Filed 5/12/20




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                        DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                        G057597

        v.                                           (Super. Ct. No. 15NF2368)

SUNG JUE SEO,                                        OPINION

    Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed.
                  Alex Coolman, under appointment by the Court of Appeal, for Defendant
and Appellant.
                  Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney
General, Zee Rodriguez and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff
and Respondent.
                                    *          *          *
              A jury convicted defendant Sung Jue Seo of carrying a loaded firearm in a
                                                           1
vehicle (Pen. Code, § 25850, subds. (a), (c)(7); count 4), a misdemeanor, and possession
                                                                   2
of counterfeiting equipment (§ 480, subd. (a); count 5), a felony. Imposition of sentence
was suspended and defendant was placed on formal probation for three years with the
term, among others, that he serve 240 days in county jail.
              On appeal, defendant seeks reversal of his conviction for violating section
480, subdivision (a) (hereafter section 480(a)), possession of counterfeiting equipment.
Because the basis for the charge was the possession of “ordinary office supplies,” he
contends the jury should have been instructed that the offense requires possession of
counterfeiting materials with a “fraudulent intent” rather than a “criminal intent.” He
asserts the court’s failure to properly instruct the jury on the mens rea element of the
offense was prejudicial error. He argues, in the alternative, that if the jury was correctly
instructed that the offense requires proof of “criminal intent” then the statute is
unconstitutionally vague.
              The court’s instruction was based on language used in a 153-year-old
California Supreme Court case, People v. White (1867) 34 Cal. 183 (White), and its very
limited progeny. Thus, we cannot say the instruction was legally erroneous, but it surely
lacked clarity. We publish this decision to offer our suggestion on how a jury should be
instructed on the elements of a section 480(a) offense. The following instruction would
convey both the nature of the prohibited act and the mental state required to convict a
defendant of violating section 480(a).


1
              All statutory references are to the Penal Code unless otherwise stated.
2
              The jury acquitted defendant of unlawful taking of a vehicle (Veh. Code,
§ 10851, subd. (a); count 3) and was unable to reach a verdict on the charges of
possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1,
subd. (a); count 1) and receiving stolen property (§ 496d, subd. (a); count 2). The court
subsequently dismissed counts 1 and 2 in the interests of justice. (§ 1385.)

                                              2
              The defendant is charged [in Count __] with possession of counterfeiting
equipment [in violation of Penal Code section 480].
              To prove that the defendant is guilty of this crime, the People must prove
that:
              1. The defendant possessed any <insert type of equipment possessed, e.g.,
inkjet printer> made use of in counterfeiting <insert things that had been or will be
counterfeited by use of the equipment, e.g., currency>;
              2. The defendant knew of the presence of these items;
              AND
              3. The defendant knew that the items he or she possessed had been or will
be used in counterfeiting <insert things that had been or will be counterfeited by use of
the equipment, e.g., currency>.
              Although we offer this instruction as having greater clarity, we reject
defendant’s contention that the court’s instruction (that defendant must have only a
criminal intent) constituted prejudicial error. If the lack of clarity constituted error, it was
harmless beyond a reasonable doubt. We also reject defendant’s assertion that section
480(a) is unconstitutionally vague. Accordingly, we affirm the judgment.


                                           FACTS


              After a rental car that had been kept weeks past its return date was found in
a motel parking lot, a Buena Park police officer began surveilling it. A few hours later,
the officer approached defendant as he was loading boxes and duffel bags into the
backseat of the car. Upon searching defendant’s motel room, the officer found several
pieces of linen paper on the floor and in the trash can; one had an outline of a $20 bill on
it.



                                               3
              When the police searched the boxes and bags defendant had been loading
into the car, they found a loaded handgun registered to defendant in a computer bag.
They also found evidence defendant had been attempting to counterfeit $5 and $20 bills,
including some pieces of paper with these denominations printed on them. Other pieces
of paper had currency printed on them and had been cut into the shape of regular bills.
One piece of paper had the front and back of a $20 bill copied on to it. Some versions of
the bills were more complete than others as some did not have backs.
              Defendant also had a piece of paper with four authentic $5 bills taped to it,
a template, and this template had been copied onto linen paper using an inkjet printer.
Linen paper is sometimes used in counterfeiting because its texture feels more like actual
currency than basic printer paper. Additional pieces of linen paper, as well as a laptop
computer and an inkjet printer, which is commonly used in counterfeiting currency, were
found in defendant’s possession. Police also recovered four bottles of paint, paint
brushes, a paint pen, and acetone nail polish remover. A United States Secret Service
Special Agent with training in identifying counterfeit currency opined that the inkjet
printer, linen paper, and acetone were items used in the manufacturing of counterfeit
currency.


                                      DISCUSSION


              Defendant raises two contentions; both concern the mens rea required for
the offense of possession of counterfeiting equipment under section 480(a). First,
defendant contends the court erred with its instruction to the jury on the intent element.
The court rejected a defense proposed instruction requiring the prosecution prove
defendant possessed counterfeiting materials with an intent to defraud. Instead, the court
instructed the jury that the elements of the offense were: “1. The defendant knowingly
possessed any dye, any apparatus, or paper made use of in counterfeiting bank notes or

                                             4
bills; [¶] 2. The defendant possessed the items with criminal intent.” Defendant
contends that where, as here, the basis of the charge is the possession of a printer and
paper, which are “ordinary office supplies,” the jury should be instructed the offense
requires possession with a “‘fraudulent intent.’” Second, he asserts that if the offense
requires only a criminal intent and does not require fraudulent intent then it is
unconstitutionally vague. The Attorney General contends the court properly declined to
instruct the jury that an intent to defraud is required for the offense. He argues that
possession of counterfeiting materials is a general intent crime and that defendant’s
vagueness challenge fails. The Attorney General has the better arguments.


Intent to defraud is not an element of a section 480(a) offense.
              “In every crime or public offense there must exist a union, or joint
operation of act and intent, or criminal negligence.” (§ 20.) To determine the intent
required for the crime of possessing counterfeiting equipment, we begin by examining
“the statutory language describing the proscribed conduct, including any express or
implied reference to a mental state.” (People v. Hering (1999) 20 Cal.4th 440, 445.)
Section 480(a) provides: “Every person who makes, or knowingly has in his or her
possession any die, plate, or any apparatus, paper, metal, machine, or other thing
whatever, made use of in counterfeiting coin current in this state, . . . or in counterfeiting
bank notes or bills, is punishable by imprisonment . . . .” Simply stated, section 480(a),
                                                                                      3
prohibits “knowingly” possessing items “made use of in counterfeiting” currency. “The


3
               Section 480(a) prohibits possession of equipment made use of in
counterfeiting a wide variety of items. In full, the possession of equipment is prohibited
if it is made use of in counterfeiting “coin current in this state, or in counterfeiting gold
dust, gold or silver bars, bullion, lumps, pieces, or nuggets, or in counterfeiting bank
notes or bills.” (Ibid.) In People v. Ray (1996) 42 Cal.App.4th 1718, the court rejected
the absurd argument that “bank notes or bills” did not include the ubiquitous Federal
Reserve notes used regularly by all. For convenience, we will simply describe the subject
of the counterfeiting as “currency.” (Id. at pp. 1722-1723.)

                                               5
word ‘knowingly’ imports only a knowledge that the facts exist which bring the act or
omission within the provisions of [the Penal C]ode. It does not require any knowledge of
the unlawfulness of such act or omission.” (§ 7, subd. (5).)
              “‘When the definition of a crime consists of only the description of a
particular act, without reference to intent to do a further act or achieve a future
consequence, we ask whether the defendant intended to do the proscribed act. This
intention is deemed to be a general criminal intent. When the definition refers to
defendant’s intent to do some further act or achieve some additional consequence, the
crime is deemed to be one of specific intent.’” (People v. Rubalcava (2000) 23 Cal.4th
322, 328.) Because section 480(a) simply describes a particular act—possession of items
made use of in counterfeiting—without reference to an intent to do a further act or
achieve a future consequence, it is deemed a general intent crime. Thus, to be convicted
of violating section 480(a), a defendant must knowingly possess an item (die, paper,
machine or apparatus) that he or she knew was or will be used in the counterfeiting of
currency. A defendant who does not know that he or she is in possession of equipment
that was or will be used in counterfeiting currency is not guilty of violating section
480(a). Thus, section 480(a) does not require a specific intent to do a further act or
achieve a future consequence such as defrauding another.
              As defendant acknowledges, the statute “does not explicitly” require the
prosecution prove the possessor had fraudulent intent. The gravamen of the offense is the
knowing possession of tools or instruments used in the process of counterfeiting
currency. (People v. Clark (1992) 10 Cal.App.4th 1259, 1264.) Section 480 does not
require proof that the defendant has actually produced completed counterfeit items.
(Ibid.) Nor must the prosecution prove the defendant intends to utter or pass counterfeit
bills with the intent to defraud as this is separately punished under section 475. (Clark, at
pp. 1263-1267; see id. at p. 1267 [“the Legislature has discerned separate harms and thus



                                              6
has separately treated the possession of completed counterfeit bills and the making or
possessing of the means of counterfeiting”].)
              Even though the plain language of section 480(a) does not include a
fraudulent intent requirement, defendant nonetheless urges us to graft one onto the
statute, at least when the charge is based on possession of “ordinary office equipment
like . . . paper and [a] printer.” We decline the invitation. Examination of the history of
section 480(a) and a comparison with related statutes demonstrates that it is not necessary
to impute a fraudulent intent requirement into the statute generally or under the
circumstances identified by defendant.
              Since enactment in 1872 of the first predecessor of section 480(a), the
pertinent language of the statute has remained unchanged, prohibiting the knowing
                                                                 4
possession of materials made use of in counterfeiting currency. At no point has the
                                                                    5
Legislature included an intent to defraud element in the statute.




4
               Section 480 has been amended three times since its enactment. It was first
amended in 1977 to add a triad term of imprisonment. (Stats. 1977, ch. 165, § 6.)
Second, in 1999, stylistic and organizational changes were made to what is now
subdivision (a), and subdivision (b) was added. (Stats. 1999, ch. 254, § 2.) Third, the
statute was amended in 2011 as part of the Criminal Justice Realignment Act
(Stats. 2011, 1st Ex. Sess. 2011-2012, ch.12, § 1), to indicate the offense was punishable
by imprisonment under section 1170, subdivision (h). (Stats. 2011, ch. 15, § 364.)
5
                Even if we look back to the predecessor of section 480(a), which was
section 78 of the 1850 Act Concerning Crimes and Punishments, we still do not find a
fraudulent intent requirement. Section 480(a), is nearly identical to section 78, which
stated: “Every person who shall make, or knowingly have in his possession, any die or
dies, plate or plates, or any apparatus, paper, metal, machine, or other thing whatever,
made use of in counterfeiting the coin now made current, or hereafter to be made current
in this State, or in counterfeiting bank notes or bills, upon conviction thereof shall be
punished by imprisonment in the State prison for a term not less than one, nor more than
fourteen years; and all such dies, plates, apparatus, paper, metal, or machine, intended for
the purpose aforesaid, shall be destroyed.” (Stats. 1850, ch. 99, § 78, p. 238.)

                                             7
              Chapter 4 of the Penal Code deals generally with crimes of forgery and
counterfeiting. The absence of an intent to defraud element in section 480(a) is telling as
the Legislature has included an intent to defraud element in many of the other statutes in
chapter 4. The offenses of possession of counterfeit currency (§ 479) or counterfeiting
railroad or steamship tickets (§ 481) require an intent to defraud. Similarly, an intent to
defraud is an essential element of forgery (§ 470), forgery of a public or corporate seal
(§ 472), forgery of a bill, note or check (§ 476), and forgery or alternation of an entry in a
book of records (§ 471). (See §§ 471.5 [falsification of medical records], 474 [sending
false or forged telegraph or telephone message], 476a [making or uttering a check with
insufficient funds].) The Legislature’s omission of an intent to defraud element in section
480(a), when it included such language in several related statutes, is significant. “‘When
the Legislature “has employed a term or phrase in one place and excluded it in another, it
should not be implied where excluded.”’” (People v. Buycks (2018) 5 Cal.5th 857, 880.)
Defendant fails to persuade us that we must add an intent to defraud element in section
480, when the Legislature has chosen not to. (People v. Massicot (2002) 97 Cal.App.4th
920, 925 [“In construing a statute, it is the role of the judiciary to simply ascertain and
declare what is in terms or in substance contained in the statute, not to insert what has
been omitted or omit what has been included”].)
              Accordingly, we conclude the court properly refused to instruct the jury
that the offense of possession of counterfeiting tools in section 480(a), requires an intent
to defraud.




                                              8
The court did not prejudicially err by instructing the jury the offense requires proof of a
criminal intent.
              We turn to the question of whether the court properly instructed the jury
that the offense requires proof of a “criminal intent.”
              The jury was instructed that the charge of possession of counterfeiting
equipment required a specific intent or mental state and that for defendant to be found
guilty of the crime, he “must not only intentionally commit the prohibited act, but must
do so with a specific intent.” This instruction, CALCRIM No. 252 (“Union of Act and
Intent”), further informed the jury that “[t]he act and the specific intent require[ment
were] explained in the instruction for [the] crime.” As there is no standard CALCRIM
instruction covering the offense of possession of counterfeiting tools, the court crafted an
                                                       6
instruction after receiving proposals by both parties. The court instructed the jury that
the two elements of the offense were: “1. The defendant knowingly possessed any dye,
any apparatus, or paper made use of in counterfeiting bank notes or bills; [¶] 2. The
defendant possessed the items with criminal intent.” During its deliberations, the jury
asked (1) for the “[d]efinition of criminal intent;” (2) “Is it illegal to copy [and] print US
curr[e]ncy?” and (3) “Is printing copies of US curr[e]ncy illegal?” In a written response,
the court told the jury that “[c]riminal intent is the intent to commit a crime” and referred
the jury back to the instruction on the offense “for the elements of the crime charged.”
              The instruction given to the jury was adapted from language in People v.
Franz (2001) 88 Cal.App.4th 1426. In Franz, the issue was whether the defendant’s
conviction under 18 United States Code section 472 included all of the elements of
section 480(a) as required to impose a prior prison term enhancement. (Franz, at pp.


6
              The defense proposed instruction included an intent to defraud element,
patterned after CALCRIM Nos. 1925 and 1926, the instructions for counterfeiting a
government, public, or corporate seal and possession of a counterfeit seal in violation of
section 472. As discussed ante, a violation of section 480(a) does not require fraudulent
intent and the court properly refused to include this element in its instruction.

                                               9
1450-1452; see § 667.5, subd. (f).) Comparing the elements of the federal crime to the
state statute, the Court of Appeal stated, “[T]he elements of the offense described by
section 480 are as follows: [¶] 1. That a person knowingly possessed paper made use of
in counterfeiting bank notes or bills but not consisting of the completed counterfeit bank
notes or bills themselves; [¶] 2. That the possession was with criminal intent.” (Franz,
at pp. 1452-1453.) The Franz court based these elements on the decisions in White,
supra, 34 Cal. 183 and People v. Clark, supra, 10 Cal.App.4th 1259. (Franz, at p. 1452.)
As the “criminal intent” language originated in White and was not analyzed in Franz, our
analysis moves to the decision in White.
              In White, the defendant was convicted of violating section 78, the
                           7
predecessor to section 480. (White, supra, 34 Cal. at p. 186.) On appeal, he contended
the indictment stated no offense. (Id. at p. 186.) The Supreme Court rejected this
contention, noting that the indictment employed the same language as the statute.
Interpreting the statute, the Supreme Court indicated: “We do not consider that it was the
intention of the Legislature to declare that every person who knowingly has in his
possession any of the tools, implements or materials mentioned in the statute; or, in other
words, any tools, implements or materials which are or may be used in counterfeiting,
without any criminal intent, shall be deemed guilty of crime. To so hold would be to
ignore one of the indispensable elements of crime. To constitute crime, in the nature of
things and according to the declared will of the Legislature, there must be a joint
operation of act and criminal intent, or criminal negligence. [Citation.] If the mere
making or knowingly having in possession paper and metals which are used in
counterfeiting, without any intent to make such use of them, be a crime, then is every
maker of bank paper and every vendor or worker in gold, silver and such base metals as
are, or may be used in counterfeiting, guilty of crime. Doubtless there are many tools and


7
              See footnote 5, ante.

                                             10
implements in use among artisans which are adapted to, or can be, and are made use of
by counterfeiters in their business; if so, the same would be true of such artisans. The
possession intended to be prohibited is a criminal one, or a possession with a criminal
intent.” (Id. at pp. 186-187, italics added.)
              The Supreme Court concluded “that to justify a conviction under” the
statute, “there must be proof of a criminal intent as well as a known possession.” (White,
supra, 34 Cal. at p. 188.) The court indicated the instructions given to the jury
substantially complied with its interpretation of the statute as “[t]he jury was told
expressly that they must acquit the defendant, unless they were satisfied from the
evidence that he knowingly had the tools or implements in question in his possession
with a criminal intent.” (Ibid.)
              As defendant notes, White holds the offense requires “possession with a
criminal intent” (White, supra, 34 Cal. at p. 187) but does not define “what sort of
criminal intent” is required. “There are two kinds of criminal intent: general intent and
specific intent.” (People v. Keovilayphone (2005) 132 Cal.App.4th 491, 496.) At the
time White was decided, it was not necessary to differentiate between general intent and
specific intent as these concepts had not yet been fully developed. (See People v. Hood
(1969) 1 Cal.3d 444, 457 [in 1872 “‘specific’ and ‘general’ intent were not yet terms of
art”].) Based on since-established principles, it is clear that the offense of possession of
counterfeiting equipment is a general intent crime that requires the specific mental state
of knowledge, as discussed ante.
              Thus, as to the elements of the offense, a clear jury instruction would have
told the jury that the prosecution must prove: (1) The defendant possessed any apparatus,
paper, machine or other things that had been or will be used in counterfeiting currency;
(2) the defendant knew of the presence of these items; and (3) the defendant knew that
the items he or she possessed had been or will be used in counterfeiting currency. Such
an instruction articulates both the criminal act of knowing possession and the mental state

                                                11
of knowing the wrongful purpose for which the items possessed had been or will be used.
The knowing possession requirement prevents criminalizing the innocent possession of
linen paper, inkjet printers, and other “office supplies,” which defendant is concerned
about.
              Obviously, not all acts of possessing linen paper or an ink jet printer are
illegal; only the knowing possession of items actually used or intended to be used in the
process of counterfeiting currency is criminalized. (White, supra, 34 Cal. at p. 187.)
Where the basis for the charge is the possession of linen paper or other common office
supplies, the circumstances surrounding the defendant’s possession—time, place,
manner, and destination—will likely be relevant in determining whether the defendant
had the requisite knowledge—that is, knew the items he or she possessed had been or
were to be used in counterfeiting currency. (See, e.g., People v. Grubb (1965) 63 Cal.2d
614, 620-621 [considering “the attendant circumstances, including the time, place,
destination of the possessor, the alteration of the object from standard form, and other
relevant facts” in determining whether the possessor of an item commonly used for a
nonviolent purpose (i.e., table leg, baseball bat) intended to “use the object for a
dangerous, not harmless, purpose”].)
              The instruction the court gave here, telling the jurors that in order to convict
defendant they must find he possessed counterfeiting equipment with a criminal intent,
while not incorrect under White and its progeny, was not a model of clarity, as evidenced
by the jury’s request for a “[d]efinition of criminal intent.” Nevertheless, defendant was
not prejudiced by the court’s instruction as any error was harmless beyond a reasonable
doubt. (People v. Chun (2009) 45 Cal.4th 1172, 1201; Chapman v. California (1967)
386 US. 18, 24.) The evidence presented and counsels’ closing arguments establish
beyond a reasonable doubt that a rational jury would have reached the same verdict
absent any error.



                                             12
              Evidence that defendant knowingly possessed paper, a printer, and other
items used in the process of counterfeiting currency was overwhelming. Indeed, this was
not really disputed at trial. The parties’ closing arguments, instead, focused on whether
defendant possessed the items with a “criminal intent.” The parties told the jurors this
meant they had to find defendant wanted to commit fraud or “do something illegal” with
the counterfeiting equipment. The prosecutor asked the jury to consider why defendant
possessed the printer, paints, and linen paper, arguing that defendant possessed the items
because he wanted “to commit some type of fraud on someone.” Defense counsel argued
to the jury that the prosecution had failed to prove defendant “had this counterfeit
equipment to do something illegal, criminal.” Given the evidence that defendant
possessed equipment used for counterfeiting bills and possessed the incomplete product
of that process, there was no dispute that he knew of the presence of the counterfeiting
equipment and knew that it had been used in counterfeiting currency.
              Accordingly, we conclude any instructional error was harmless beyond a
reasonable doubt.


Section 480(a) is not unconstitutionally vague.
              Defendant contends that section 480(a), is unconstitutionally vague on its
face, asserting it “provides no guidance whatsoever as to what it actually prohibits” as it
“criminalizes possession of mere paper and computers when accompanied by the
nebulous mental state of ‘intent to commit a crime.’” The Attorney General argues that
defendant’s vagueness challenge is “built on a false premise” because it ignores “the
‘made use of in counterfeiting’ language in [section 480(a)], which makes clear the
statute criminalizes only the possession of equipment that the perpetrator knows [is]
being used or had been used to counterfeit bills.” We agree with the Attorney General.




                                             13
              “A statute is not unconstitutionally vague if the ‘accused can reasonably be
held to understand by the terms of the statute that his conduct is prohibited.’ [Citation.]
‘A statute must be definite enough to provide a standard of conduct for its citizens and
guidance for the police to avoid arbitrary and discriminatory enforcement.’ [Citation.] A
‘“statute which either forbids or requires the doing of an act in terms so vague that men
of common intelligence must necessarily guess at its meaning and differ as to its
application”’ violates the due process requirement of adequate notice. [Citation.] But a
‘statute is not vague if . . . any reasonable and practical construction can be given to its
language. Reasonable certainty is all that is required.’ [Citation.] There is a ‘“strong
presumption that legislative enactments ‘must be upheld unless their unconstitutionality
clearly, positively, and unmistakably appears.’”’” (People v. Acosta (2014) 226
Cal.App.4th 108, 116-117.)
              A person of common intelligence can understand that section 480(a)
prohibits only the knowing possession of items used in the process of counterfeiting
currency. The statutory language is “sufficiently definite to provide adequate notice of
the conduct proscribed” and “to prevent arbitrary and discriminatory enforcement.”
(People v. Mary H. (2016) 5 Cal.App.5th 246, 260.) Defendant’s vagueness challenge
fails as section 480(a), is not unconstitutionally vague.




                                              14
                                 DISPOSITION


           The judgment is affirmed.



                                            IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




                                       15
