California Court of Appeals, First District, First Division
CERTIFIED FOR PARTIAL PUBLICATION [*]
San Francisco City and County Superior Court No. 00214256, Hon. Carol Yaggy, Trial Judge
Charles Marson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman and Christopher J. Wei, Deputy Attorneys General Plaintiff and Respondent.
Margulies, Acting P.J.
Defendant Hoang V. Nguyen was convicted of burglary after he was found by an electronics store security guard to have exchanged more expensive laptop computers for a less expensive printer in the printer’s box. In instructing the jury on theft, the trial court instructed only on the elements of theft by larceny. Defendant argues his intended crime was not larceny but, if anything, theft by false pretenses. Because the jury was not instructed on the elements of theft by false pretenses, he contends, his convictions must be reversed. He also contends the trial court erred in denying a purported Marsden motion and in calculating custody credits. Because we find substantial evidence to support a conviction for attempted theft by larceny and reject defendant’s other contentions, we affirm.
Defendant was charged in an amended information, filed May 20, 2011, with second degree burglary (Pen. Code, § 459) and attempted grand theft (Pen. Code, §§ 487, subd. (a), 664). Defendant was alleged to have served one prior prison term. (Pen. Code, § 667.5, subd. (b).)
Defendant entered an electronics store and walked to the computer department. One of the store’s loss prevention officers, Angel Gonzalez, watched as defendant opened a box, placed something under it, and left the store. When Gonzalez checked the aisle where defendant had been, he found a printer that had been removed from its box and placed on a bottom shelf behind other items, but he was unable to locate a corresponding empty printer box. Gonzalez took the printer, which retailed for about $100, to the front of the store.
Soon after, defendant reentered the store. Gonzalez again watched on a security camera as defendant returned to the computer department. He saw defendant pick up an opened box and bring out a roll of tape from inside his jacket. At this Gonzalez left his station to confront defendant. When he arrived, Gonzalez found defendant in the process of sealing a printer box. Looking inside, Gonzalez found two laptop computers, which retailed for $450 each. Because of the positioning of the computers in the box, it would have been difficult to tell from the outside that they had been substituted for the cheaper printer. Defendant was detained and arrested.
The trial court instructed the jury on burglary and attempted grand theft by larceny pursuant to CALCRIM Nos. 460, 1800, and 1801. As given by the court, the elements of theft by larceny were (1) defendant took possession of property owned by someone else, (2) defendant took that property without the owner’s consent, (3) when defendant took the property he intended to deprive the owner of it permanently, and (4) defendant moved the property and kept it for a period of time.
During deliberations, the jury sent a note asking, “Are theft and defraud the same? Meaning, because his intent to pay for a lesser item, is that the definition of theft?” The court responded, “Members of the jury, please refer to instruction number 1800. The owner’s consent cannot be obtained by fraud or deceit.” The court explained to counsel, “The Court extrapolated that language from the theft-by-trick instruction. I declined to give the entire theft-by-trick instruction, but I thought that portion was appropriate in the context of this case.”
Defendant was found guilty of burglary and the lesser included offense of attempted petty theft, and the court later found the prior prison term allegation to be true. At sentencing, the court dismissed the attempted petty theft conviction and sentenced defendant to a term of four years on the burglary charge.
On the evening after his conviction, defendant sent a letter to the judge, penned by another inmate, complaining his counsel “did little, if anything whatsoever to defend me in my trial” and did not advise him about the risks of trial, instead telling defendant to fight the case because he had a strong defense. Construing the letter as a request for new counsel under Marsden, supra, 2 Cal.3d 118, the trial court held a hearing and asked defense counsel for a response. Counsel essentially denied the claims, explaining he always advises his clients about the risks of going forward to trial. Defense counsel also denied defendant’s charge, made during thehearing, that he did not convey the prosecution’s plea offer. During his explanation, counsel noted that all of his conversations with defendant had occurred in English, rather than defendant’s native Vietnamese, and speculated this might have resulted in a miscommunication. Somewhat in contradiction, counsel explained defendant’s English skills were sufficiently good that “it never occurred” to him defendant might need an interpreter. Based on its ...