v. Fenderson, supra, 188 Cal.App.4th at p. 641 [same]; People
v. Cuccia (2002) 97 Cal.App.4th 785, 796–797 [same conduct constitutes both theft by
false pretenses and embezzlement].)
       In support of his argument, defendant relies primarily on People v. Lorenzo (1976)
64 Cal.App.3d Supp. 43, in which the defendant was found to have committed theft by
false pretenses when he switched price tags on retail goods. (Id. at p. Supp. 45.) While
Lorenzo supports the argument that defendant’s intended conduct satisfied the elements
of theft by false pretenses, the decision does not hold that the same conduct could not



       6
        Davis unquestionably refutes the core of defendant’s argument, which is, as
defendant puts it, “if [he] had paid for the printer at the checkout stand and departed with
the box and its contents, he would have done so with the consent of the store.”


                                              8
also constitute theft by larceny, since larceny was neither raised nor addressed in
Lorenzo.
       Because defendant’s conduct satisfied the elements of theft by larceny as defined
by the Supreme Court in Davis, the jury’s implicit finding that defendant entered the
store with the intent to commit theft, and therefore his conviction for burglary, was
supported by substantial evidence. Whether his conduct also constituted an attempt to
commit theft by false pretenses is immaterial to that issue.
B. Failure to Instruct on Theft by False Pretenses
       Defendant contends the trial court erred in instructing the jury on the wrong theory
of theft. We rejected the premise for this argument in the preceding section by holding
that his conduct could have constituted theft by larceny. In any event, any such error was
harmless, since an instruction on theft by false pretenses merely would have added
another theory of theft on which the jury could have convicted him. (People v. Traster
(2003) 111 Cal.App.4th 1377, 1390.) Because his conduct satisfied the elements of
attempted theft by larceny, defendant’s right to have a jury find the elements of his crime
was not violated by the omission of an instruction on theft by false pretenses. (Cf. People
v. Beaver, supra, 186 Cal.App.4th at pp. 124–125 [defendant’s jury trial right denied
when his conduct did not constitute larceny and no instruction was given on false
pretenses].)
       Defendant also contends the court’s response to the jury’s question was improper.
For the reasons discussed above, however, the court’s response was a correct statement of
the law. A victim’s valid consent to a taking of his or her property cannot be obtained by
fraud. (People v. Brock, supra, 143 Cal.App.4th at p. 1275.) While the principle was
taken by the trial court from an instruction on theft by trick or device, the same principle
applies to theft by larceny. (Ibid.)
C. Defendant’s Purported Marsden Motions
       Defendant next contends the trial court erred in failing to conduct an adequate
inquiry under Marsden into his claims of ineffective assistance of counsel and in failing
to grant him new counsel.


                                              9
       The need for a Marsden hearing arises “[w]hen a defendant seeks to discharge his
appointed counsel and substitute another attorney, and asserts inadequate representation.”
(People v. Richardson (2009) 171 Cal.App.4th 479, 484.) A request for substitution of
appointed counsel can be made both before and after trial. “[T]he standard expressed in
Marsden and its progeny applies equally preconviction and postconviction.” (People v.
Smith (1993) 6 Cal.4th 684, 694 (Smith).)
       When an appropriate request is made, “ ‘the trial court must permit the defendant
to explain the basis of his contention and to relate specific instances of [the attorney’s]
inadequate performance.’ ” (People v. Streeter (2012) 54 Cal.4th 205, 230.) “ ‘ “A
defendant is entitled to relief if the record clearly shows that the appointed counsel is not
providing adequate representation or that defendant and counsel have become embroiled
in such an irreconcilable conflict that ineffective representation is likely to result.” ’
[Citation.] . . . [¶] ‘We review the denial of a Marsden motion for abuse of discretion.’
[Citation.] ‘Denial is not an abuse of discretion “unless the defendant has shown that a
failure to replace counsel would substantially impair the defendant’s right to assistance of
counsel.” ’ ” (Ibid.)
       “Although no formal motion is necessary [to trigger the obligation to conduct a
hearing under Marsden], there must be ‘at least some clear indication by defendant that
he wants a substitute attorney.’ ” (People v. Mendoza (2000) 24 Cal.4th 130, 157; see
also People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.) In People v. Sanchez (2011)
53 Cal.4th 80, the Supreme Court addressed the common practice of appointing
“conflict” counsel when a Marsden request is made. In the course of its decision, the
court reiterated that a Marsden hearing is required only when “there is ‘at least some
clear indication by defendant,’ either personally or through his current counsel, that
defendant ‘wants a substitute attorney.’ ” (Sanchez, at pp. 89–90.) In a footnote, the
court expressly disapproved a series of cases decided by the appellate court to the extent
they “incorrectly implied that a Marsden motion can be triggered with something less
than a clear indication by a defendant” or his counsel that the defendant “ ‘wants a
substitute attorney.’ ” (Id. at p. 90, fn. 3.) In these disapproved cases, the court had


                                              10
implicitly, if not explicitly, held that a defendant’s expressed desire to make a new trial
motion or motion to withdraw a plea on the basis of claimed ineffective assistance of
counsel, without more, should be treated as triggering Marsden hearing requirements.
(E.g., People v. Mejía (2008) 159 Cal.App.4th 1081, 1086.)
       With that background, we find several grounds for rejecting defendant’s claim.
First, although the trial court sua sponte inquired into counsel’s performance, it had no
duty to do so under Marsden because defendant never gave “a clear indication” that he
wanted to replace his appointed counsel. On the contrary, defendant never suggested he
wanted a new attorney. In his first letter he merely contended that counsel had rendered
inadequate assistance; he made no request for any specific relief. In the second letter,
defendant asked for leniency in sentencing, not for new counsel. Defendant’s failure to
request substitute counsel, or even to suggest he wanted a new attorney, rendered
Marsden inapposite.
       Second, we find no error in the trial court’s conduct of the hearing. Defendant
contends the court should have more carefully explored the possibility that a language
barrier caused him to misunderstand his attorney’s advice. In the letters and at the
hearing, however, defendant never suggested he could not understand his attorney. At
that time, his claim was that counsel failed to inform him of various things, a claim that
presupposes his ability to understand the things he was told. The notion that defendant
might not have understood arose not with defendant but with his counsel, who made clear
he was merely speculating. Further, counsel immediately refuted his own speculation,
telling the court there was no indication in his conversations with defendant that he had
not been understood. The court then noted, based on its own observations, that defendant
had skill in the use of English, further undermining any basis for counsel’s speculation.
Because this issue was never asserted by defendant, the necessary evidentiary predicate
was never created, and the trial court did not abuse its discretion in failing to inquire
further on this topic. Nor was there any evidentiary basis for finding counsel failed to
render effective assistance for this reason.



                                               11
       Third, defendant has not demonstrated the failure to appoint substitute counsel
“substantially impair[ed]” his Sixth Amendment right to counsel. (People v. Streeter,
supra, 54 Cal.4th at p. 230.) At the time defendant raised the issue of inadequate
representation, he had already been convicted. Counsel’s only remaining task was to
represent defendant in sentencing proceedings, and there is no indication counsel did not
adequately perform this task. Defendant contends he was prejudiced if he did not
understand counsel’s discussion of the plea offer, but any such prejudice was not a result
of the failure to grant a request for new counsel. It occurred, if at all, well prior to the
purported Marsden hearing. Accordingly, any error under Marsden was harmless.
D. Presentence Custody Credits
       Defendant contends he was improperly denied day-for-day custody credits under
Penal Code section 4019 because (1) his conviction for a serious crime, which was the
basis for denying him such credits, was not pleaded and proven by admissible evidence;
and (2) the 2011 amendment of section 4019 granting such credits to all defendants
should be applied retroactively.
       Since the filing of defendant’s opening brief, both issues have been resolved
against him as a matter of law by the Supreme Court. (See People v. Lara (2012)
54 Cal.4th 896, 906–907 [pleading and proof unnecessary]; People v. Brown (2012)
54 Cal.4th 314, 325, 330 [retroactivity].) Defendant does not contend otherwise in his
reply brief.




                                              12
                                 III. DISPOSITION
     The judgment of the trial court is affirmed.




                                               _________________________
                                               Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




                                          13
Trial Court: San Francisco City and County Superior Court

Trial Judge: Hon. Carol Yaggy

Counsel:

Charles Marson, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Gerald A. Engler, Assistant Attorney General, Stan Helfman and Christopher J. Wei,
Deputy Attorneys General Plaintiff and Respondent.




                                          14
