(Santa Clara County Super. Ct. No. CC639230), Honorable Edward F. Lee.
The opinion of the court was delivered by: Mihara, Acting P. J.
CERTIFIED FOR PUBLICATION
Defendant Michael Jaffari Zamani was convicted by jury trial of felony appropriation of lost property (Pen. Code, § 485). The trial court suspended imposition of sentence and placed him on probation. On appeal, he contends that the trial court prejudicially erred in (1) failing to instruct the jury that the offense required a specific intent, (2) failing to instruct the jury on mistake of fact, and (3) instructing the jury that mistake of law was not a defense. He also asserts that his trial counsel was prejudicially deficient in failing to offer a proper theory of admissibility for his prior act of returning property to its true owner. We hold that the crime of appropriation of lost property is not a specific intent offense, and we find no prejudicial instructional error and no deficiency of counsel. Accordingly, we affirm the judgment.
Two test circuit boards owned by QuickSilver Technology, Inc. (QuickSilver), each containing four semiconductor chips, were "lost in transit" in February 2004 while being transported from San Jose to San Francisco Airport. Each of the chips on the boards bore a QuickSilver logo. QuickSilver had manufactured only 14 of these test boards. QuickSilver filed a claim with the shipper's insurance company, which paid QuickSilver $24,000 for the loss.
Jerry Farmer was an engineer who bought and sold "high tech engineering products" on eBay. In August 2004, Farmer bought two circuit boards from SVCompucycle (SVC) through eBay. Farmer recognized that the boards were worth "thousands" but were being sold for $74.95 plus $14.95 for shipping, so he assumed that SVC "probably didn't know what they were selling." Farmer received the boards in the mail about a week later. The two boards were QuickSilver's missing test boards. Farmer wanted to learn more about the boards, so he contacted QuickSilver and asked for a manual. The QuickSilver technician he spoke with asked Farmer for the serial numbers on the boards, and Farmer provided him with the serial numbers.
Farmer thereafter spoke by telephone with Rick Hawker, a QuickSilver employee, who requested a photograph of the boards, which Farmer provided. Farmer told Hawker that he had acquired the boards from SVC. Hawker told Farmer that the boards had been lost or stolen and were worth $24,000. Hawker offered to recompense Farmer for the $74.95 that Farmer had paid for the boards. Farmer suggested that he would like a "reward" of $1,000 for the return of the boards. Hawker rejected that idea and demanded that the boards be returned. Farmer did not trust Hawker because Hawker suggested that Farmer was a greedy thief.
Hawker contacted Shaw Roohparvar at SVC and informed Roohparvar that the boards had been "lost or stolen" from QuickSilver. Hawker received a response from Roohparvar informing him that SVC would refund Farmer's money, have him return the boards to SVC, and then SVC would return the boards to QuickSilver. Roohparvar asked for QuickSilver's address. Hawker replied that he had already offered a refund to Farmer but Farmer wanted a reward. Roohparvar assured Hawker that he would get the boards back from Farmer and return them to QuickSilver.
Farmer also contacted Roohparvar and told him what Hawker had said about the worth of the boards. Roohparvar offered to refund Farmer his money if Farmer would return the boards to SVC. Roohparvar told Farmer that defendant Michael Jaffari Zamani would facilitate the return of the boards to QuickSilver, and Roohparvar put Farmer in contact with defendant. Farmer was given the impression that defendant was Roohparvar's lawyer. Defendant told Farmer that Farmer would receive any reward that was obtained. Farmer returned the boards to SVC in late August 2004.
Farmer subsequently spoke to Bryan Wang at QuickSilver and told Wang that he had returned the boards to SVC for defendant to return to QuickSilver. Wang told Farmer that there would be a reward, and Farmer relayed this information and Wang's contact information to defendant.*fn1 At some point, Roohparvar told Wang that defendant would return the boards to QuickSilver. Roohparvar never authorized defendant to obtain a payment of money from QuickSilver in exchange for return of the boards.
Defendant telephoned Wang on September 3, 2004, and told Wang that he was a mediator working for SVC as a consultant. When Wang asked defendant how the boards were going to be returned, defendant said that he needed to confirm that the boards belonged to QuickSilver and asked if QuickSilver had filed an insurance claim. Wang offered to provide defendant with whatever documentation of ownership he required. Wang told defendant that QuickSilver had filed an insurance claim and been paid $24,000 on that claim.*fn2 Defendant then stated that the boards no longer belonged to QuickSilver but to the insurance company.
Defendant told Wang that QuickSilver should "purchase the boards from him rather than offer him some type of reward" so that "we wouldn't need to tell the insurance company anything." Defendant suggested that he wanted a payment of $20,000. Wang said he "wasn't really interested in going down that route . . . ." Wang expressed surprise at defendant's suggestion and told defendant that he had understood that defendant's role was to arrange the return of the boards to QuickSilver. Defendant said: "[W]ell, yes, but that was before we knew we were sitting on a gold mine." Wang told defendant: "[I]f his objective was to somehow gain financially from the fact of these lost or stolen boards, that I think I would think that that would be despicable . . . ."
Defendant asked Wang for the name, telephone number, and email address of the insurance company, and he asked Wang to give defendant's contact information to the insurance company. However, defendant refused to provide Wang with his address. Wang refused to provide to defendant information about the insurance company because he believed that defendant would try to "extract money" from the insurance company. Defendant followed up his telephone conversation with Wang with an email in which he invited Wang to make a "counteroffer." Defendant said that his "client" wanted $10,000 for the return of the boards. In the email, defendant told Wang that SVC had purchased the boards from a "dumpster diver."
QuickSilver turned this matter over to its attorneys. On September 9, 2004, one of QuickSilver's attorneys sent defendant a letter in which she offered a $1,000 reward for the return of the boards and assured defendant that QuickSilver would notify the insurer of its recovery of the boards upon their return. She asked him to return the boards by September 20. Attached to her letter was documentation regarding the loss of the boards by the shipper. Defendant responded with an email in which he claimed that the boards now belonged to SVC. He sought a payment of $8,000 for the boards. QuickSilver's attorney responded by reiterating the $1,000 reward offer, inviting defendant to turn the boards over to the police if he had any doubts about QuickSilver's ownership rights, and giving him a deadline of October 1. Defendant still did not return the boards. Instead, he insisted on a three-way meeting with the insurance company. The attorney assured defendant that QuickSilver would comply with its obligation to notify the insurance company of the recovery and would provide defendant with a copy of that notice. She was unwilling to put him in contact with the insurer because she believed that defendant wanted to extract money from the insurance company. Defendant still did not return the boards. He continued to seek more than the $1,000 reward that had been offered.
Another of QuickSilver's attorneys telephoned defendant in early November 2004 and asked him to return the boards. Defendant refused to return the boards until he could communicate with the insurance company. Although defendant claimed that he would not try to obtain money from the insurance company, QuickSilver's attorneys did not believe him. The attorney told defendant that she would not negotiate about the return of the boards, and, if the boards were not returned in 24 hours, the matter would be turned over to the police. Wang contacted the police in November 2004. In November 2006, the boards were found in a box in defendant's home when the home was searched pursuant to a search warrant.
II. Procedural Background
Defendant testified on his own behalf at his preliminary examination. He was thereafter charged by amended information with felony appropriation of lost property (Pen. Code, § 485).
Defendant was the sole defense witness at trial. He testified that his friend Roohparvar called him in August 2004 and said he had sold some boards on eBay that turned out to be stolen and "wants to know how he can get them back to the company." Roohparvar asked defendant to handle the return of the boards because Roohparvar was going to be out of the country for an extended period of time. Roohparvar told defendant that QuickSilver wanted SVC to pay Farmer a $1,000 reward for the return of the boards. Defendant drafted an email for Roohparvar to send to Farmer asking him to return the boards either to Hawker at QuickSilver or to Roohparvar. Farmer informed defendant that Hawker had told him that the boards were worth $24,000 each. Farmer told defendant that he was not going to give the boards back unless he received some money. Roohparvar brought the boards in a box to defendant's house. He told defendant to give the boards back to QuickSilver, and he did not ask defendant to obtain any payment for him for the boards. Roohparvar said defendant "could keep whatever money [he] could get out of the boards," and defendant told Roohparvar "I want $10,000 but I didn't tell him why I'm doing it."
Defendant spoke to Wang, and Wang was "[v]ery hostile" and evasive. Wang told defendant that QuickSilver had received insurance proceeds, but he refused to provide defendant with information about the insurance carrier. Defendant wanted to "set these people up to see if they're going to do insurance fraud," so he asked Wang for $10,000. He subsequently communicated with QuickSilver's attorney and asked her for $8,000. He did this to see if she would "bite" so that he could "file a claim with the Department of Insurance." Although both Wang and QuickSilver's attorney told defendant that they would notify the insurance carrier, defendant did not believe them.
Defendant testified that he believed: "When you have an item insured and it is lost or destroyed, when you file a claim and you receive insurance proceeds, according to the insurance contract, you subrogate yours rights to the insurance company. That means that you're [sic] no longer own that thing because you receive the proceeds for it." "According to me, they received insurance proceedings [sic] and they didn't own them any more." Because of Wang's attitude and the fact that QuickSilver had not filed a police report regarding these "expensive boards," defendant suspected that "something isn't right . . . ." He thought that QuickSilver might have filed two separate insurance claims for the same loss. Defendant testified that he thought he would be committing a crime if he returned the boards to QuickSilver because he would be assisting QuickSilver "to pursue a fraudulent claim."
Defendant testified that he had not taken the boards to the police because "I figured that their plan was I take it to the police and they go out and pick it up from the police" without disclosing anything to the insurance company. He claimed that he had eventually called the sheriff's office and spoken to a deputy who told him that it was a civil matter that the sheriff's department would not handle. Defendant asserted that he would have returned the boards to the insurance company. He also insisted that, had QuickSilver paid him $10,000 or $8,000, he would have "given the boards back and I would have taken the check and the correspondence to the Department of Insurance." Defendant testified that he did not want to gain money for himself but was only trying to do a favor for Roohparvar. Defendant admitted that he had never mentioned during his testimony at the preliminary examination that he had been "trying to set up QuickSilver for an insurance fraud claim."
The prosecutor submitted a proposed instruction on the elements of the charged offense. "In order to prove the defendant guilty of the crime charged in Count One, appropriation of lost property, the People must prove, one, defendant found lost property under circumstances which gave him either the knowledge of the true owner or the means to find the true owner, and, two, defendant appropriated that property to his use or the use of another person without first making reasonable and just efforts to find the true owner and return the property to him or her." The trial court characterized the proposed instruction as "a relatively straightforward parsing of the statute," and defendant's trial counsel agreed that the proposed instruction correctly set forth the elements of the offense.
Defendant's trial counsel asked the court to give CALCRIM No. 3406 on mistake of fact. She asserted that defendant's belief that returning the boards to QuickSilver would be a violation of law and his belief that QuickSilver was no longer the true owner of the boards were mistakes of fact. The trial court concluded that these were mistakes of law and that there was no evidence of a mistake of fact. In addition, the court stated that, because the charged offense was a general intent crime, a mistake of fact instruction would be inapplicable. The court declined to instruct on mistake of fact. Defendant's trial counsel objected without elaboration to the court's instruction on mistake of law, CALCRIM No. 3407. The court overruled the objection.
The trial court gave the following instructions to the jury. "The crime charged in this case requires proof of the union or joint operation of act and wrongful intent. In order to be guilty of the crime of appropriation of lost property, a person must not only commit the prohibited act but must do so intentionally or on purpose. The act required is explained in the instructions for the crime. However, it is not required that he or she intend to break the law." "Let me now define for you the crime of appropriation of property. Anyone who finds lost property under circumstances which give him or her knowledge of or means of inquiry as to the true owner and who appropriates such property to his or her own use or to the use of another person not entitled thereto, without making reasonable and just efforts to find the owner and restore the property to the owner, is guilty of the crime of appropriation of property. [¶] In order to prove that the defendant is guilty of this crime, the people must prove that, one, the defendant found lost property under circumstances which gave him either the knowledge of the true owner, or means to find the true owner; and two, the defendant appropriated that property to his use or the use of another person without first making reasonable and just efforts to find the true owner and return the property to him or her." "If you conclude that the people have proved that the defendant committed the crime of appropriation of property, the return or offer to return of the property wrongfully appropriated is not a defense to that charge. It is not a defense to the crime of appropriation of property that the defendant did not know he was breaking the law or that he believed that his act was lawful."
The prosecutor described the intent element of the crime in his argument to the jury. "So general intent as it relates to this case, again, doesn't mean that he has to know that what he's doing is against the law. It means that he has to intentionally do the act which is against the law. He has to intentionally appropriate the property, intentionally use the property for his own purpose rather than give it back. He doesn't have to know that it's against the law to do that." "The way he appropriates it for his own use is to try to get money out of it; that is appropriating it for his own use." Defendant "did this to line his own pockets."
Defendant's trial counsel argued to the jury that defendant had believed that QuickSilver no longer owned the boards and the insurance company was the true owner of the boards. She asserted that defendant had made "reasonable and just efforts" to find the true owner and return the property.
The jury returned a guilty verdict. The trial court suspended imposition of sentence and placed defendant on probation. Defendant timely filed a notice of appeal.
A. Instruction On Mental State Element
Defendant contends that the trial court prejudicially erred by failing to instruct the jury that a violation of Penal Code section 485 is a "specific intent" offense that requires proof that defendant intended to "permanently deprive the owner of his or her property."
Penal Code section 485 is one of a number of separate statutes in Chapter 5 of Title 13 of Part 1 of the Penal Code which define various "theft" offenses. Penal Code section 485 reads: "One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft." (Pen. Code, § 485.) Penal Code section 485 plainly does not explicitly identify any required specific intent.
Penal Code section 484 defines as theft various "felonious" takings.*fn3 The word "felonious" has been held to import the common law's specific intent requirement into Penal Code section 484's description of these takings as thefts. (People v. Avery (2002) 27 Cal.4th 49, 55, 58 (Avery).) Penal Code section 485, unlike Penal Code section 484, contains no reference to a "felonious" appropriation. Thus, the statutory language contains no indication that the Legislature intended to import the common law's specific intent requirement into Penal Code section 485.
The only mental state mentioned in Penal Code section 485 is the perpetrator's "knowledge." The crime is defined in terms of two acts, one omission, and one mental state. The perpetrator commits this offense if he or she (1) finds lost property (an act), (2) appropriates it (an act), (3) fails to make "reasonable and just efforts" to find the owner and restore the property to the owner (an omission), and (4) does so with knowledge of the true owner or means of inquiry as to the true owner (a mental state). Nowhere in the statutory definition of the offense is there any suggestion that the perpetrator must harbor any additional specific intent.
We can find no justification for importing Penal Code section 484's specific intent requirement into Penal Code section 485. Neither the proximity of Penal Code section 485 to Penal Code section 484 nor the fact that both statutes appear in the same chapter leads to the conclusion that they share a specific intent requirement. Not all of the "theft" offenses in Chapter 5, not even those in closer proximity to Penal Code section 484, include specific intent requirements. Penal Code section 484c, for instance, provides: "Any person who submits a false voucher to obtain construction loan funds and does not use the funds for the purpose for which the claim was submitted is guilty of [theft]."*fn4 (Pen. Code, § 484c.) This statute, which is more closely proximate to Penal Code section 484 than Penal Code section 485 is, mentions no specific intent requirement and does not use the word "feloniously" to import the common law's specific intent requirement. The fact that Penal Code section 485 and Penal Code section 484 are both classified as "theft" offenses also does not mean that the two offenses have the same mental state element. For example, a number of different offenses are classified as "rape" in Penal Code section 261 even though those offenses include both general intent and specific intent crimes. (Pen. Code, § 261, subds. (a)(2) [general intent], (a)(5) [specific intent].)
Defendant relies on People v. Buelna (1889) 81 Cal. 135 (Buelna) to support his claim that Penal Code section 485 is a specific intent crime. His reliance is misplaced. In Buelna, the defendant was charged by information with "grand larceny" and convicted as charged. He argued on appeal that the trial court had erred in instructing the jury with the language of Penal Code section 485. (Buelna, at p. 136.) He did not claim that instruction in the language of Penal Code section 485 was legally incorrect, but only that the instruction was inappropriate in his case because the information charged him with grand larceny, a different offense. The court rejected his contention using this language: "It will be seen at a glance that it was not the legislative intent to create, by the enactment of these provisions of law, any two distinct kinds of larceny, such as the defendant insists upon. The first section defines larceny generally; the second section declares a rule of evidence which, being fulfilled, constitutes the crime as defined in the first section." (Buelna, at p. 137.)
While Buelna's archaic language might seem to suggest that Penal Code section 485 is a mere "rule of evidence," that language must be understood in context. Buelna is an 1889 opinion. Penal Code section 485 was enacted in 1872 and was based on an 1864 New York penal statute. (Pacific Coast Dairy v. Police Court (1932) 214 Cal. 668, 677.) Until recently, the California Supreme Court was known to engage in the " ` "inaccurate practice of stating rules of substantive law in terms of rules of evidence." ' " (People v. Friend (2009) 47 Cal.4th 1, 75.) The California Supreme Court has since clarified that when, as Buelna put it, a statute describes what "constitutes the crime," the statute is not a "rule of evidence," as Buelna described it, but "is simply a valid exercise of the Legislature's power to create substantive law and define crimes." (People v. McCall (2004) 32 Cal.4th 175, 179, 186; Buelna, supra, 81 Cal. at p. 137.) Thus, Buelna is properly understood as holding that an information that simply charges larceny or theft is not insufficient to support a prosecution under Penal Code section 485, which is statutorily defined as a species of theft.
Indeed, the Legislature has made it clear that it understands Penal Code section 485 to define a unique species of theft that is distinct from the theft offenses described in Penal Code section 484. The Legislature has explicitly provided that a Penal Code section 485 violation may be treated by the court or charged by the prosecutor as an infraction under Penal Code section 17, subdivision (d). (Pen. Code, §§ 17, subd. (d), 19.8.) In contrast, the Legislature has deprived courts of the discretion to treat a Penal Code section 484 violation as an infraction. The only time that the Legislature has permitted a Penal Code section 484 violation to be an infraction is when the prosecutor exercises his or her discretion to charge as an infraction a petty theft of a value under $50 (Pen. Code, § 490.1). The Legislature's more lenient treatment of Penal Code section 485 violations reflects its acknowledgement that a Penal Code section 485 violation does not have the same elements as a Penal Code section 484 violation.
Defendant cites People v. Stay (1971) 19 Cal.App.3d 166 (Stay) to support his claim that Penal Code section 485 is a specific intent offense, but Stay tells us nothing about the nature of Penal Code section 485's mental state element. The defendant in Stay was charged with and convicted of grand theft. (Stay, at p. 168.) He claimed that his conduct, taking shopping carts and trying to obtain ransom from the owner of the carts, was authorized by Civil Code section 2080, which permits a "reasonable charge for saving and taking care of" lost property. (Civ. Code, § 2080.) The Second District Court of Appeal concluded that there was no evidence that the carts were "lost" property and therefore Civil Code section 2080 was inapplicable. (Stay, at p. 174.) Because the property in question was not "lost," it is clear that the defendant in Stay was not convicted of violating Penal Code section 485, which applies only to "lost property." Since Stay did not concern the required mental state for a Penal Code section 485 offense, it provides no authority for defendant's claim that Penal Code section 485 requires a specific intent.
Since Penal Code section 485 does not require a specific intent, the trial court did not prejudicially err in omitting a specific intent instruction.
Defendant asserts that the trial court prejudicially erred in two respects with regard to instructions on mistake: (1) it failed to instruct the jury with CALCRIM No. 3406 based on evidence that defendant mistakenly believed that the insurance company owned the boards, and (2) it instructed the jury that a mistake of law was not a defense.
CALCRIM No. 3406 provides: "The defendant is not guilty of if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit . [¶] If you find that the defendant believed that [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for . [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for , you must find (him/her) not guilty of (that crime/those crimes)."
Thus, defendant contends that the jury should have been instructed: The defendant is not guilty of appropriation of lost property if he did not have the intent or mental state required to commit the crime because he did not know a fact or mistakenly believed a fact. If the defendant's conduct would have been lawful under the facts as he believed them to be, he did not commit appropriation of lost property. If you find that the defendant believed that the boards belonged to the insurance company, he did not have the specific intent or mental state required for appropriation of lost property. If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for appropriation of lost property, you must find him not guilty of that crime.
The trial court's failure to give a mistake of fact instruction was not prejudicially erroneous. An erroneous failure to instruct on mistake of fact is reversible error only if it is reasonably probable that the giving of the instruction would have produced a result more favorable to the defendant. (People v. Russell (2006) 144 Cal.App.4th 1415, 1431.) First, defendant's mistaken belief that the boards belonged to the insurance company would not alone have established that he lacked the requisite mental state and therefore would not have absolved him of guilt. A violation of Penal Code section 485 does not require actual knowledge of the identity of the true owner. Even if the jury had credited defendant's claim that he believed that the boards belonged to the insurance company, the jury could have concluded that defendant was nevertheless guilty because he had "means to find" that QuickSilver, rather than the insurance company, was the true owner and failed to make "reasonable and just efforts" to return the boards to QuickSilver. QuickSilver offered to provide defendant with whatever documentation of ownership he required, but defendant disregarded both this offer and the documentation that QuickSilver sent to him. And this was after both Farmer and Roohparvar had been convinced that QuickSilver owned the boards and had provided the boards to defendant for the express purpose of having the boards returned to QuickSilver.
Second, any error in failing to give some form of instruction on mistake of fact was harmless because it is highly improbable that a rational juror would have concluded that defendant not only believed that the insurance company owned the boards and lacked the means to find that QuickSilver was the owner, but also made reasonable and just efforts to return the boards to the insurance company. The undisputed evidence of defendant's course of conduct was the antithesis of "reasonable and just." Entrusted with the simple task of returning the boards to QuickSilver, defendant abandoned that task as soon as he learned of the value of the boards and instead embarked on a mission to extract as much money as possible out of QuickSilver in exchange for the boards. His claim that he was trying to "set up" QuickSilver for insurance fraud was illogical and lacked any evidentiary support but his own trial testimony. He never mentioned this claim in his testimony at the preliminary examination, and he provided no explanation for why it was necessary to extract the largest possible amount of money from QuickSilver in order to report suspected insurance fraud to "the Department of Insurance."
Since it is not reasonably probable that a mistake of fact instruction would have produced a verdict more favorable to defendant, any error in failing to give such an instruction was not prejudicial.
Defendant's contention regarding the trial court's mistake of law instruction is based entirely on his claim that appropriation of lost property is a specific intent offense. Since we have already rejected that claim, his mistake of law contention lacks substance.
C. Ineffective Assistance
Defendant argues that his trial counsel was prejudicially deficient in failing to identify Evidence Code section 1101 as the basis for admissibility of defendant's prior act of honest conduct to show that defendant intended to return the boards to the true owner.
On direct examination of defendant, defendant's trial counsel asked him: "Have you ever come into possession of something of value that was not yours in the past?" The prosecutor objected, and an unreported bench conference ensued. The court subsequently held a hearing outside the presence of the jury to address the issue. The defense had made an offer of proof that defendant had previously "corrected a bank error that had been made in his favor for approximately $1,000" to "show that the defendant had a character trait for honesty." The evidence "wasn't offered for credibility."*fn5 The prosecution had objected under ...