Filed 7/30/14 P. v. Jackson CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059725

v.                                                                       (Super.Ct.No. FSB1202547)

EDITH ELLEN JACKSON,                                                     OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. William Jefferson

Powell, Judge. Reversed with directions.

         William G. Holzer, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.


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       A jury convicted defendant Edith Ellen Jackson of felony, grand theft of lost

property (count 1; Pen. Code, § 485)1. The court granted defendant four years’

supervised probation with the condition she serve 180 days in jail with credit of 60 days

for time already served. On appeal, defendant contends the court erred in failing to

instruct the jury regarding the amount it would have to find defendant stole in order to

convict her of grand theft. We shall reverse the judgment and remand the matter to allow

the People to determine whether to retry the case or accept a reduction of the offense to

petty theft.2

                                   FACTUAL HISTORY

       The victim won $25,000 on her birthday in February 2012, at the San Manuel

Casino. She purchased her daughter a car and kept the remainder of the money, $4,600,

in a purse. On April 3, 2012, the victim mistakenly took the purse with her to the casino.

The victim spent approximately three hours at the casino during which she put $100 bills

in a slot machine, played a few credits, cashed out, and repeated the process

approximately 19 times.

       At some point, the victim noticed she had lost the purse containing the $4,600.


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

       2   Defendant makes further assignments of error, which we will address; however,
to the extent they resolve in her favor, they are rendered moot by our disposition of the
first issue.



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She testified she had left a copy of her identification in the purse.3 The victim contacted

security and showed an officer where she believed she had lost the purse.

       A public safety officer at the casino looked at surveillance images of the area

where the victim believed she had lost the purse. He saw images of the victim dropping

the purse. Approximately 20 minutes after the victim dropped the purse, the defendant

picked it up and left. The officer was able to obtain the license plate number of

defendant’s vehicle from surveillance video of the exterior of the casino. The People

played the surveillance videos to the jury. The officer called the police.

       A sheriff’s deputy testified he responded and viewed the surveillance footage from

which he obtained defendant’s license plate number. He called defendant, the registered

owner of the vehicle, on the phone the next day. Defendant reported she had found a

purse at the casino the night before. The deputy asked defendant if there was any money

inside; she said there was. The deputy told defendant there was $4,600 inside.

Defendant never referred to how much money was inside the purse, she simply said there

was “a lot” of money inside.

       The deputy asked defendant if she had attempted to return the purse or contact

anyone regarding its ownership; defendant said she had not. The deputy told defendant

that under the law, she had a responsibility to attempt to find the owner of the purse; he

       3Both the public safety officer and the deputy sheriff testified the victim never
told them she had left a copy of her identification in the purse.



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told her to whom the money belonged; and that defendant could turn it in to him.

Defendant indicated an unwillingness to make any effort to return the money. She said

she had already spent the money.

       Defendant testified that as she was leaving the casino, she noticed “a cute makeup

bag” which she picked up and put in her purse as she walked out the door of the casino.

She opened the bag later and found four $100 bills inside. She used the money to pay a

bill and buy shoes and a blanket.

       The police called her that night and asked about the bag. Defendant told the

officer she had found the bag. The officer said there was a lot of money in the bag;

defendant said there “sure was.” The officer said there was $4,600 inside; defendant said

there was “not that much.” Defendant never told the officer there was only $400 in the

bag. She told the officer there was no identification in the bag, that she had only $26 left,

and offered to return what remained and work the rest off for the victim.

       A. Failure to Instruct with CALCRIM No. 1801.

       Defendant contends the court’s failure to instruct the jury with CALCRIM No.

1801 both resulted in a failure to inform the jury of the requisite value of the property the

jury had to find was taken when determining whether defendant had committed grand

theft and deprived defendant of a conviction on the lesser included offense of petty theft.

The People concede the court should have instructed the jury with CALCRIM No. 1801




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and that the matter must be reversed and remanded for the People to either accept a

reduction of the offense to petty theft or retry the case. We agree.

       The People charged defendant by information with felony grand theft of lost

property (count 1; § 485). Defendant requested the court instruct the jury with

CALCRIM No. 18024 or some variation of CALCRIM No. 1801.5 The court expressly

denied defendant’s request for instruction with CALCRIM No. 1802, but made no ruling

on CALCRIM No. 1801. However, the court did not instruct the jury with CALCRIM

No. 1801.

       “‘It is settled that in criminal cases, even in the absence of a request, the trial court

must instruct on the general principles of law relevant to the issues raised by the

evidence. [Citations.] The general principles of law governing the case are those

principles closely and openly connected with the facts before the court, and which are

necessary for the jury’s understanding of the case. [Citations.]’ [Citation.] ‘That

obligation has been held to include giving instructions on lesser included offenses when

the evidence raises a question as to whether all of the elements of the charged offense

       4 CALCRIM No. 1802 reads, in pertinent part, as follows: “To prove that the
defendant is guilty of a single grand theft, the People must prove that: [¶] . . . [¶] 2. The
combined value of the property was over ($950[]); [¶] . . . [¶] If you conclude that the
People have failed to prove grand theft, any [] thefts you have found proven are petty
thefts.”

       5  CALCRIM No. 1801 reads, in pertinent part, “The defendant committed grand
theft if (he/she) stole property [or services] worth more than $950.”



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were present [citation], but not when there is no evidence that the offense was less than

that charged.’ [Citation.]” (People v. Smith (2013) 57 Cal.4th 232, 239.)

       “A trial court’s failure to instruct on an element of a charged offense violates the

federal Constitution by relieving the jury of its obligation to determine whether all the

elements of the offense were proven beyond a reasonable doubt . . . . When the error

pertains to omission of a jury instruction on an element of the offense, a reviewing court

must determine ‘whether the record contains evidence that could rationally lead to a

contrary finding with respect to the omitted element.’ [Citation.]” (People v. Delgado

(2013) 56 Cal.4th 480, 496.)

       “When a greater offense must be reversed, but a lesser included offense could be

affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a

reduction to the lesser offense. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 528;

accord People v. Medina (2007) 41 Cal.4th 685, 702.) Evidence of the value of the

property stolen is an element of grand theft. (People v. Scott (2013) 221 Cal.App.4th

525, 533.)

       Here, the court failed to instruct the jury that in finding defendant guilty of felony

grand theft of lost property, it must find defendant stole something worth more than

$950. (CALCRIM Nos. 1801, 1802; §§ 486, 487, subd. (a).) Defendant testified there

was only $400 in the purse when she found it. Thus, there was substantial evidence from

which the jury could have found defendant stole $950 or less. Therefore, the court erred



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in failing to instruct the jury with CALCRIM No. 1801 because it simultaneously

removed an element of the offense for which defendant was convicted, grand theft due to

the value of the money stolen, and precluded a finding on the lesser, necessarily included

offense of the misdemeanor petty theft.

       B. The Court Erred in Instructing the Jury with CALCRIM No. 361.

       Defendant contends the court erred in instructing the jury with CALCRIM No.

361, because during her testimony, she denied she had stolen $4,600. We agree, but find

our reversal of her conviction renders the issue moot.

       CALCRIM No. 361, as given to the jury, read “If the defendant failed in her

testimony to explain or deny evidence against her, and if she could reasonably be

expected to have done so based on what she knew, you may consider her failure to

explain or deny in evaluating that evidence. Any such failure is not enough by itself to

prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt.

[¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and

importance of that failure.”6

       A trial court has “the correlative duty ‘to refrain from instructing on principles of

law which not only are irrelevant to the issues raised by the evidence but also have the

effect of confusing the jury or relieving it from making findings on relevant issues.’

       6  The parties below stipulated to a waiver of the reporting of the court’s
instruction of the jury.



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[Citation.] ‘It is an elementary principle of law that before a jury can be instructed that it

may draw a particular inference, evidence must appear in the record which, if believed by

the jury, will support the suggested inference [citation].’ [Citation.]” (People v. Saddler

(1979) 24 Cal.3d 671, 681.) CALCRIM No. 361 should not be given when during a

defendant’s testimony she denies or explains any incriminating evidence adduced against

her. (See id. at pp. 682-683; accord People v. Marks (1988) 45 Cal.3d 1335, 1346.)

       “‘[T]he test for giving the instruction is not whether the defendant’s testimony is

believable. CALJIC No. 2.62 [CALCRIM No. 361’s predecessor] is unwarranted when a

defendant explains or denies matters within his or her knowledge, no matter how

improbable that explanation may appear.’ [Citation.]” (People v. Lamer (2003) 110

Cal.App.4th 1463, 1469.)

       Here, during her testimony, defendant denied she had stolen $4,600. Rather,

defendant testified that when she opened the purse, she found only $400. Thus, the court

erred in instructing the jury with CALCRIM No. 361. (People v. Marks, supra, 45

Cal.3d at p. 1346 [“If there is a retrial, the trial court should carefully consider whether

this instruction is appropriate.”].)

                                       DISPOSITION

       The judgment is reversed. The matter is remanded to allow the People to either

retry the case for felony grand theft of lost property upon proper instruction of the jury or




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to accept a reduction in the conviction to misdemeanor petty theft. If the People choose

the latter, the trial court must resentence defendant.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                              CODRINGTON
                                                                                           J.

We concur:


McKINSTER
                Acting P. J.


MILLER
                           J.




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