Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05HF2236, Susanne S. Shaw, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Michael James Reilly challenges his convictions for forgery and grand theft by employee. We affirm the forgery convictions, rejecting his claims of juror bias and improper jury instructions. We reverse the grand theft by employee conviction, as insufficient evidence showed his employment status at the time of the theft.
FACTS
In April 2005, a temporary employment agency assigned defendant to work for Cash Call, a consumer lending company. Defendant called Cash Call customers to secure payment of their loans. Cash Call encouraged their customers to pay with “checks by phone.” The customers would provide their banking information (bank account, check routing, and check numbers), which allowed Cash Call to create and deposit physical checks.
Cash Call issued a bonus check to defendant on May 11, 2005. The check contained Cash Call’s banking information. Defendant called his credit card company on May 27, 2005, and made a $250 payment using a “check by phone.” He provided Cash Call’s banking information and the check number 2682. Defendant made a $260.50 “check by phone” payment to his credit card company on June 1, 2005, again providing Cash Call’s banking information and the check number 9998.
Defendant was charged and convicted of two counts of forgery (Pen. Code, § 470, subd. (d)) and one count of grand theft by employee (§ 487, subd. (b)(3)). The court sentenced him to 16 months in state prison on one forgery count, a concurrent 16-month term on the other forgery count, and a concurrent eight-month term on the grand theft by employee count. It struck a prior conviction for sentencing purposes.
All further statutory references are to the Penal Code.
Defendant was also charged with two counts of making false financial statements. (§ 532(a), subd. (1).) The court dismissed these counts on defendant’s motion. (§ 1118.1.)
DISCUSSION
Insufficient Evidence Showed Cash Call Employed Defendant at the Time of the Thefts
Defendant contends his grand theft by employee conviction must be reversed because no substantial evidence showed Cash Call employed him at the time of the thefts. Section 487, subdivision (b)(3), defines grand theft as including a theft “[w]here the money . . . is taken by a[n] . . . employee from his or her . . . employer and aggregates four hundred dollars ($400) or more in any 12 consecutive month period.” The parties do not dispute that for defendant to be liable for grand theft by employee, he must have been employed at Cash Call on the dates he used Cash Call’s banking information to make payments on his credit card: May 27 and June 1, 2005.
“‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.) We “view the evidence in the light most favorable” to the verdict, and presume the existence of every fact the jury might reasonably deduce from it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Still, evidence must be “reasonable, credible, and of solid value” to be substantial. (Johnson, 26 Cal.3d at p. 578.)
No substantial evidence showed Cash Call employed defendant on the dates of the thefts. The latest date on which the record shows defendant worked at Cash Call is May 11, 2005, when he received his bonus check. The prosecution offered no direct evidence defendant still worked there on May 27 or June 1, 2005. The lack of such evidence is puzzling, as Cash Call’s human resources director and the staffing agency’s owner each testified at trial. Either witness presumably could have testified to the dates of defendant’s employment at Cash Call. The Attorney General suggests the jury could have reasonably inferred defendant continued working at Cash Call for some time after May 11, 2005. Perhaps so, for some short time. But drawing that inference for the amount of time involved here — 16 and 21 days — demands too big a leap. Defendant was a temporary employee assigned to Cash Call by a staffing agency. A reasonable jury could not conclude that a temporary employee continued to work at his assignment for two or three weeks after the last date that any substantial evidence showed he worked there.
No testimony supports the Attorney General’s inference. Cash Call’s human resources director testified that the Cash Call’s controller told her on June 3, 2005, that “something had come back on a person that worked for Cash Call . . . .” The Attorney General suggests this shows the person involved (defendant) still worked for Cash Call on June 3, 2005. Not so. The controller used the past tense — the person “worked” for Cash Call. She did not use a present tense, such as “works” or “working.” All the jury could reasonably infer from the controller’s statement is that defendant worked at Cash Call some time before June 3, 2005. It could not reasonably conclude defendant still worked at Cash Call on that date.
Because no substantial evidence shows defendant was employed at Cash Call on the dates of the thefts, insufficient evidence supports his conviction for grand theft by employee. (§ 437, subd. (b)(3).) His conviction on this count must be reversed.
There Was No Prejudicial Juror Bias
Defendant contends his conviction was marred by juror bias. After opening statements, a juror informed the court that he was a commercial real estate broker and had represented the office park that leased office space to Cash Call. The juror had negotiated a lease with Cash Call’s CEO, CFO, and general counsel. But he had no involvement in Cash Call’s day-to-day business operation. He did not know the prosecution witnesses or defendant. The court asked him whether his contact with Cash Call was “going to make any difference to [him] as to how [he] decide[s] the facts?” The juror stated, “Well, I just needed to first of all share that.” He then answered the court, “No, I mean, you know.” Defendant moved for a mistrial, which the court denied.
Every defendant has “a constitutional right to a trial by unbiased, impartial jurors.” (People v. Nesler (1997) 16 Cal.4th 561, 578 (Nesler).) “Juror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias.” (Ibid.) The presumption of prejudice is rebutted if “substantial likelihood” exists of “inherent” or “actual” juror bias. (Id. at pp. 578-579.) Inherent juror bias arises when the “extraneous material, judged objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror.” (Ibid.) Actual bias arises when the juror becomes “unable to put aside her impressions or opinions based upon the extrajudicial information she received and to render a verdict based solely upon the evidence received at trial.” (Id. at p. 583.) In determining whether actual bias exists, “[w]e look to the entire record,” including “the nature of [the juror’s] misconduct and all the surrounding circumstances.” (Ibid.)
No substantial likelihood exists that the juror held an inherent or actual bias against defendant. The juror was on the opposite side from Cash Call in one leasing deal. He had no involvement with Cash Call’s lending operations or collections practices, and no knowledge of the prosecution witnesses or defendant. His limited, adverse contact with Cash Call representatives uninvolved with this case is not “so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror.” (Nesler, supra, 16 Cal.4th at pp. 578-579 [discussing inherent bias].) And no substantial evidence suggests that the juror was “unable to put aside [his] impressions or opinions” of Cash Call and “render a verdict based solely on the evidence received at trial.” (Id. at p. 583 [discussing actual bias].)
Defendant notes his trial counsel observed the same juror “slumping” during the trial, possibly using an email device. The juror denied using the device. The court accepted his denial. So do we. (Nesler, supra, 16 Cal.4th at p. 582 [“[w]e accept the trial court’s credibility determinations”].)
Defendant contends the court did not conduct a sufficient inquiry because it did not directly ask the juror whether he could be “fair and impartial.” But nothing requires the court to do this. To the contrary, it would be insufficient for the court merely to ask a juror whether he or she can be fair and impartial. (People v. McNeal (1979) 90 Cal.App.3d 830, 838.) “It is not enough for the juror alone to evaluate the facts and conclude that they do not interfere with his or her impartiality.” (Ibid.) Rather, the court must inquire into the “factual explanation” for the juror’s alleged bias. (Ibid.) The court did so here. It reached its conclusion that the juror was unbiased after thoroughly questioning the juror about his involvement with Cash Call, in a discussion that consumes three transcript pages. Nothing more was required.
The Jury Instructions Were Correct
Defendant contends a modified forgery instruction allowed the jury to convict him on the two forgery counts without unanimously agreeing he committed a separate forgery as to each count. When defining the offense of forgery, the court instructed the jury, “The People allege that the defendant passed, or used, the following documents: Count 3, check number 2682 and Count 4, check number 9998. You may not find the defendant guilty unless you all agree that the People have proved that the defendant passed, or used, at least one document that was false, or counterfeited [and] you all agree on which documents he passed, or used.” Defendant claims this instruction wrongly invited the jury to convict him on both forgery counts, even if it found he passed or used only one false document. He contends the court should have given a clearer unanimity instruction.
“[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’” (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
The instruction sufficiently advised the jury to base its verdicts on counts 3 and 4 on the use of two different forged instruments. The instruction specifies which check underlies each count: “Count 3, check number 2682 and Count 4, check number 9998.” It is hard to imagine how the instruction could have more clearly directed the jury to base its verdicts on counts 3 and 4 on separate acts of forgery — it is an unambiguous unanimity instruction. Moreover, even in the absence of a unanimity instruction, a “conviction will be upheld if the prosecution elected which act it would rely upon for each allegation . . . .” (People v. Burnett (1999) 71 Cal.App.4th 151, 174.) The prosecution specified which check corresponded to each count in closing argument, stating, “Now there [are] two checks. So you have to come to a decision on both checks.” And the verdict forms did so as well. The verdict form for count 3 indicated, “(5/27/05-check #2682 for $250.00).” The verdict form for count 4 indicated, “(6/1/05-check #9998 for $260.50).” For this reason too, there is no instructional error.
Defendant also challenges many standard jury instructions. “‘It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’” (People v. Anderson (2007) 152 Cal.App.4th 919, 928-929 (Anderson).) “Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant’s substantial rights.” (Id. at p.927.) Instructional error leads to reversal only if it is reasonably probable that the defendant would have obtained a more favorable result had the error not occurred. (Ibid.; People v. Watson (1956) 46 Cal.2d 818, 836.) No individual or cumulative instructional error exists, as shown below.
Defendant first challenges the standard jury instructions on note-taking. The court instructed the jury, “You may use your notes only to remind yourself of what happened during the trial, but remember, your notes may be inaccurate or incomplete.” (Judicial Council of Cal. Crim Jury Instns. (2006-2007), CALCRIM No. 102.) It further instructed the jury, “You must accept the court reporter’s notes as accurate.” (CALCRIM Nos. 104, 222.) Defendant contends these instructions are wrong because the jurors may have taken accurate notes. But the California Supreme Court has endorsed giving such cautionary instructions about note-taking as the “‘better practice.’” (People v. Silbertson (1985) 41 Cal.3d 296, 303.) Moreover, the record is silent on juror note-taking. Defendant has not shown whether any juror took notes, failed to take notes, or deferred to the court reporter’s notes. The absence of any such evidence precludes a finding of prejudice. (Anderson, supra, 152 Cal.App.4th at p. 927.)
Defendant also challenges the standard jury instructions on the jury’s fact-finding duty. The court instructed the jury, “You must decide what the facts are in this case.” (CALCRIM No. 104.) It further instructed the jury, “You must decide what the facts are. It is up to you, exclusively, to decide what happened.” (CALCRIM No. 200.) Defendant contends these instructions undermine the presumption of innocence by directing the jury to find “the truth” rather than decide whether the prosecution proved guilt beyond a reasonable doubt. But the court also instructed the jury that the prosecution was required to “prove each element of a crime beyond a reasonable doubt.” (CALCRIM No. 220.) No reasonable likelihood exists that the jurors misunderstood the instructions as lowering the reasonable-doubt standard. (Anderson, supra, 152 Cal.App.4th at pp. 928-929; People v. Smithey (1999) 20 Cal.4th 936, 963.)
Next, defendant challenges the standard jury instruction on disregarding punishment. The court instructed the jury, “You must reach a verdict without any consideration of punishment.” (CALCRIM No. 200.) He contends this coerced the jury to reach a verdict. But “defendant reads the instruction with the wrong emphasis on the sentence in question. That sentence does not tell the jury it must reach a verdict, but tells the jury that, in reaching a verdict, it must not consider punishment.” (Anderson, supra, 152 Cal.App.4th at p. 929.) Moreover, the court instructed the jury, “[y]ou should try to agree on a verdict if you can,” and “[i]f you are able to reach a unanimous decision on only one or only some of the charges, fill in [those] verdict forms only.” (CALCRIM No. 3550.) No reasonable likelihood exists that the jurors misunderstood the instructions as demanding a verdict. (Anderson, supra, 152 Cal.App.4th at p. 929.)
Moving on, defendant challenges the standard jury instruction on reasonable doubt. The court instructed the jury, “You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.” (CALCRIM No. 220.) Defendant claims this instruction allowed the jury to be biased against defendant for any basis other than the three excluded reasons. This is an absurd, rejected interpretation of the instruction. (Anderson, supra, 152 Cal.App.4th at p. 944.) Moreover, the court instructed the jury, “Do not let bias, sympathy, prejudice, or public opinion influence your decision.” (CALCRIM No. 200.) No reasonable likelihood exists that the jurors misunderstood the instructions as authorizing bias. (Anderson, supra, 152 Cal.App.4th at pp. 929, 944.)
Defendant further challenges the standard jury instructions on direct and circumstantial evidence. The court instructed the jury, “Facts may be proved by direct or circumstantial evidence or by a combination of both.” (CALCRIM No. 223.) It further instructed the jury that neither type of evidence “is entitled to any greater weight than the other.” (Ibid.) It also instructed the jury that, before it could rely on circumstantial evidence to decide defendant’s intent or mental state, it “must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt” and “must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state.” (CALCRIM No. 255.) Defendant contends these instructions forbade the jury from weighing direct evidence against circumstantial evidence, allowed the jury to convict him because they were merely “convinced” (even if not beyond a reasonable doubt), and improperly directed the jury to accept any direct evidence of his intent or mental state (even if it led to two reasonable conclusions, one of which was consistent with innocence). These meritless contentions have already been rejected. (Anderson, supra, 152 Cal.App.4th at pp. 929-934.) Moreover, the court instructed the jury, “Unless the evidence proves the defendant guilty beyond a reasonable doubt, he’s entitled to an acquittal and you must find him not guilty.” (CALCRIM No. 220.) No reasonable likelihood exists that the jurors misunderstood the instructions as forbidding the weighing of evidence or lowering the reasonable-doubt standard. (Anderson, supra, 152 Cal.App.4th at pp. 929-930.)
Next, defendant challenges the standard jury instruction on witness credibility. The court instructed the jury, “People sometimes honestly forget things or make mistakes about what they remember.” (CALCRIM No. 226.) Defendant claims this instruction “provides an eyewitness with a false aura of credibility” because it downplays the frequency with which people forget things or make mistakes — they only happen “sometimes.” “But . . . the function of the challenged statement is not to comment on the witness’s credibility but to caution against rejection of the witness’s testimony just because of inconsistencies or conflicts in it.” (Anderson, supra, 152 Cal.App.4th at p. 936.) Moreover, defendant does not identify any eyewitness testimony in this case that would have been given a “false aura,” precluding a finding of prejudice. (Id. at p. 927.)
Defendant actually prefers the much-maligned formulation, “innocent misrecollection is not uncommon.” “[J]udges and attorneys, not to mention jurors themselves, have expressed frustration at the ‘legalistic’ nature of the language of many of the [jury] instructions. Should we really be content with language like ‘Innocent misrecollection is not uncommon?’ Why not something like ‘People sometimes honestly forget things?’” (Waldrip, “Could You Repeat That, Please?” (Sept. 2001) 43 Orange County Lawyer 46.)
Defendant also challenges the standard jury instruction on producing evidence. The court instructed the jury, “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.” (CALCRIM No. 300.) Defendant claims this instruction suggests the defense is required to offer at least some witnesses or evidence. Courts have rejected this tortured construction. (Anderson, supra, 152 Cal.App.4th at p. 938; People v. Simms (1970) 10 Cal.App.3d 299, 313.) Moreover, the court instructed the jury that defendant was presumed innocent and may “rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.” (CALCRIM No. 355.) No reasonable likelihood exists that the jurors misunderstood the jury instructions as requiring the defense to offer evidence. (Anderson, supra, 152 Cal.App.4th at pp. 929, 938.)
Finally, defendant challenges all the standard jury instruction that refer to the jurors collectively as “you.” Defendant claims these instructions undermine the personal responsibility of each individual juror. “[W]e do not agree the term ‘you’ necessarily reflects a collective reference. It can just as easily be understood by the individual jurors as a reference to him or to her directly. . . . There is nothing inherently misleading in this terminology.” (Anderson, supra, 152 Cal.App.4th at p. 952.)
DISPOSITION
The conviction on the grand theft by employee count is reversed. The matter is remanded to the trial court with directions to strike the conviction on the grand theft by employee count, prepare an amended abstract of judgment reflecting no conviction on this count, and forward a certified copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J. FYBEL, J.