People v. Baratang

• Decision Date: 22 October 2020
• Docket Number: A155108
• Citation: People v. Baratang, 56 Cal.App.5th 252, 270 Cal.Rptr.3d 280 (Cal. App. 2020)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jedevan BARATANG, Defendant and Appellant.
• Court: California Court of Appeals

56 Cal.App.5th 252

270 Cal.Rptr.3d 280

The PEOPLE, Plaintiff and Respondent,

v.Jedevan BARATANG, Defendant and Appellant.

A155108

Court of Appeal, First District, Division 3, California.

Filed October 22, 2020

Paula Rudman and Nathaniel Miller under appointment by the Court of Appeal; Law Office of Emily K. Andrews and Emily K. Andrews, San Francisco, for Defendant and Appellant.

Xavier Becerra, Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Basil Williams and Allen Crown Deputy Attorney General for Plaintiff and Respondent

FUJISAKI, J.

A jury convicted defendant Jedevan Baratang of felony theft from an elder under Penal Code section 368, subdivision (d).¹ On appeal, defendant contends, among other things, that the trial court prejudicially erred by instructing the jury it could convict defendant of felony elder theft based on an identity theft theory regardless of the value of the property taken or obtained. We conclude the court's instruction contradicts the plain language and legislative history of section 368, and the error cannot be deemed harmless beyond a reasonable doubt. Accordingly, the conviction must be reversed.

FACTUAL AND PROCEDURAL BACKGROUND ²

On June 12, 2017, defendant was charged with one felony count of theft from an elder or dependent adult in violation of section 368, subdivision (d) ( section 368(d) ). The information alleged that, between March 21 and May 27, 2016, defendant had committed theft with respect to the property and personal identifying information of Gloria C., having a value exceeding $950.³ Gloria C. is the sister of C.B., who had married defendant's father E.B. in 2011.

A. Guilt Phase

At trial, C.B. testified she first noticed signs of dementia in Gloria C. around 2011. As Gloria C.’s mental condition worsened in 2015, C.B. became increasingly concerned and kept Gloria C.’s debit card in her bedroom drawer. C.B. and E.B. testified that defendant had been living with them in South San Francisco, but in 2016 was "going back and forth" between South San Francisco and Los Angeles. E.B. testified that in May or June 2016, he visited defendant in the Los Angeles area, specifically in the city of Bellflower.

C.B. testified that in May 2016, she received a call from a social worker who told her that someone was using Gloria C.’s debit card. C.B. then searched for the debit card in her bedroom drawer and realized it was missing. The only persons who had access to C.B.’s room were C.B., E.B., and defendant.

Gloria C.’s bank statements from February to July 2016 were admitted into evidence. South San Francisco peace officer Kathleen Walsh testified regarding those records, and identified 120 "suspicious" transactions. In particular, 109 of those transactions took place in Southern California and were suspicious because Gloria C. lived in South San Francisco. Walsh testified that transactions took place at restaurants, electronic stores, phone stores, and a smoke shop in and around South San Francisco.

As part of the prosecution's case, Officer Walsh testified concerning two back-to-back withdrawals from Gloria C.’s bank account at an ATM in Bellflower on May 11, 2016. Walsh testified that $200 was withdrawn in the first transaction and $500 was withdrawn in the second transaction, totaling $700. Surveillance footage and photographs from the Bellflower ATM machine taken on May 11, 2016 were admitted into evidence. Walsh testified that she recognized defendant as the individual depicted in the surveillance photographs and that he appeared to be alone. With regard to the balance of the 120 suspicious transactions, the prosecution introduced circumstantial evidence that defendant lived in the general area where the suspicious transactions occurred; that he was "going back and forth" to Los Angeles since January 2016; and that he smoked but neither Gloria C. nor C.B. smoked (though E.B. did smoke). Walsh testified that the total amount taken from Gloria C.’s bank account as a result of the suspicious transactions was $8,710.44.

Gloria C. was unavailable to testify at trial because of her dementia. Gloria C.’s treating physician and two neuropsychologists who had evaluated her testified that her dementia was severe.

B. Jury Instructions

The trial court instructed the jury, pursuant to CALCRIM No. 1861, that defendant was being "prosecuted for theft from an elder under 2 theories: (1) theft by larceny; and (2) identity theft." The instruction stated that "[e]ach theory of theft has different requirements" and explained that, to find defendant guilty, the jury must agree that "the People have proved that the defendant committed theft under at least one theory" but "all of you do not have to agree on the same theory."

The trial court then instructed the jury on the elements of larceny and identity theft using CALCRIM No. 1800 and CALCRIM No. 2040, respectively. As given, CALCRIM No. 1800 informed the jury that the People must prove the following four elements for theft by larceny: (1) defendant took possession of property owned by someone else; (2) defendant took the 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 any period of time. CALCRIM No. 2040 instructed that the People must prove the following three elements for identify theft: (1) defendant willfully obtained someone else's personal identifying information; (2) defendant willfully used that information for an unlawful purpose; and (3) defendant used the information without the consent of the person whose identifying information he was using.

The trial court next instructed the jury on the elements of theft from an elder under section 368(d), starting with CALCRIM No. 1807. The standard CALCRIM No. 1807 instruction states that the People must prove four elements for felony elder theft under section 368(d) based on the theories of theft by larceny or identity theft: (1) "The defendant committed theft or identity theft"; (2) "The property taken or personal identifying information used was owned by or that of an elder"; (3) "The property, goods, or services obtained was worth more than $950"; and (4) "The defendant knew or reasonably should have known that the owner of the property or person to whom the identifying information belonged was an elder." Here, however, the trial court modified the third element of CALCRIM No. 1807 by adding a parenthetical phrase that "this element only applies to theft from an elder adult based on the theory of theft by larceny[.]"

The trial court explained its rationale for the instructional modification at a hearing concerning jury instruction issues. Citing People v. Sanders (2018) 22 Cal.App.5th 397, 231 Cal.Rptr.3d 477, the court observed that identity theft is based on a violation of section 530.5, and that an offense under section 530.5 is not subject to a minimum dollar threshold. In viewing sections 368(d) and 530.5 together, the court concluded the instruction's "worth more than $950" requirement could not apply to identity theft because it would lead to the "absurd result" that identity theft committed against a 40-year-old person could be a felony under section 530.5 regardless of value, whereas identity theft committed against an elder under section 368(d) could be a felony only if an amount of more than $950 was proven. Defense counsel objected to the instruction as modified.

C. Closing Arguments

In her closing argument, the prosecutor argued "there's two different ways the defendant can be guilty of what's charged. You have to find that the defendant committed theft by larceny, which we'll talk about in a second, or identity theft, two different crimes." After explaining that theft by larceny requires "[t]he property, goods, or services obtained was worth more than 950," she cautioned the jury that "that element only applies to theft by larceny." She proceeded to repeat that larceny is "the only one that requires that it be more than 950" and then added, "[i]dentity theft doesn't." For identity theft, she emphasized, "I don't even need to prove that he got anything for it."

In wrapping up, the prosecutor pivoted to how the jury might convict defendant for theft from an elder under section 368 : "So I would submit to you that both theories here apply. You don't have to each agree, Oh, yes, all 12 of us say identity theft or all 12 of us say theft by larceny. You all just have to agree that a theft took place; and of what kind, it's up to you to decide."

During her closing argument, defendant's counsel contended the evidence fell short of establishing defendant's guilt of the charged felony offense because the prosecutor had not proven a violation of section 368(d) in excess of the $950 threshold. Specifically, while acknowledging the surveillance footage at the Bellflower ATM confirmed that defendant made withdrawals of $200 and $500, counsel pointedly remarked, "That's less than $950." She then argued that there was only circumstantial evidence regarding all the other purportedly suspicious transactions, and that there was no excuse for the People having neglected to investigate or obtain any surveillance footage of any of these other transactions. Defense counsel also questioned why Officer Walsh's report did not support her testimony that she had in fact investigated certain places and ascertained their surveillance records were gone. Defense counsel then argued these and other deficiencies raised a reasonable doubt as to defendant's responsibility for those other transactions.

On rebuttal, the prosecutor reminded the jurors that the monetary threshold requiring a value of more than $950 did not apply to identity theft under section 368 and urged them to find defendant guilty of felony theft from an elder even if they were to find defendant guilty only of the two May 11 ATM withdrawals...