People v. Acosta , 226 Cal. App. 4th 108 ( 2014 )

Filed 5/12/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G049326
v. (Super. Ct. No. SWF10001774)
ROBERT CONRAD ACOSTA et al., OPINION
Defendants and Appellants.
Appeal from a judgment of the Superior Court of Riverside County, Mark
Mandio, Judge. Affirmed as modified and remanded with directions.
Rex Williams, under appointment by the Court of Appeal, for Defendant
and Appellant Robert Conrad Acosta.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant
and Appellant Monique Evette Acosta.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
Under Penal Code section 502.5, a borrower under a loan secured by real
estate may not intentionally harm the lender by removing statutorily specified
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improvements from the encumbered premises. Section 502.5 was amended to read in its
present form some 91 years ago. Despite the age of the statute, we have not found a
single appellate opinion, published or unpublished, in which an appellate court has
reviewed a conviction under the statute. It appears we have been tasked with being the
first to do so.
A jury convicted defendants Robert Conrad Acosta and Monique Evette
Acosta of violating section 502.5 by taking improvements or fixtures from their
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foreclosed home. The jury found true the allegation that defendants took or damaged
property causing a loss of over $65,000, for purposes of a “great taking” enhancement.
(§ 12022.6, subdivision (a)). The court placed them on probation for five years on
condition they serve jail time of 270 days.
On appeal defendants argue section 502.5 is unconstitutionally vague and
that the court improperly instructed the jury on the definition of the word “fixture.”
Monique further contends the court erred by instructing the jury that the great taking
enhancement encompasses vicarious liability. Finally, defendants contend that payment
of probation supervision costs should not have been made a condition of probation.
We agree the court should have ordered defendants to pay probation costs
as a separate order, rather than as a condition of probation. In all other respects, we
affirm the judgment.
1
All statutory references are to the Penal Code unless otherwise stated.
2
For convenience and to avoid confusion, we refer to defendants singularly
by their first names. We intend no disrespect.
2
FACTS
In May 2007, defendants borrowed about $700,000 from San Diego
Metropolitan Credit Union (the lender) by refinancing the mortgage loan on their home.
The lender had the home appraised before approving the loan. The appraiser found the
house was “a customized home in a tract area.” It was “exceptional” and had many
upgrades. The exterior upgrades included stone work, a wood gate, a courtyard, a patio, a
fireplace, a swimming pool with a waterfall and a spa, and an exterior shower. Inside the
house, the kitchen cabinets, countertops, backsplash, and appliances were upgraded, as
was the staircase banister, the carpet, and a custom wet bar with wine racks. The
appraiser factored in the upgrades in estimating that the home’s value was $705,000.
The lender relied on this appraisal in determining the amount of the loan it
made to defendants. The deed of trust listed “fixtures to the home” as part of the security
collateral. The deed of trust specified that, “fixtures now or hereafter a part of the
property” were part of the secured property. Tina Medrud, who managed foreclosed
properties for the lender, explained at trial that a fixture is anything affixed to the
property, whether it is screwed in, bolted in, drilled in, hardwired, stapled or glued to the
walls.
Defendants rented the home to Patrick Dunham and his family from
December 1, 2008 to January 15, 2010. When the Dunhams moved out, they left the
home in “pristine” condition. They moved out because Robert asked them to vacate the
house so that Robert could try to refinance the home as owner occupied.
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3
On June 8, 2010, Medrud told Robert, who was living in the house, that he
could stay there until June 30, even though a June 14 foreclosure sale was scheduled for
the house. Medrud agreed not to start eviction proceedings, so long as the property was
given to her in good condition on July 1.
Monique e-mailed Medrud on June 9. Monique said they would not leave
the house in good condition unless the lender gave them $10,000 in return for the keys.
Monique wrote, “$10,000 plus will maybe get me and my aunt to move out of this home
in good condition,” with multiple exclamation points.
From early June through June 14, when defendants moved out, they
seriously damaged the property. Monique cut down a tree in the back yard and pushed it
into the swimming pool. Both defendants pulled up plants in the back yard. Inside the
house, there was spray paint on the walls. Monique put black dye on the master
bathroom grout. In order to bring a heavy bar down from the upstairs game room, Robert
and a neighbor used a sledgehammer to pull out wrought iron posts from the staircase.
While defendants were at home, someone used the sledgehammer to tear apart or
demolish a whirlpool hot tub in the back yard. Stonework between the swimming pool
and the whirlpool hot tub was damaged and removed. In the kitchen, the cabinet doors,
drawers, countertops, and appliances were removed. Wooden beams attached to the
ceiling of the entryway were removed. Half of the rock facing on the house was gone
and the rocks were lying on the ground. The garage door and the entry gate were gone.
Defendants moved things out of the house into storage pods. A big semi-truck also
moved things away from the house.
3
All dates refer to the year 2010 unless otherwise stated.
4
After 5:00 p.m. on June 14, Monique e-mailed Medrud that defendants had
vacated the property. A neighbor checked the door from the garage into the house, the
main front door, and two French doors going into the house, and determined that all those
doors were locked.
The house did not sell to a third party at the foreclosure sale, and the lender
thus acquired the property.
The next day Medrud went to the property and saw “total destruction.” The
exterior façade was torn off, with bricks lying on the ground. The gate and light fixtures
were missing. Inside, every appliance was removed; every plumbing pipe was broken;
every outlet was smashed in. All the countertops were missing. The pool was destroyed;
the pool equipment was destroyed; the pool pumps were cut; the air conditioning units
were missing. Black paint was on all the tiles. Plants and stuff were thrown in the pool
and the pool steps were chipped.
Medrud contacted law enforcement. A responding officer filmed the
interior of the home and found spray cans inside trash bags in the kitchen and the garage.
While officers were visible in front of the house, Medrud received a phone call from
Robert; she did not answer it.
That same day, Bryan Sheets, a licensed contractor, surveyed the property.
At trial, he explained how the missing items, such as carpet, shutters, appliances,
countertops, doors (including 12 interior doors), outlets, and air conditioning units, had
been affixed to the realty. He estimated it would cost $166,000 to restore the house to a
sellable condition.
Medrud telephoned Robert later that afternoon from the police station. A
recording of the call was played for the jury. Robert said he had called to find out why
police officers were at the property. Medrud asked what condition the house was in when
defendants left the property. Robert said it was in “fair condition” and he was fixing
extensive damage caused by his tenants. Robert feigned surprise when Medrud said the
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house had been spray painted and the banister had been torn up. He said he had left the
large bar upstairs rather than to risk taking it down. Robert finally said he “was under the
impression” that he could take the items for which he had receipts. Medrud told him if he
took a kitchen counter, he had to replace it with another counter. Robert said he
understood that. Robert denied cutting wires, smashing outlets, destroying the outdoor
fireplace and the front brick work, and spray painting walls. When Medrud mentioned
the threatening e-mail from Monique, Monique (who was also on the line) blamed their
tenants.
An officer located the storage units, which contained cabinet doors,
drawers, appliances, shutters, lighting fixtures, gates, decorative ceiling beams, ceiling
fixtures, a small granite countertop, and tiles. Some missing fixtures were not recovered
from the storage unit, such as the garage door, courtyard pavers, banister, kitchen
countertops, carpet, doors, and air conditioning units. The officer found two ads on the
Craigslist.org Internet Web site, dated May 27, 2010, advertising cypress trees and two
air conditioning units for sale, with Robert’s telephone number.
Defendants each have a California real estate license, which requires a
person to take classes and pass a test, including information about mortgages and
fixtures.
A detective interviewed Robert, with his attorney present, on June 29. A
recording of the interview was played for the jury. Robert stated that when he moved
back into the home in January, his tenants had left the yard and pool unkempt and the
interior of the house and the appliances filthy, and had left holes in the walls where they
had anchored fixtures. Robert also said that the tenants’ dogs had soiled and scratched
the carpet, staircase, and wood floor. When asked the condition of the house when he
(Robert) moved out, Robert said there were “scratches and . . . stuff on the walls,” but no
vandalism. Rock facing on the front of the house was intact. The kitchen was “fine” and
intact, with cabinets, countertops, drawers, and the sink all in place. Robert admitted he
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took items he had purchased, including the exterior light fixtures, garage door, gates,
decorative beams, carpet, shutters, speaker system, stove hood, three chandeliers, and
speakers.
Ultimately, the lender did not make any repairs but sold the property in late
November 2010 “as is” to a third party for $178,500. The lender received $144,000 from
its insurer.
Robert testified in his own defense. He described the extensive upgrades
that defendants purchased and installed in the house and the yards. Robert admitted that
when he moved out, he took the items for which he had paid, because he believed they
were his property.
DISCUSSION
Section 502.5 is Not Unconstitutionally Vague
Defendants contend that section 502.5 is unconstitutionally vague on its
face, arguing that “the terminology it employs is so confusing and lacking in definition
that a person of ordinary intelligence necessarily must guess as to its meaning.” We
disagree with that assessment.
A statute is not unconstitutionally vague if the “accused can reasonably be
held to understand by the terms of the statute that his conduct is prohibited.” (Bowland v.
Municipal Court (1976) 18 Cal.3d 479, 493.) “A statute must be definite enough to
provide a standard of conduct for its citizens and guidance for the police to avoid
arbitrary and discriminatory enforcement.” (People v. Townsend (1998) 62 Cal.App.4th
1390, 1400.) A “‘statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ
as to its application’” violates the due process requirement of adequate notice. (People ex
rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115.) But a “statute is not vague if . . . any
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reasonable and practical construction can be given to its language. Reasonable certainty
is all that is required.” (Townsend, at p. 1401.) There is a “‘strong presumption that
legislative enactments “must be upheld unless their unconstitutionality clearly, positively,
and unmistakably appears.”’” (Williams v. Garcetti (1993) 5 Cal.4th 561, 568.)
At issue here is section 502.5, which forbids a borrower from intentionally
harming a lender by removing or disposing of certain specified items from the
encumbered premises: “Every person who, after mortgaging or encumbering by deed of
trust any real property, and during the existence of such mortgage or deed of
trust, . . . and with intent to defraud or injure the mortgagee or the beneficiary or trustee,
under such deed of trust, . . . takes, removes or carries away from such mortgaged or
encumbered premises, or otherwise disposes of or permits the taking, removal or carrying
away or otherwise disposing of any house, barn, windmill, water tank, pump, engine or
other part of the freehold that is attached or affixed to such premises as an improvement
thereon, without the written consent of the mortgagee or beneficiary, under deed of
trust, . . . is guilty of larceny and shall be punished accordingly.” (Ibid.)
Defendants challenge as unconstitutionally vague the phrase, “other part of
the freehold that is attached or affixed to such premises as an improvement thereon” (the
4
challenged phrase). Defendants complain section 502.5 does not define each of the
subparts used in the challenged phrase: “part of the freehold,” “attached or affixed,”
“premises,” or “improvement.”
4
Defendants demurred to the complaint on this basis. The court overruled
the demurrer, explaining that, although the statute is old and the term “freehold” is
archaic, the term is well-defined in the law, as is the concept of what items are affixed to
the property. The court stated that, although it may not be clear whether certain items are
fixtures, this does not render the statute vague or unconstitutional, but rather results in
factual questions for the trier of fact.
8
We reject defendants’ contention. A person of common intelligence can
understand the statute, including the challenged phrase. Average people can understand
the concept of an “improvement” to property, the condition of being “attached or
affixed,” and that “premises” refer to the encumbered property.
Defendants focus on the term “affixed.” They argue that the expressly
enumerated items in the statute — i.e., “any house, barn, windmill, water tank, pump, [or]
engine” (§ 502.5) — appear, in Robert’s words, “to constitute structures or equipment
attached to the land itself,” but the statute does not refer to Civil Code section 660’s
definition of “fixtures” or otherwise define fixtures, and thus, except for the specifically
enumerated items such as a “water tank” or “pump,” use of the word “affixed” in the
statute is vague. But one does not need a legal education, or a reference to Civil Code
section 660 for that matter, to understand the common meaning of the word “affixed.”
The word “affix” is commonly defined as “to attach physically” or “to attach in any
way.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 20.)
As to the term “freehold,” although it is archaic, when considered in
context and in a layman’s terms, a person of common intelligence can understand that
section 502.5 forbids a borrower from intentionally harming a lender by removing or
disposing of items attached or affixed as improvements to the encumbered property, and
which are part of the borrower’s legal holding or to which the borrower holds title.
Defendants also contend that the phrase “attached or affixed” is vague with
respect to the time of attachment. This contention lacks merit. The statute makes clear
that the issue is whether the item is attached or affixed to the encumbered property at the
time the defendant takes, removes, or disposes of it.
Section 502.5 is not unconstitutionally vague on its face.
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Jury Instructions
Defendants contend the court improperly instructed the jury on the term
“fixture” and on the great taking enhancement.
A trial court bears a sua sponte duty to instruct the jury on “‘“the general
principles of law relevant to the issues raised by the evidence”’” (People v. Breverman
(1998) 19 Cal.4th 142, 154), including the elements of an offense (People v. Flood
(1998) 18 Cal.4th 470, 479-480). “The prosecution has the burden of proving beyond a
reasonable doubt each element of the charged offense.” (People v. Cole (2004) 33
Cal.4th 1158, 1208.) “An instructional error relieving the prosecution of its burden
violates the defendant’s rights under both the United States and California Constitutions.”
(Ibid.) “‘Nonetheless, not every ambiguity, inconsistency, or deficiency in a jury
instruction rises to the level of a due process violation. The question is “‘whether the
ailing instruction . . . so infected the entire trial that the resulting conviction violates due
process.”’”’ (People v. Mills (2012) 55 Cal.4th 663, 677.)
“An appellate court reviews the wording of a jury instruction de novo and
assesses whether the instruction accurately states the law.” (People v. O’Dell (2007) 153
Cal.App.4th 1569, 1574.) “‘“[T]he 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. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
Taking into account the instructions as a whole and the trial record, we “determine
whether there is a reasonable likelihood the jury applied the instruction in an
impermissible manner.” (People v. Houston (2012) 54 Cal.4th 1186, 1229.) We presume
that jurors are intelligent and capable of correctly understanding, correlating, applying,
and following the court’s instructions. (People v. Lewis (2001) 26 Cal.4th 334, 390;
People v. Sanchez (2001) 26 Cal.4th 834, 852.)
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1. The Court Properly Defined “Fixture” for the Jury
To assist the jury in deciding whether defendants violated section 502.5, the
court instructed them with a definition of the term “fixture.” Defendants contend the
instruction was erroneous.
At a pretrial hearing, the court considered defendants’ motion to exclude
photographs of property damage unrelated to the removal of fixtures. In that connection,
the court asked the parties to offer their definitions of a “fixture.” Monique’s counsel
cited People v. Lee (1994) 24 Cal.App.4th 1773 (Lee). The People cited Civil Code
section 660.
Subsequently, during recross-examination and redirect examination of
Medrud, she was asked, at length, whether various items were fixtures. The court
properly interceded, telling the jurors it would read them the Civil Code definition of a
fixture and that, ultimately, the jurors would have to decide which items were fixtures.
The court then read the jury the Civil Code section 660 definition of a fixture, as follows:
“A thing is deemed affixed to land when it is attached to it by roots, as in the case of
trees, vines or shrubs; when it is embedded in it, as in the case of walls; or permanently
resting upon it, as in the case of buildings; or permanently attached to what is thus
permanent, as by means of cement, plaster, nails, bolts, or screws.”
Defendants later asked the court to instruct the jury with a definition of
“fixture” from M.P. Moller, Inc. v. Wilson (1936) 8 Cal.2d 31, 38 (Moller). In Moller,
our Supreme Court affirmed the trial court’s finding that a pipe organ installed in a house
was not a fixture. (Id. at pp. 33-34, 39.) Moller stated that “whether an article is or was
physically affixed to the building is only one of the criteria in determining whether there
was an intention to make it a permanent accession to the real property.” (Id. at pp. 37-
38.) Another “indication of an intent to make the article a permanent fixture and part of
the realty” is whether it appears “from the nature of the chattel that if used for the
purpose for which it was designed it would naturally and necessarily be annexed to and
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become a permanent and integral part of some realty; in other words, that it would
become essential to the ordinary and convenient use of the property to which it was
annexed.” (Id. at p. 38.)
The court denied defendants’ motion. The court explained that Lee, the
case which Monique’s counsel had previously cited for its quotation of the Moller
definition of “fixture,” was an arson case in which the issue was whether wall-to-wall
carpeting was a fixture. (Lee, supra, 24 Cal.App.4th at p. 1777 [Moller “devised a test to
determine whether a certain item of personal property is a fixture”].) The court further
explained (1) that Lee did not quote the Moller test as required language for a jury
instruction and did not suggest that the Civil Code section 660 definition is not a good
jury instruction for fixtures other than carpeting, and (2) that the test’s language,
“‘integral part of some realty’” and “‘essential to the ordinary and convenient use of the
property’” (Lee, at p. 1777), is in fact misleading “without explanation or context, such as
given in Civil Code section 660,” and without informing the jury that the language
concerned “wall-to-wall carpeting, which is tacked down.”
Consequently, the court instructed the jury with the Civil Code section 660
definition of “fixture”: “Property affixed to land is a fixture. It is for you to determine
which property, if any, is a fixture. A thing is deemed affixed to land when it is attached
to it by roots, as in the case of trees, vines or shrubs; when it is [e]mbedded in it, as in the
case of walls; or permanently resting upon it as in the case of buildings; or permanently
attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or
screws.”
On appeal, defendants rely on Crocker National Bank v. City and County of
San Francisco (1989) 49 Cal.3d 881, 884 (Crocker), which discussed the classification of
fixtures for purposes of taxation. In Crocker, our Supreme Court held the test for a
fixture is “whether a reasonable person would consider the item in question to be a
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permanent part of the host real property, taking into account annexation, adaptation, and
other objective manifestations of permanence.” (Ibid.)
Crocker also discussed the test for fixtures for purposes of conveyances
such as mortgages, where the question is, “did the conveyance transfer interest in the
items or not?” (Crocker, supra, 49 Cal.3d at p. 886.) The crucial factor is whether the
mortgagor had an “‘apparent’” intent to make the item “‘a permanent accession to the
freehold.’” (Ibid.) This factor focuses on “the objective ‘intent’ that would be inferred
by a reasonable grantee or mortgagee,” not the subjective intent of the annexor. (Ibid.)
“‘[W]hat does the grantee or mortgagee, as a reasonable man, think he is receiving under
the conveyance’”? (Id. at pp. 886-887.)
Defendants contend the court erred by instructing the jury with the Civil
Code section 660 definition of “fixture,” because that definition does not require the
finder of fact to consider the objective manifestations of the intent of the party making
the annexation. Defendants also contend the court’s instruction created an impermissible
conclusive presumption with the phrase, “A thing is deemed affixed to land . . . . ,” again
concluding that the instruction removed the issue of the annexing party’s intent from the
jury’s consideration.
Contrary to defendants’ contentions, Civil Code section 660 does exactly
what defendants claim it does not do. The statute defines fixture in terms of the
overarching objective manifestation of the annexing party’s intent — namely,
“permanence.” (Civ. Code, § 660 [referring to fixtures “permanently” resting on the land
or “permanently attached to what is thus permanent”].) As stated in Crocker, supra, 49
Cal.3d at page 884, classification of a fixture “should turn on whether a reasonable
person would consider the item in question to be a permanent part of the host real
property, taking into account annexation, adaptation, and other objective manifestations
of permanence.” (Italics added.) Thus, besides annexation and adaptation, there may be
other objective manifestations of permanence presented by the evidence. But the
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essential question for the jury is whether consideration of all of the evidence of
permanence persuades beyond a reasonable doubt that the attachment was intended to be
permanent.
Viewing the jury instructions in their entirety, the Civil Code section 660
instruction fits hand-in-glove with the element of a section 502.5 violation which requires
that defendants have disposed of property “attached or affixed to [the] premises as an
improvement” to the real property. (§ 502.5, italics added.) In common parlance, an
improvement to real property is something that enhances the property’s value or
desirability. Additions to property lacking permanence normally will not affect value or
desirability. Accordingly, instructing the jury with the definition of a “fixture” from
Civil Code section 660 serves as a helpful adjunct to the instruction on section 502.5, and
incorporates permanence as the objective manifestation of the annexing party’s intent.
The court comprehensively instructed the jurors on the section 502.5
offense and their responsibility to ultimately determine which items were fixtures. The
court also gave them a unanimity instruction requiring them to unanimously agree on
which act(s) of theft of fixtures defendants committed.
Furthermore, although a defendant’s subjective intent is irrelevant to the
determination of which items are fixtures, it is an element of a section 502.5 offense. The
court instructed the jury on the requirement that each defendant have acted with the
specific intent to defraud or injure the trustee or beneficiary under the deed of trust. The
court also instructed the jury on several defenses to, or factors weighing against, a finding
that defendants intended to defraud or injure the trustee or the beneficiary — i.e., a
defendant’s returning or offering to return property, obtaining property under a claim of
right, or ignorance or mistaken belief in a fact.
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In sum, the court correctly instructed the jury on the section 502.5 offense
and the related definition of fixtures from Civil Code section 660.
2. The Court Properly Instructed the Jury on the Great Taking
Enhancement
Monique contends that the great taking enhancement under section
12022.6, subdivision (a)(1), applies only when a defendant personally takes, damages, or
5
destroys property valued at over $65,000. She argues the court improperly lowered the
prosecution’s burden to prove all elements of the section 12022.6, subdivision (a)
enhancement, when the court instructed the jury that the enhancement applies if “the
defendant either personally or permitted another to unlawfully take, remove or otherwise
6
dispose of” property causing a loss greater than $65,000. (Italics added.) By adding this
5
Section 12022.6, subdivision (a)(1) provides: “When any person takes,
damages, or destroys any property in the commission or attempted commission of a
felony, with the intent to cause that taking, damage, or destruction, the court shall impose
an additional term as follows: [¶] (1) If the loss exceeds sixty-five thousand dollars
($65,000), the court . . . shall impose an additional term of one year.”
6
The court instructed the jury with a modified version of CALCRIM No.
3220, as follows: “If you find a defendant guilty of the crime charged, you must then
decide whether the People have proved the additional allegation that the value of the
property (taken, damaged or destroyed) was more than $65,000. [¶] To prove this
allegation, the People must prove that: 1. In the commission of the crime, the defendant
(took, damaged or destroyed) property; 2. When the defendant acted, he or she intended
to (take, damage or destroy) the property; [¶] AND [¶] 3. The loss caused by the
defendant’s (taking, damaging or destroying) the property was greater than $65,000. [¶]
The value of property is the fair market value of the property. [¶] You must only
consider the value of the fixtures which the defendant either personally or permitted
another to unlawfully take, remove or otherwise dispose of as well as the value of any
property damaged or destroyed in the commission of the taking, removal or disposal of
those fixtures in determining the value of the property taken, damaged or destroyed. [¶]
The People have the burden of proving this allegation beyond a reasonable doubt. If the
People have not met this burden, you must find that the allegation has not been proved.”
(Italics added.)
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sentence, the court modified CALCRIM No. 3220, the standard jury instruction on the
great taking enhancement, to encompass vicarious liability. The court did not err in
doing so.
In People v. Fulton (1984) 155 Cal.App.3d 91, 102 (Fulton), a different
panel of this court held that the great taking enhancement imposes vicarious liability on
an accomplice who does not personally take or destroy property of the requisite value.
The commentary to CALCRIM No. 3220 criticizes Fulton. The
Commentary states: “Penal Code section 12022.6 applies to ‘any person [who] takes,
damages, or destroys any property . . . .’ The statute does not explicitly include vicarious
liability but also does not use the term ‘personally’ to limit the scope of liability. In
[Fulton, supra,] 155 Cal.App.3d 91, 102 . . . , the Fourth Appellate District of the Court
of Appeal interpreted this language to mean that the statute did not require that the
defendant personally take, damage, or destroy the property, but provided for vicarious
liability. In reaching this conclusion, the court relied on the reasoning of People v. Le
(1984) 154 Cal.App.3d 1 . . . , which held that an enhancement for being armed with a
firearm under . . . section 12022.3[, subdivision (b)] allowed for vicarious liability despite
the fact that the statute does not explicitly include vicarious liability. The Fulton
court . . . disagreed with the holding of People v. Reed (1982) 135 Cal.App.3d 149 . . . ,
which held that . . . section 12022.3[, subdivision (b)] did not include vicarious liability.
However, the Fulton decision failed to consider the Supreme Court opinion in People v.
Walker (1976) 18 Cal.3d 232, 241–242 . . . , which held that an enhancement does not
provide for vicarious liability unless the underlying statute contains an explicit statement
that vicarious liability is included within the statute’s scope. Moreover, the Supreme
Court has endorsed the Reed opinion and criticized the Le opinion, noting that Le also
failed to consider the holding of Walker. (People v. Piper (1986) 42 Cal.3d 471, 477, fn.
5 . . . .) Similarly, the Fifth Appellate District of the Court of Appeal has observed that
‘the weight of authority has endorsed the analysis in Reed’ and rejected the holding of Le.
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(People v. Rener (1994) 24 Cal.App.4th 258, 267 . . . [holding that . . . § 12022.3[,
subds.] (a) & (b) does not include vicarious liability].) Thus, although no case has
explicitly overruled Fulton, the holding of that case appears to be contrary to the weight
of authority.”
True, in Walker, the California Supreme Court held that the gun use
enhancement of former section 12022.5 required a finding that the defendant personally
used the firearm, thereby precluding application of the enhancement to a defendant who
7
had aided and abetted the underlying crime, but who had not personally used the gun.
(Walker, supra, 18 Cal.3d at pp. 235-236.) To support that holding, the high court
articulated the following rationale that can be interpreted to lay down a general rule
applicable to most sentencing enhancements, not simply the firearm enhancement at issue
in Walker: “Generally, if a statute is intended to impose derivative liability on some
person other than the actor, there must be some legislative direction that it is to be applied
to persons who do not themselves commit the proscribed act. Such a direction is found in
section 31 which fixes responsibility on an aider and abettor for a crime personally
committed by a confederate. But the statute which defines aiders and abettors as
principals in the commission of a criminal offense does not also purport to impose
additional derivative punishment grounded on an accomplice’s personal conduct, as those
statutes which provide for such increased punishment ‘“do not define a crime or offense
but relate to the penalty to be imposed under certain circumstances.”’ [Citations.] Hence
the rules which make an accused derivatively liable for a crime which he does not
7
At the time of the Walker decision, former section 12022.5 provided in
pertinent part: “‘Any person who uses a firearm in the commission or attempted
commission of a robbery, assault with a deadly weapon, murder, assault with intent to
commit murder, rape, burglary, or kidnapping, upon conviction of such crime, shall’”
receive an enhanced sentence. (People v. Walker, supra, 18 Cal.3d at p. 236, fn. 1
(Walker).) The enhancement statute has since been substantially amended and restated
and now requires personal use of a firearm, consistent with the holding in Walker.
(§ 12022.5, subd. (a).)
17
personally commit, do not at the same time impose a derivatively increased punishment
by reason of the manner in which a confederate commits the crime.” (Id. at pp. 241-242.)
Walker did not expressly consider the great taking enhancement.
A decade after Fulton and 18 years after Walker, the appellate court in
People v. Rener, supra, 24 Cal.App.4th 258 reviewed the case law on the issue of
vicarious liability for sentencing enhancements. (Id. at pp. 262-267.) The commentary
to CALCRIM No. 3220 relied on Rener to conclude that Fulton “appears to be contrary
to the weight of authority.” But “‘the weight of authority’” discussed in Rener consists of
cases holding that firearm and deadly weapon enhancements and infliction of great
bodily injury enhancements require personal, and not derivative, liability. The only case
cited in Rener involving the great taking enhancement is Fulton.
But, for purposes of vicarious liability, a deadly weapon (or great bodily
injury) enhancement is significantly different from the great taking enhancement. A
weapon is typically held by only one person at a time. Similarly, the infliction of great
bodily injury typically results from the application of force upon the victim by a single
person. By definition, aiders and abettors do not personally inflict injury upon the victim;
otherwise they would be classified as direct perpetrators.
In contrast, the great taking enhancement punishes for the perpetrator’s
taking or damaging of property in the commission of the underlying felony, not the
endangerment of (or injury to) a human being. The clear purpose of the enhancement is
to increase punishment when the defendant’s crime has resulted in a large monetary loss
to the victim. The enhancement does not address the manner by which the principals in
the underlying felony committed the crime. This is especially true here, where the
underlying criminal statute, i.e., section 502.5, expressly creates liability for a person who
“permits the taking, removal or carrying away or otherwise disposing of” encumbered
property with the requisite intent. (Italics added.)
18
In Fulton, Justice Crosby stated that failure to apply vicarious liability to
the great taking enhancement “would lead to absurd results. The criminal who
masterminds the offense would be subject to less severe punishment than the minions
who actually carry out the crime at his direction.” (Fulton, supra, 155 Cal.App.3d at p.
102.) The case at hand demonstrates this in concrete terms. Defendants — with the
requisite intent, knowledge, and level of participation — orchestrated a crime that
resulted in a loss to the lender of at least $166,000. Each of them should be held
accountable for a great taking. It does not matter whether each personally took or
damaged property valued at over $65,000. If the rule were otherwise, it would follow
that whenever two or more persons jointly committed a theft of more than $65,000, but it
could not be established which of the several defendants actually put the money in his or
her pocket, no defendant would be subjected to the great taking enhancement. That
would be an absurd result. “We must select the construction that comports most closely
with the apparent intent of the Legislature, with a view to promoting rather than defeating
the general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246.)
Thus, we agree with Fulton that the great taking enhancement
encompasses the liability of perpetrators who, either directly or as aiders and abettors,
knowingly and voluntarily embark on a joint effort to take or dispose of property causing
a loss of over $65,000. (Fulton, supra, 155 Cal.App.3d at p. 102 [“all persons who
participate in an offense which results in a great taking, with the requisite knowledge and
intent, are subject to the terms of the enhancement, regardless of the specific amount
personally taken”].) For purposes of the great taking enhancement, it is the amount of the
taking that is significant, not the manner of each person’s participation in the offense.
19
We do not read Walker as establishing a blanket rule that applies to all
sentencing enhancements. Instead, Walker’s general rule is limited to cases involving
8
deadly weapon or great bodily injury enhancements.
The court properly instructed the jury to consider only “the value of the
fixtures which the defendant either personally or permitted another to unlawfully take,
remove or otherwise dispose of . . . .”
Defendants Should Be Ordered to Pay Probation Supervision Costs in a Separate Order,
Rather Than as a Condition of Probation
Monique contends that the court’s order granting probation should be
modified to delete as a probation condition the payment of probation supervision costs,
and that defendants’ payment of such fees should be ordered separately. The Attorney
General agrees that the orders granting probation to defendants should be modified as
described above, and that defendants should be ordered to pay the costs of probation
supervision as part of the judgment.
When a court grants probation to a defendant and the defendant does not
waive the right to a determination of ability to pay, the court must order the defendant to
pay reasonable probation costs if the court determines the defendant has the ability to pay
them. (§ 1203.1b, subds. (a), (b).) The “reasonable costs of probation . . . are collateral
8
In a decision subsequent to Walker, our high court allowed the great taking
enhancement to be imposed on a defendant who had not personally taken money obtained
through welfare fraud, but had aided and abetted the crime. (People v. Crow (1993) 6
Cal.4th 952, 960-963.) Crow did not address whether it was proper to apply the great
taking enhancement to a defendant who had aided and abetted the underlying felony, but
instead considered only whether the evidence was sufficient to support the amount of the
loss. Accordingly, Crow is not direct authority for applying the great taking
enhancement to an aider and abettor. But the result in Crow does suggest that there are
limits and exceptions to Walker’s general statement that the rules allowing vicarious
liability for crimes do not “impose a derivatively increased punishment by reason of the
manner in which a confederate commits the crime.” (Walker, supra, 18 Cal.3d at p. 242.)
20
and their payment cannot be made a condition of probation.” (Brown v. Superior Court
(2002) 101 Cal.App.4th 313, 321.) Accordingly, we will “‘modify the order granting
probation to clarify that payment of those costs and fees is not a condition of probation
but rather an order of the court entered at judgment.’” (People v. Flores (2008) 169
Cal.App.4th 568, 578.)
DISPOSITION
We modify the trial court’s probation order to eliminate any requirement
that defendants pay the costs of probation as a condition of probation. We affirm,
however, the imposition of those costs, and direct the trial court to enter a separate order
directing defendants to pay such costs. In all other respects the judgment is affirmed.
IKOLA, J.
WE CONCUR:
O’LEARY, P. J.
FYBEL, J.
21