People v. Seo

• Decision Date: 12 May 2020
• Docket Number: G057597
• Citation: 48 Cal.App.5th 1081,262 Cal.Rptr.3d 497
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. SUNG JUE SEO, Defendant and Appellant.

48 Cal.App.5th 1081

262 Cal.Rptr.3d 497

The PEOPLE, Plaintiff and Respondent,

v.SUNG JUE SEO, Defendant and Appellant.

G057597

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

Filed May 12, 2020

Alex Coolman, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

IKOLA, J.

A jury convicted defendant Sung Jue Seo of carrying a loaded firearm in a vehicle ( Pen. Code, § 25850, subds. (a), (c)(7) ; count 4),¹ a misdemeanor, and possession of counterfeiting equipment (§ 480, subd. (a); count 5), a felony.² Imposition of sentence was suspended and defendant was placed on formal probation for three years with the term, among others, that he serve 240 days in county jail.

On appeal, defendant seeks reversal of his conviction for violating section 480, subdivision (a) (hereafter section 480(a)), possession of counterfeiting equipment. Because the basis for the charge was the possession of "ordinary office supplies," he contends the jury should have been instructed that the offense requires possession of counterfeiting materials with a "fraudulent intent" rather than a "criminal intent." He asserts the court's failure to properly instruct the jury on the mens rea element of the offense was prejudicial error. He argues, in the alternative, that if the jury was correctly instructed that the offense requires proof of "criminal intent" then the statute is unconstitutionally vague.

The court's instruction was based on language used in a 153-year-old California Supreme Court case, People v. White (1867) 34 Cal. 183 ( White ), and its very limited progeny. Thus, we cannot say the instruction was legally erroneous, but it surely lacked clarity. We publish this decision to offer our suggestion on how a jury should be instructed on the elements of a section 480(a) offense. The following instruction would convey both the nature of the prohibited act and the mental state required to convict a defendant of violating section 480(a).

The defendant is charged [in Count __] with possession of counterfeiting equipment [in violation of Penal Code section 480 ].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant possessed any insert type of equipment possessed, e.g., inkjet printer> made use of in counterfeiting ;

2. The defendant knew of the presence of these items;

AND

3. The defendant knew that the items he or she possessed had been or will be used in counterfeiting .

Although we offer this instruction as having greater clarity, we reject defendant's contention that the court's instruction (that defendant must have only a criminal intent) constituted prejudicial error. If the lack of clarity constituted error, it was harmless beyond a reasonable doubt. We also reject defendant's assertion that section 480(a) is unconstitutionally vague. Accordingly, we affirm the judgment.

FACTS

After a rental car that had been kept weeks past its return date was found in a motel parking lot, a Buena Park police officer began surveilling it. A few hours later, the officer approached defendant as he was loading boxes and duffel bags into the backseat of the car. Upon searching defendant's motel room, the officer found several pieces of linen paper on the floor and in the trash can; one had an outline of a $20 bill on it.

When the police searched the boxes and bags defendant had been loading into the car, they found a loaded handgun registered to defendant in a computer bag. They also found evidence defendant had been attempting to counterfeit $5 and $20 bills, including some pieces of paper with these denominations printed on them. Other pieces of paper had currency printed on them and had been cut into the shape of regular bills. One piece of paper had the front and back of a $20 bill copied on to it. Some versions of the bills were more complete than others as some did not have backs.

Defendant also had a piece of paper with four authentic $5 bills taped to it, a template, and this template had been copied onto linen paper using an inkjet printer. Linen paper is sometimes used in counterfeiting because its texture feels more like actual currency than basic printer paper. Additional pieces of linen paper, as well as a laptop computer and an inkjet printer, which is commonly used in counterfeiting currency, were found in defendant's possession. Police also recovered four bottles of paint, paint brushes, a paint pen, and acetone nail polish remover. A United States Secret Service Special Agent with training in identifying counterfeit currency opined that the inkjet printer, linen paper, and acetone were items used in the manufacturing of counterfeit currency.

DISCUSSION

Defendant raises two contentions; both concern the mens rea required for the offense of possession of counterfeiting equipment under section 480(a).

First, defendant contends the court erred with its instruction to the jury on the intent element. The court rejected a defense proposed instruction requiring the prosecution prove defendant possessed counterfeiting materials with an intent to defraud. Instead, the court instructed the jury that the elements of the offense were: "1. The defendant knowingly possessed any dye, any apparatus, or paper made use of in counterfeiting bank notes or bills; [¶] 2. The defendant possessed the items with criminal intent." Defendant contends that where, as here, the basis of the charge is the possession of a printer and paper, which are "ordinary office supplies," the jury should be instructed the offense requires possession with a " ‘fraudulent intent.’ " Second, he asserts that if the offense requires only a criminal intent and does not require fraudulent intent then it is unconstitutionally vague. The Attorney General contends the court properly declined to instruct the jury that an intent to defraud is required for the offense. He argues that possession of counterfeiting materials is a general intent crime and that defendant's vagueness challenge fails. The Attorney General has the better arguments.

Intent to defraud is not an element of a section 480 (a ) offense.

"In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence." (§ 20.) To determine the intent required for the crime of possessing counterfeiting equipment, we begin by examining "the statutory language describing the proscribed conduct, including any express or implied reference to a mental state." ( People v. Hering (1999) 20 Cal.4th 440, 445, 84 Cal.Rptr.2d 839, 976 P.2d 210.) Section 480(a) provides: "Every person who makes, or knowingly has in his or her possession any die, plate, or any apparatus, paper, metal, machine, or other thing whatever, made use of in counterfeiting coin current in this state, ... or in counterfeiting bank notes or bills, is punishable by imprisonment ...." Simply stated, section 480(a), prohibits "knowingly" possessing items "made use of in counterfeiting" currency.³ "The word ‘knowingly’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of [the Penal C]ode. It does not require any knowledge of the unlawfulness of such act or omission." (§ 7, subd. (5).)

" ‘When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.’ " ( People v. Rubalcava (2000) 23 Cal.4th 322, 328, 96 Cal.Rptr.2d 735, 1 P.3d 52.) Because section 480(a) simply describes a particular act—possession of items made use of in counterfeiting—without reference to an intent to do a further act or achieve a future consequence, it is deemed a general intent crime. Thus, to be convicted of violating section 480(a), a defendant must knowingly possess an item (die, paper, machine or apparatus) that he or she knew was or will be used in the counterfeiting of currency. A defendant who does not know that he or she is in possession of equipment that was or will be used in counterfeiting currency is not guilty of violating section 480(a). Thus, section 480(a) does not require a specific intent to do a further act or achieve a future consequence such as defrauding another.

As defendant acknowledges, the statute "does not explicitly" require the prosecution prove the possessor had fraudulent intent. The gravamen of the offense is the knowing possession of tools or instruments used in the process of counterfeiting currency. ( People v. Clark (1992) 10 Cal.App.4th 1259, 1264, 13 Cal.Rptr.2d 209.) Section 480 does not require proof that the defendant has actually produced completed counterfeit items. ( Ibid. ) Nor must the prosecution prove the defendant intends to utter or pass counterfeit bills with the intent to defraud as this is separately punished under section 475. ( Clark , at pp. 1263-1267, 13 Cal.Rptr.2d 209 ; see id. at p. 1267, 13 Cal.Rptr.2d 209 ["the Legislature has discerned separate harms and thus has separately treated the possession of completed counterfeit bills and the making or possessing of the means of counterfeiting"].)

Even though the plain language of section 480(a) does not include a fraudulent intent requirement, defendant nonetheless urges us to graft one onto the statute, at least when the charge is based on possession of "ordinary office equipment like ... paper and [a] printer." We decline the invitation. Examination of the history of section 480(a) and a comparison with related statutes demonstrates that it is not necessary to impute a...