Filed 10/16/15 P. v. Dear CA3
                                           NOT TO BE PUBLISHED
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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C076098

                   Plaintiff and Respondent,                                   (Super. Ct. No. 62-121699A)

         v.

BONNIE DIANNE DEAR,

                   Defendant and Appellant.




         A jury found defendant Bonnie Dianne Dear guilty of embezzlement of a vehicle,
a U-Haul truck, in violation of Vehicle Code section 10855 (count one) and possession of
brass knuckles in violation of Penal Code1 section 21810 (count two). In a bifurcated
proceeding, defendant admitted serving one prior prison term. (§ 667.5, subd. (b).) The
trial court sentenced defendant to an aggregate term of four years eight months in state




1   Further undesignated statutory references are to the Penal Code.

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prison, consisting of the upper term of three years for embezzlement, a consecutive eight
months (one-third the middle term) for possessing the brass knuckles, and a consecutive
one year for the prior prison term.
       Defendant appeals, contending the trial court prejudicially erred in instructing the
jury on embezzlement, and she was denied her right to a fair trial because the jury was
inadvertently provided verdict forms related to the prior prison term allegation. With
respect to the alleged instructional error, defendant argues in her opening brief that the
trial court erred in (1) instructing the jury that it “ ‘may presume that the defendant
embezzled the vehicle’ ” if it made certain findings, and (2) failing to instruct the jury
that embezzlement of a vehicle requires a specific intent to steal.
       As previously mentioned, defendant was convicted of embezzlement of a vehicle
in violation of Vehicle Code section 10855, which provides: “Whenever any person who
has leased or rented a vehicle wilfully and intentionally fails to return the vehicle to its
owner within five days after the lease or rental agreement has expired, that person shall
be presumed to have embezzled the vehicle.” The jury instruction on embezzlement was
based on Vehicle Code section 10855 and not Penal Code section 503, which defines
embezzlement. We directed the parties to submit supplemental letter briefs addressing
the following: “(1) does Vehicle Code section 10855 set forth a substantive criminal
offense; and (2) if not, what crime, if any, did defendant commit by failing to return the
U-Haul.” Having reviewed the supplemental letter briefs, we shall conclude that Vehicle
Code section 10855 does not set forth a substantive criminal offense, and that although
defendant received fair notice that she was being prosecuted for embezzlement of a
vehicle, the jury was not properly instructed on the elements of that offense.
Accordingly, we shall reverse defendant’s embezzlement conviction, affirm her
remaining conviction, and remand the matter to the trial court with directions to permit
the People to retry defendant on the embezzlement charge should they elect to do so.



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                   FACTUAL AND PROCEDURAL BACKGROUND
       A. The Prosecution’s Case
       At 2:30 p.m. on April 23, 2013, defendant rented a truck from U-Haul in Auburn.
The truck was due back 24 hours later. The truck was not returned on its due date, and
U-Haul made various attempts to contact defendant by telephone, mail, and driving by
the address she provided. The general manager of the U-Haul location where defendant
rented the truck recalled speaking to someone named “Jeremy” who said he would
attempt to get a message to defendant.
       On May 14, 2013, at approximately 4:36 a.m., Andrew Bonner, a police officer for
the City of Roseville, stopped a U-Haul truck after he was unable to trace its license
plate. Defendant was a passenger in the truck, which was being driven by her friend.
Defendant told Bonner that she had rented the U-Haul the previous month, ended up
going out of town, and did not get around to returning it. She also indicated that her
friends had been using it. She recalled getting a letter from U-Haul, but did not
remember what it said.
       Officer Bonner contacted U-Haul and was told the truck had been rented on April
23, 2013, for a 24-hour period, and was 20 days overdue.
       Officer Bonner searched the truck and found a pair of brass knuckles on the floor
board on the passenger side of the truck. Defendant said the brass knuckles belonged to
her, explaining that she had them for protection because she had weak hands and suffered
from carpal tunnel syndrome.
       The U-Haul was stopped within 10 miles of the U-Haul location where it was
rented. One of the characters of the truck’s equipment number was missing. It was later
determined that the truck had a valid license plate.
       B. The Defense
       Defendant testified on her own behalf at trial. She admitted four prior felony
convictions, two from 2004, one from 2007, and another from 2008. Thereafter, she

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testified that she rented the U-Haul for her friend, Dave, who was being kicked out of his
apartment and in danger of losing all of his belongings. She met him at a friend’s house
six days earlier while she was high on methamphetamine. She assumed that he would
return the truck later that day or evening because he had to be out of his apartment by
6:00 a.m. the following morning. About a week before she was stopped by Officer
Bonner, her brother Jeremy advised her that the truck had not been returned. At that
point, defendant attempted to ascertain the truck’s location. After learning that Dave was
living out of the truck on some property in Colfax, she went to the property, contacted
Dave, removed his belongings from the truck, and was on her way to return the truck
when she was stopped by Officer Bonner one exit away from the U-Haul rental location.
        Defendant lied and told the officer the brass knuckles belonged to her to protect
the driver who was on parole. She was under the influence of methamphetamine at the
time.
                                        DISCUSSION
                                             I
     The Trial Court Prejudicially Erred in Failing to Instruct the Jury on Each of the
                               Elements of Embezzlement
        Defendant contends the trial court erred in failing to instruct the jury on each of
the elements of embezzlement. We agree.
        Defendant was charged in a felony complaint with embezzlement of a vehicle as
follows: “On or about May 14, 2013, in the County of Placer, the crime of
EMBEZZLEMENT OF AN AUTOMOBILE, in violation of Vehicle Code section
10855, a felony, was committed by BONNIE DIANNE DEAR, who did willfully and
unlawfully rented [sic] a certain vehicle, to wit, U-Haul trailer, then and there the
personal property of U-Haul, and failed to return said vehicle, within the agreed upon
return date.”




                                               4
       The trial court instructed the jury on the charge of embezzlement in pertinent part
as follows:
       “The defendant is charged in Count 1 with willfully and unlawfully failing to
return a U-Haul trailer within five days after the [lease or] rental agreement expired, in
violation of Vehicle Code section 10855.
       “To prove that the defendant is guilty of this crime, the People must prove that:
       “1. The defendant leased or rented a vehicle from U-Haul; and
       “2. Defendant willfully and intentionally failed to return the vehicle to U-Haul
within five days after the lease [or] rental agreement expired.
       “If you find the defendant failed to return the vehicle to U-Haul within five days
of the lease [or] rental agreement expiration, you may presume that the defendant
embezzled the vehicle. The presumption is rebuttable, not conclusive.
       “A vehicle is a device by which any person or property may be propelled, moved,
or drawn upon a highway, excepting a device moved exclusively by human power or
used exclusively upon stationary rails and tracks.
       “Someone commits an act willfully when he or she does an act willingly or on
purpose.”2
       In her supplemental letter brief, the Attorney General concedes that Vehicle Code
section 10855 does not set forth a substantive criminal offense, but rather establishes a
rebuttable presumption. We accept the concession. (§ 10855; see also People v. McCall
(2004) 32 Cal.4th 175, 186-187 (McCall).) The Attorney General also submits, and




2   During deliberations the jury asked for a “clear definition of the word embezzlement,”
and “the words of the charges.” With respect to the definition of embezzlement, the trial
court instructed the jury in the language of section 503 as follows: “Embezzlement is the
fraudulent appropriation of property by a person to whom it has been intrusted.” As for
the words of the charges, the trial court referred the jury to “jury instruction 10855 for
Count One . . . .” That instruction is quoted above.

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defendant concedes, that defendant received adequate notice that she was being charged
with embezzlement of a vehicle by virtue of the allegations in the complaint. We accept
this concession as well. (People v. Ramirez (2003) 109 Cal.App.4th 992, 999.) As we
shall explain, however, the jury was not properly instructed on the elements of that
offense.
       Section 503 defines embezzlement as “the fraudulent appropriation of property by
a person to whom it has been intrusted.” (§ 503.) The elements of embezzlement are:
(1) the owner, or owner’s agent, entrusted the owner’s property to the defendant; (2) the
owner, or owner’s agent, did so because he trusted the defendant; (3) the defendant
fraudulently appropriated that property for her own benefit; and (4) when the defendant
appropriated the property, she intended to deprive the owner of its use. (§ 503; People v.
Beaver (2010) 186 Cal.App.4th 107, 121.) “ ‘The crime of embezzlement requires the
existence of a “relation of trust and confidence,” similar to a fiduciary relationship,
between the victim and the perpetrator.’ ” (People v. Nazary (2010) 191 Cal.App.4th
727, 742, quoting People v. Wooten (1996) 44 Cal.App.4th 1834, 1845.) “‘An intent to
deprive the rightful owner of possession even temporarily is sufficient . . . . [Citations.]’”
(People v. Nazary, supra, 191 Cal.App.at p. 742, quoting In re Basinger (1988) 45 Cal.3d
1348, 1363-1364.)
       As the Attorney General acknowledges, the trial court’s instructions did not
require the jury to find either the “(1) the existence of a relationship of trust and
confidence between U-Haul and [defendant], . . . [or] (2) the mens rea of fraudulent intent
that is required for the crime of embezzlement.” Rather, the jury was instructed that it
could presume defendant was guilty of embezzlement if it found that she leased the U-
Haul and failed to return it after five days.3




3   CALCRIM No. 1806, which was not given, reads:

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       “An instruction that omits or misdescribes an element of a charged offense
violates the right to jury trial guaranteed by our federal Constitution, and the effect of this




       “Theft by Embezzlement (Pen. Code, §§ 484, 503)

     “The defendant is charged [in Count _____] with [grand/petty] theft by
embezzlement [in violation of Penal Code section 503].

       “To prove that the defendant is guilty of this crime, the People must prove that:

       “1. An owner [or the owner's agent] entrusted (his/her) property to the defendant;

       “2. The owner [or owner's agent] did so because (he/she) trusted the defendant;

       “3. The defendant fraudulently (converted/used) that property for (his/her) own
benefit;

       “AND

       “4. When the defendant (converted/used) the property, (he/she) intended to
deprive the owner of (it/its use).

      “A person acts fraudulently when he or she takes undue advantage of another
person or causes a loss to that person by breaching a duty, trust or confidence.

       “[A good faith belief in acting with authorization to use the property is a defense.]

        “[In deciding whether the defendant believed that (he/she) had a right to the
property and whether (he/she) held that belief in good faith, consider all the facts known
to (him/her) at the time (he/she) obtained the property, along with all the other evidence
in the case. The defendant may hold a belief in good faith even if the belief is mistaken
or unreasonable. But if the defendant was aware of facts that made that belief completely
unreasonable, you may conclude that the belief was not held in good faith.]

       “[An intent to deprive the owner of property, even temporarily, is enough.]

       “[Intent to restore the property to its owner is not a defense.]

      “[An agent is someone to whom the owner has given complete or partial authority
and control over the owner’s property.]

       “[For petty theft, the property taken can be of any value, no matter how slight.]”

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violation is measured against the harmless error test of Chapman v. California (1967) 386
U.S. 18, 24 [17 L. Ed. 2d 705]. [Citation.]” (People v. Samaniego (2009) 172
Cal.App.4th 1148, 1165.) Under that test, we ask whether beyond a reasonable doubt the
jury verdict would have been the same absent the error. (Ibid.) We cannot say, on this
record, beyond a reasonable doubt, that defendant would have been found guilty of
embezzling a vehicle had the jury been properly instructed. The Attorney General does
not argue otherwise.
       At trial, defendant testified that she rented the U-Haul for a friend and expected he
would return it later that day or evening. She did not learn that the truck had not been
returned until about a week before she was stopped by Officer Bonner. After learning the
truck had not been returned, she ascertained its location, retrieved it, and was on her way
to the U-Haul store to return it when she was stopped. If credited, the jury reasonably
could conclude that defendant lacked the intent to deprive U-Haul of its property beyond
the rental period. The jury, however, was not told that the People were required to prove
that defendant intended to deprive U-Haul of the truck; rather, it was told that it could it
could presume defendant embezzled the truck “[i]f you find the defendant failed to return
the vehicle to U-Haul within five days of the lease [or] rental agreement expiration.”
       The embezzlement charge in count one is subject to retrial for instructional error
(see People v. Nero (2010) 181 Cal.App.4th 504, 519-520) unless there is insufficient
evidence to support that conviction, in which case retrial is barred by the double jeopardy
clause (People v. Belton (1979) 23 Cal.3d 516, 527, fn. 13). We conclude, based on the
evidence detailed in the factual background above and inferences to be drawn from that
evidence, that a properly instructed jury could have found defendant guilty of




                                              8
embezzlement of a vehicle in violation of section 503. Accordingly, retrial is proper at
the election of the People.4
                                            II
    The Trial Court Did Not Abuse its Discretion in Denying Defendant’s Motion for a
    Mistrial After Verdict Forms Pertaining to the Prior Prison Term Allegation Were
                           Inadvertently Distributed to the Jury
       Defendant also contends that “[t]he inclusion of the verdict form for the bifurcated
prison term allegation with the jury’s verdict forms denied [her] her right to a fair trial,”
and as a result, both of her convictions must be reversed. We disagree.
       At defendant’s request, the prior prison term allegation was bifurcated from the
jury trial. Verdict forms pertaining to that allegation, however, were inadvertently
included with the verdict forms given to the jury. There were two forms pertaining to the
prior prison term allegation: “ALLEGATION--NOT TRUE” and “ALLEGATION--
TRUE.” Those forms read: “We, the Jury in the above entitled action, find the
defendant, BONNIE DIANNE DEAR, [to be/to NOT be] in violation of California Penal
Code section 667.5(b), PRIOR CONVICTION: PRISON PRIOR, as alleged in the
information.” The jury did not ask any questions about the forms and returned them to
the court unsigned when it rendered its verdict. Upon learning of the mistake,
defendant’s trial counsel moved for a mistrial. The trial court denied the motion, finding
that any error was harmless given defendant’s testimony that she had four prior felony
convictions and the absence of any indication that defendant’s prison record played any
part in the jury’s decisionmaking. The court found that “all indications are that [the jury]
ignored this because they didn’t even ask any questions to the court as to what they were



4   We express no opinion on the Attorney General’s claim that a subsequent prosecution
of defendant for violating Vehicle Code section 10851 “would be completely
appropriate” because it is beyond the scope of the issues raised in this appeal. The
argument appears to be based on the erroneous assumption that defendant cannot be
retried for embezzlement.

                                              9
supposed to do with these verdict forms. They are blank, each of them. There isn’t even
marking on them.”
       A trial court is obligated to declare a mistrial only when there has been irreparable
damage to a party’s chance of receiving a fair trial. (People v. Panah (2005) 35 Cal.4th
395, 453.) We review a trial court’s denial of a motion for mistrial for abuse of
discretion. (People v. Lightsey (2012) 54 Cal.4th 668, 718.)
       Defendant notes that although the jury already knew that she had four prior felony
convictions, “the [verdict] form alerted the jury that [she] had served a prior prison term.”
Defendant claims that “it would have been difficult for the jury to presume anything from
this information other than [she] had committed a very serious crime,” and as a result,
“the jury would have been less inclined to believe her testimony and more likely to find
her guilty as charged.”
       As a preliminary matter, the verdict forms did not state conclusively that
defendant had a prison record; rather, they raised the possibility she had been to prison.
Even assuming the jury saw the forms and concluded that defendant had been to prison,
the trial court reasonably could conclude that defendant’s chance of receiving a fair trial
had not been irreparably damaged given that the jury already knew that she had four
felony convictions. Stated another way, the trial court reasonably could conclude that the
jury would not have been any less inclined to believe her knowing that she served one
prison term than it was after learning she had four prior felony convictions. The trial
court did not abuse its discretion in denying defendant’s motion for a mistrial.
                                       DISPOSITION
       Defendant’s conviction for embezzlement of a vehicle (count one), is reversed and
the sentence is vacated. Defendant’s conviction for possession of brass knuckles (count
two) is affirmed. The People may retry defendant for embezzlement within the time set
forth in section 1382, (i.e., 60 days after the filing of the remittitur unless good cause is
shown for a different period or defendant waives the 60-day requirement). If defendant is

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retried and found guilty of embezzlement, the trial court shall resentence defendant on the
embezzlement conviction and count two. If defendant is found not guilty of
embezzlement, the trial court shall resentence defendant on count two. In the event that
the People elect not to retry defendant on a charge of embezzlement of a vehicle, the trial
court shall resentence defendant on count two. The trial court may conduct any
necessary ancillary proceedings consistent with this opinion.




                                            /s/
                                          Blease, Acting P. J.


We concur:




         /s/
       Nicholson, J.




         /s/
       Hull, J.




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