People v. Smith

• Decision Date: 10 June 2002
• Docket Number: No. B142943.,B142943.
• Citation: 99 Cal.App.4th 138,120 Cal.Rptr.2d 831
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edaleene Sherrie SMITH et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

120 Cal.Rptr.2d 831

99 Cal.App.4th 138

The PEOPLE, Plaintiff and Respondent, v. Edaleene Sherrie SMITH et al., Defendants and Appellants.

No. B142943.

Court of Appeal, Second District, Division 7.

June 10, 2002.

Certified for Partial Publication^*

Rehearing Denied June 26, 2002.

Review Granted Sept. 11, 2002.

Phillip I. Bronson for Defendant and Appellant Smith.

Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant Thomas.

William Flenniken, Jr., under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant Gonzalez.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.

JOHNSON, J.

Defendants Smith, Thomas and Gonzalez were apprehended in a "sting" operation when they took 85 kilograms of cocaine planted by the police in a house the police controlled. Following a jury trial defendants were convicted of robbery, conspiracy to commit robbery, attempting to transport a controlled substance and grand theft. In addition to the punishment for these crimes, each defendant received a sentence enhancement for weapons use and a 25 year enhancement for attempting to transport more than 80 kilograms of cocaine. Unrelated murder charges against Thomas and Gonzalez were dismissed after the jury failed to reach a verdict on those counts. Defendants appeal their convictions and sentences. We affirm defendants' convictions but modify their quantity enhancements due to pre-arrest sentence manipulation by the police.

FACTS AND PROCEEDINGS BELOW

The police received information from a reliable informant defendant Smith was engaged in drug trafficking and home invasion robberies. Acting on this information an undercover police officer pretending to work for a major drug dealer met with Smith to find out whether she would be interested in stealing a shipment of cocaine from his "boss." Smith told the officer she was a professional and knew what she was doing. She said she always used the same crew, they had done this type of thing before and everything would be okay. Smith and the undercover officer agreed on how the cocaine would be split between them following the robbery. The officer told Smith he would be back in touch with her to discuss the details of the "rip off."

Based on Smith's willingness to commit the crime, the police proceeded to set up a sting operation. The officers involved in the sting obtained a court order releasing 85 kilograms of cocaine from a supply scheduled to be destroyed. They placed the cocaine in a van with an ignition kill switch. The officers then obtained the use of a vacant house and parked the van in the garage, leaving the key in the ignition. In the kitchen the officers set up a table with a money counter, pay-and-owe sheets, rubber bands for wrapping money, and other paraphernalia associated with drug trafficking. Finally, the officers placed a key to the house under the front door mat.

When the scene had been set and a SWAT team in place, the undercover officer called Smith and gave her directions to the house where the cocaine was located. Smith, along with defendants Thomas and Gonzalez, drove to the house. When they arrived Smith remained in her car while Thomas and Gonzalez approached the house. Gonzalez removed the key from under the mat and unlocked the front door. Pulling a gun from his waistband, he and Thomas entered the unoccupied house. They walked through the kitchen into the garage. Gonzalez opened the garage door while Thomas got into the van. As Thomas backed the van out of the garage and down the driveway, an officer activated the kill switch and the van came to a stop. Police immediately surrounded Smith, Thomas and Gonzalez and took them into custody. Various firearms were recovered from the defendants.

A jury convicted Smith and Thomas of robbery, conspiracy to commit robbery, attempting to transport a controlled substance and grand theft. Smith received a sentence of 36 years in prison including a 25 year quantity enhancement under Health and Safety Code section 11370.4, subdivision (a)(6) because the cocaine she was convicted of attempting to transport weighed more than 80 kilograms. Thomas was given a prison sentence of 47 years, 8 months including the 25 year quantity enhancement Gonzalez was convicted of the same charges except conspiracy to commit robbery. He received a prison sentence of 33 years including the 25 year quantity enhancement. Unrelated murder charges against Thomas and Gonzalez were dismissed when the jury could not reach a verdict on these counts. Defendants filed timely appeals.¹

DISCUSSION

I. SMITH AND THOMAS HAVE NOT SHOWN THEY WERE PREJUDICED BY THE DENIAL OF THEIR SEVERANCE MOTIONS.^**

II. THE TRIAL COURT DID NOT HAVE A DUTY TO INSTRUCT SUA SPONTE THAT CONSENT IS A DEFENSE TO LARCENY.

Defendants were convicted of theft of the cocaine and of the van containing the cocaine. They argue these convictions must be reversed because the police consented to these takings hence there was no theft as a matter of law.¹¹ In the alternative, defendants argue the trial court erred in not instructing the jury sua sponte that consent is a defense to a charge of theft by larceny. We find neither argument persuasive.

The trial court instructed the jury on the crime of theft by larceny using CALJIC No. 14.02 which states in relevant part: "Every person who steals, takes carries, leads or drives away the personal property of another with the specific intent to deprive the owner permanently of the property is guilty of the crime of theft by larceny." We believe this instruction adequately conveys the concept the taking must be without the owner's consent and the trial court had no duty to instruct sua sponte on the consent element. Any person with even a modicum of exposure to western culture understands the essence of the crime of theft is the taking of another's property without consent.¹² No reasonable juror could interpret the instruction to mean, for example, a person can be convicted of theft who takes a piece of candy from a jar marked "free—take one" even though that person "takes ... the personal property of another with the specific intent to deprive the owner permanently" of the candy.

In any event, failure to instruct the jury on consent did not prejudice defendants. There can be no doubt the conduct of the police in actively inducing and assisting defendants to take the cocaine and the van constituted consent to the takings. The police conceived the plan to steal the cocaine, supplied the cocaine and the van, left the key to the van in the ignition, gave the defendants directions to the house and told them where to find the key and instructed defendants in virtually every move they made. The officers could not have done more to evidence their consent to the takings unless they personally delivered the cocaine and the van into the hands of defendants.¹³

As we discuss in Part III below, it is not the fact the police consented to a taking of their property that is important in this case. What is important is the nature of the consent.

III. THE GOVERNMENT'S CONSENT TO THE TAKING OF ITS PROPERTY DOES NOT REQUIRE REVERSAL OF THE DEFENDANTS' THEFT CONVICTIONS BECAUSE THE GOVERNMENT CONSENTED ONLY TO A TEMPORARY TAKING.

In this case the issue regarding consent is not factual but legal: what is the effect of the government's consent to the taking of its property on defendants' liability for theft? Does the government's consent provide defendants with a complete defense to the theft charges as they claim, or does it still leave them subject to conviction for attempted theft, or does it provide them no defense at all because the consent was to a "temporary" as opposed to a "permanent" deprivation of government property?¹⁴

A. The Theory Consent Is A Complete Defense.

Historically, active "sting" operations, such as the one carried out in the present case, have not fared well as a basis for convicting the "stingees" of theft or attempted theft.¹⁵ Courts which have rejected criminal liability in these cases have done so on the ground the property owner's consent negates the essential trespassory element of larceny.

A case often cited for this rule is Topolewski v. State.¹⁶ In that case Dolan, a former employee of a meat packing plant, was approached by a defendant seeking Dolan's assistance in stealing meat from the plant. Dolan reported this meeting to Layer, a plant official, who told Dolan to continue his discussions with defendant and report back. Dolan and defendant agreed upon a scheme in which Dolan would arrange for four barrels of meat to be placed on the plant's loading platform and defendant would drive up and place the barrels in his wagon. Dolan reported this plan to Layer who directed the barrels of meat be placed on the platform the next morning and told the platform boss a man would be coming for them and to let them go. Defendant arrived as scheduled, loaded the barrels of meat into his wagon and drove off "with the intent to deprive the owner permanently thereof[.]"¹⁷ Defendant was convicted of larceny. The Wisconsin Supreme Court reversed and ordered a new trial. The court reasoned "there can be no larceny without a trespass [so] if one procures his property to be taken by another intending to commit larceny, or delivers his property to such other, the latter purposing to commit such crime, the element of trespass is wanting and the crime not fully consummated however plain may be the guilty purpose of the one possessing himself of such property."¹⁸

In State v. Mehozonek¹⁹ the management at a Ford auto parts plant learned from an employee, Fonseca, that security guards were allowing employees to steal parts and supplies from the plant. Ford management,...