IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
February 10, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SEAN JULIAN LEWIS, DEFENDANT AND APPELLANT.
Super. Ct. No. 08F03424
The opinion of the court was delivered by: Mauro,j.
P. v. Lewis 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NOT TO BE PUBLISHED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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Sean Julian Lewis, a former City of Sacramento police officer, of grand theft. (Pen. Code, § 487, subd. (a).) The trial court suspended imposition of sentence and granted defendant probation. On appeal, defendant contends the trial court misinstructed the jury that the intent required for theft could be formed after the defendant acquired property from the victim. The Attorney General concedes that the trial court prejudicially misinstructed the jury. We will accept the concession and reverse defendant's conviction.
Moreover, because of the possibility of a retrial, we also address a second issue briefed by the parties. Defendant contends his statements to interrogating peace officers should have been excluded based on the protections afforded by the Public Safety Officers Procedural Bill of Rights Act (POBRA). (Gov. Code, § 3300 et seq.) Specifically, he argues that the failure of his interrogators to advise him of his rights under POBRA rendered his statements involuntary. The record, however, does not support the contention that his statements were coerced. We will conclude that the trial court did not err in denying defendant's motion to exclude the statements.
Victim Maria S. had an intimate relationship with defendant after she separated from her husband. On January 11, 2008, she withdrew $50,443 from her bank account based on the understanding that she would not qualify for Medi-Cal coverage for her children if she disclosed the money. Defendant offered to hold her money in a savings account, and the victim gave defendant the cash. The victim asked defendant to give her a receipt so she could claim the money in case he were killed on duty, but defendant never gave her one.
The victim became concerned because defendant did not return her telephone calls for several days, and when he did call her back and she asked him to return her money, he said he had to give it to her in increments of $9,900, so as not to "flag the IRS" by large withdrawals. Within a month of receiving the victim's money, defendant gave her some money back on three occasions, twice in the amount of $9,900, and once in the amount of either $9,400 or $9,500.
The victim contacted defendant about her money several times, but he made excuses. On March 5, 2008, he sent her a text message claiming that child support garnished all but $5,000 in his bank account. A copy of that text was introduced at trial.
The victim contacted the police, who arranged for her to make a monitored telephone call to defendant on April 16, 2008. According to a transcript of the call, the victim said, "I just need to know when you're going to give me back my twenty thousand, Sean. I need, I need, I really need my money back. . . . It's a fricken lot of money. When are you going to give it back?" Defendant answered: "You act like I have it." The victim reminded defendant that he previously told her child support took the money but left him $5,000; the victim asked where the $5,000 was, that it would be "a start of paying me back." Defendant answered: "Yes, you're right" and "I will get it to you as soon as possible." But the victim never got the rest of her money.
Defendant's former wife testified defendant had always been current in his child support obligations, and a payroll employee testified defendant's child support payments were deducted automatically from his paychecks. A search on April 16, 2008, revealed a shoebox in defendant's closet containing $1,600.
Peace officers questioned defendant on April 16, 2008, and a recording of the interrogation was introduced as evidence. According to a transcript, defendant admitted that the victim gave him $50,000 in cash to hold for her, but claimed that when he found out she had done so in order to obtain some kind of public assistance, he returned it to her in one lump sum within a couple of days. She then began calling him demanding the money, and he repeatedly told her he had returned it and did not have it. Defendant stated that his child support was deducted from his paychecks, and his bank account had never been seized. During the interview, after the police played a recording of the pretext call the victim had placed and asked defendant to explain his answers, he stated he was just trying to appease her to get her off the telephone, because she called him so often. Later the officers confronted defendant with his text message saying that child support took his money except for $5,000; defendant explained that was just something he said to get her to leave him alone.
The day defendant was arrested, April 29, 2008, he signed a document resigning from the police department "for personal reasons."
I. Instructional Error
Defendant contends the trial court prejudicially misinstructed the jury on intent, and the Attorney General concedes the point. We accept the concession.
The jury was instructed on theories of theft by larceny and theft by trick. An element of theft committed by either of those theories is that the defendant had the intent to permanently deprive the victim of the property at the moment it was acquired. (See People v. Davis (1998) 19 Cal.4th 301, 305 & fn. 3; 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, §§ 13-14, pp. 32-35, § 22, pp. 41-42.) The jury was also instructed that defendant was charged with committing the theft between January 11 and April 16, 2008.
During closing argument, the prosecution argued that defendant may have formed the intent to steal either when the victim gave him the money or later, when he chose not to return it. The defense argued defendant intended to give the money back, in part as shown by the partial payments he made, but that he may have squandered the rest, and therefore lacked the intent to permanently deprive the victim of the money when he accepted it. In rebuttal, over objection, the prosecutor again emphasized the jury could convict if it found defendant formed the intent to permanently deprive the victim of her money at some point after she gave it to him.
The trial court gave further instructions to the jury after closing arguments. Regarding theft by larceny, the jury was given a pattern instruction (CALCRIM No. 1800) stating that the People had the burden to prove that "defendant took the property without the owner's consent" and "when the defendant took the property, he intended to deprive the owner of it permanently." As for theft by trick, the jury was given a pattern instruction (CALCRIM No. 1805) stating that the People had the burden to prove that the victim's consent was obtained by fraud and that "when the defendant obtained the property, he intended to deprive the owner of it permanently."
In addition, the jury was instructed that all jurors had to agree "defendant committed theft under at least one theory but all of you don't have to agree on the same theory."
During deliberations the jury submitted this question: "In [CALCRIM No.] 1800 'Theft by Larceny' #2 'took the property without owner's consent,' and [CALCRIM No.] 1805 'Theft by Trick' #3 'obtained the property.' We need clarification of the words 'took' and 'obtained.' Do these words mean only at the initial time of taking possession[?]"
Over defense objection, the trial court accepted the prosecutor's suggestion that the jury be given part of the pattern embezzlement instruction (CALCRIM No. 1806). The trial court replied to the jury's question in part as follows: "It is up to you to decide, based on all of the evidence and all of the instructions, when and whether the 'taking' occurred during the time period alleged in the information. For theft by larceny ([CALCRIM No.] 1800) the 'taking' does not have to mean only at the initial time of acquiring the property. However for theft by trick ([CALCRIM No.] 1805) the 'obtaining' must occur at the initial time of acquiring the property."
This instruction contradicted CALCRIM No. 1800, which, as stated, told the jury the necessary intent had to exist at the time defendant took the property. Therefore, as defendant contends and the Attorney General properly concedes, the trial court's reply to the jury's question was incorrect.
We agree with the parties that the error was prejudicial.
The general rule is that reversal is required where a jury is instructed on a legally insufficient theory and the appellate court cannot tell "from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory." (People v. Guiton (1993) 4 Cal.4th 1116, 1130; see People v. Brock (2006) 143 Cal.App.4th 1266, 1282-1283 (Brock).)
In this case, the jury had a question on the issue of when the intent to steal was formed, and the clarifying instruction gave the wrong answer. The charges embraced a time period after the money was transferred, and the People explicitly argued the intent to steal could be formed after possession had passed. There was evidence from which the jury could have found defendant did not form the intent to keep the money until some point after he received the cash. Yet, under the clarifying instruction, the jury was told that if it so found, it should convict. In such circumstances, we cannot find the error harmless. (See Brock, supra, 143 Cal.App.4th at p. 1282, fn. 13 ["based on the evidence presented and the prosecutor's closing argument, we would find the instructional error reversible under any standard"].) The judgment must be reversed.
II. Motion to Suppress
Defendant contends the trial court should have granted his motion to suppress statements he made to fellow peace officers. Specifically, defendant asserts that because he was not given the admonition set forth in Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822 (Lybarger), his statements were taken in violation of POBRA and must be deemed coerced. We disagree. Because the issue may arise again on remand, we address the contention for the benefit of the parties and the trial court.
Government Code section 3303 provides in part: "When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions."
Two conditions are relevant here. First, the officer "shall not be . . . threatened with punitive action, except that an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action." (Gov. Code, § 3303, subd. (e).) Second, if "prior to or during the interrogation . . . it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights." (Id., subd. (h).)
These conditions were construed in Lybarger, supra, 40 Cal.3d 822, a case involving administrative discipline of a peace officer. Lybarger concluded that under POBRA, a peace officer facing "an administrative inquiry into possible criminal misconduct" should have been told "that although he had the right to remain silent and not incriminate himself, (1) his silence could be deemed insubordination, leading to administrative discipline, and (2) any statement made under the compulsion of the threat of such discipline could not be used against him in any subsequent criminal proceeding." (Lybarger, supra, 40 Cal.3d at p. 829.)
As shown by the two cases cited by Lybarger in support, the relevant constitutional rule is that a coerced statement is not admissible in a criminal proceeding, and that threatening an individual with removal from office amounts to coercion. (Garrity v. New Jersey (1967) 385 U.S. 493, 497, 500 [17 L.Ed.2d 562, 565, 567] ["The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent"]; Lefkowitz v. Turley (1973) 414 U.S. 70, 77-85 [38 L.Ed.2d 274, 281-286] [Garrity rule extended to government contractors, who were entitled to immunity if compelled to answer questions]; see Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 714-724.)
"In reviewing the trial court's determinations of voluntariness, we apply an independent standard of review, doing so 'in light of the record in its entirety, including "all the surrounding circumstances -- both the characteristics of the accused and the details of the [encounter]" . . . .'" (People v. Neal (2003) 31 Cal.4th 63, 80.) "A statement is involuntary [citation] when, among other circumstances, it 'was "'extracted by any sort of threats . . . , [or] obtained by any direct or implied promises, however slight . . . .'"' [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the 'totality of [the] circumstances.'" (Id. at p. 79.)
There is no evidence of coercion in this case. Although defendant contends his statements were not voluntary because he was not given the Lybarger admonition, the record does not support his contention.
In a police report attached to defendant's motion, Detective Westgate stated that on April 16, 2008, defendant was told that the victim claimed he had not returned $20,500 to her. Defendant signed a form consenting to a search of his residence, vehicle and locker, and then was shown a search warrant. His locker was then searched. Defendant was then told that officers "wanted to interview him regarding the allegations being made against him. Before this interview could start the directive was given to move to the Internal Affairs office on Freeport Blvd. Lt. Reese, Sgt. Eklund, Officer Lewis and I then drove to the Internal Affairs office . . . . [¶] At this location in an interview room I spoke with Sean Lewis about talking to him and that I wanted to read him a Miranda[*fn1 ] warning first. Lewis stated that this indicated to him that an arrest was going to occur. I told him I had no arrest intentions. Sean then consented to the Miranda warning and I advised him of his constitutional right against self incrimination by reading the Miranda warning to him aloud. Sean stated that he understood and did not have any questions about them. Sean stated that he wanted to talk and I told him to go ahead."
A summarized statement from Internal Affairs Sergeant Eklund, attached to defendant's motion, states that he "explained to Lewis about how the criminal investigation and the IA investigation work and that they are two separate things. I wanted to make sure he understood this. [¶] We then went to search Lewis' locker and when we were done I told him I was placing my lock on his locker because he would probably be placed on administrative leave while this investigation was going on. [¶] We then took Lewis to the main office on Freeport. I again explained to Lewis the difference between the criminal and IA investigations. I told him that he did not have to talk to the criminal investigators if he did not want to but that he had to give a statement to the IA investigators. Westgate and Reese then took him into an interview room to take a statement which I did not take part in."
The transcript of the interrogation begins with an officer giving defendant the standard Miranda warnings, including that defendant had the right to remain silent, and defendant's statement that he understood his rights. There was no claim in the trial court that Sergeant Eklund's statement to defendant that defendant would have to speak to internal affairs equated to a Lybarger admonition.
The trial court denied the motion without conducting a factual hearing, based on the arguments of counsel. At trial, there was testimony that Sergeant Jeff Watson, from internal affairs, was present during the interrogation. Defendant's motion was renewed at trial, both before and after the testimony about Sergeant Watson's presence during the interrogation.
The record establishes that defendant was questioned by the detectives investigating the criminal case, not by the internal affairs officer. Moreover, defendant was informed twice about the difference between the criminal and administrative investigations, he was told he did not have to answer the criminal investigators' questions, and the interrogation began by an officer reading defendant his Miranda rights, including his right to remain silent. Defendant was never told that a refusal to speak to the criminal investigators would subject him to discipline. Defendant said he understood his rights and did not have any questions about them. Defendant said he wanted to talk to the officers. We see nothing coercive about this fact pattern.
Defendant correctly points out that he was told he would have to answer questions by internal affairs. Sergeant Eklund explained to defendant the difference between the criminal and administrative investigations, both at the station and at the internal affairs office, and told defendant "that he did not have to talk to the criminal investigators if he did not want to but that he had to give a statement to the IA investigators." It is also true that the questioning by the criminal investigators was conducted at the internal affairs office, and that an internal affairs officer was present. These facts do not establish, however, that defendant was coerced into answering the questions posed by the criminal investigators.
Defendant claims that at one point in the interrogation his job status was threatened. We disagree. At one point, 26 pages into the interrogation, an officer stated that the victim was making a serious allegation "[a]nd it's gone to a level now where it's more than just you know, 'Hey, when are you gonna pay me back?' It's -- she's got your job involved with it, she's got us involved with it, she's got a criminal investigation involved with it."
Read in context, the officer was simply explaining again what Sergeant Eklund had told defendant twice before the questioning began, that the victim's allegations had triggered both a criminal investigation and an internal affairs investigation. The passage does not establish that defendant was coerced to answer questions.
Based on the totality of the circumstances, we conclude that defendant's statements were not coerced, and the trial
court did not err in denying defendant's motion to exclude the statements.
The judgment is reversed and the cause remanded to the trial court for retrial or other proceedings consistent with this opinion.
NICHOLSON, Acting P.J.