POOCHIGIAN, J.
Appellant/defendant William Harmon was the manager of Tulare County's Animal Control Facility. He was removed from that position in December 2006 based on allegations from staff members that he committed acts of animal cruelty. An internal investigation resulted in further allegations about defendant's business dealings with Sergeant's Wholesale Biologicals, a company which purchased euthanized dogs and cats from the animal shelter and then resold the carcasses to educational institutions. The investigation revealed that Michael Sergeant, the company's owner, gave restaurant gift cards to defendant instead of timely paying Tulare County for the animal carcasses. Defendant used the gift cards to take his staff and their families out to lunch or dinner.
As a result of the investigation, defendant was charged with eight felony offenses: counts I and II, accepting a bribe from Sergeant (Pen. Code,
The trial court granted defendant's motion to sever his trial from that of codefendant Sergeant. The court also granted defendant's motion to sever trial on count X, animal cruelty, from his trial on the bribery and embezzlement charges. In addition, the court granted defendant's motion to suppress documentary evidence obtained from defendant's office as a result of an illegal search and seizure.
In September 2008, a jury trial was held as to the bribery and embezzlement counts against defendant. The prosecution introduced evidence about the gift cards through the testimony of Sergeant's former wife and his former office manager. They testified that defendant had an arrangement whereby Sergeant paid for dog carcasses that he obtained from the shelter by giving restaurant gift cards to defendant instead of paying the county. After the prosecution rested, the court granted defendant's motion for acquittal as to count IV and V, embezzlement. Defendant testified and claimed Sergeant initiated the offer of restaurant gift cards, and defendant accepted the offer because he believed Sergeant was making a gift to the animal shelter's staff. Defendant admitted he used the gift cards for staff meals and never reported his receipt of the gift cards to Tulare County.
The jury found defendant not guilty of count I, felony bribery, but guilty of the lesser included offense of misdemeanor accepting a gratuity (§ 70), based on defendant's acceptance of 10 gift cards of $100 each for Fugazzi's restaurant in October 2005. Defendant was also found guilty of count II, felony accepting a bribe from Sergeant, based on defendant's acceptance of one $1000 gift card for Fugazzi's restaurant in July 2006; count III, felony soliciting a bribe, based on defendant's request in December 2005, for Sergeant to provide gift cards from Red Robin and Taco Bell for $850; and count VI, embezzlement of money obtained from selling wooden pallets delivered to the animal shelter from a pet food company. Defendant was found not guilty of count IX, unlawful destruction of government documents.
Thereafter, another jury trial was held in March and April 2009, as to count X, animal cruelty. Defendant was found not guilty of animal cruelty, the charge which had triggered the entire investigation in this case and defendant's termination from employment. At the sentencing hearing for the bribery and embezzlement convictions, the court placed defendant on probation on condition of serving 290 days in jail.
On appeal, defendant only raises issues as to his conviction in count VI for felony embezzlement in violation of section 424, subdivision (a)(1). The embezzlement charge was completely unrelated to the restaurant gift card allegations. Instead, the charge was based on allegations that the animal shelter received wooden pallets with shipments of free pet food, defendant sold the pallets to a recycling company, he failed to account for the pallet sales proceeds or deposit the cash in the county's general fund, and he improperly used the pallet money to buy pizza for the animal shelter's staff and other incidental expenses.
As we will explain, there is a statutorily-defined complete defense to an embezzlement charge under section 424, subdivision (a)—that the offense does not apply to the "incidental and minimal use of public resources." (§ 424, subd. (c); Gov. Code, § 8314, subds. (b), (e).) The jury in this case found defendant guilty of count VI, but also returned a special finding that defendant's use of the pallet money was for incidental and minimal purposes.
Defendant contends the court's instructions on the incidental and minimal use defense were confusing, and prevented the jury from acquitting him of that count. Defendant further contends that since the jury returned a special finding that the pallet money was used for incidental and minimal purposes, the jury actually found him not guilty of count VI, and the court, the prosecutor and defense counsel failed to realize the impact of the jury's verdict. In the alternative, defendant contends there is insufficient evidence as a matter of law to support his embezzlement conviction, and the court incorrectly instructed the jury as to the mens rea element of the offense.
Given the limited nature of defendant's appellate contentions, we will focus our factual review to the circumstances surrounding count VI, embezzlement of the cash proceeds from the sale of the wooden pallets, and reverse defendant's conviction on that count.
Defendant joined Tulare County's environmental health department in 1987 and served in several supervisorial positions. In 2000, defendant became the first manager of the newly-formed Tulare County Animal Control Facility. He supervised the hiring of all the staff members, selected the location for the new animal shelter, and supervised the construction of the building. The new shelter opened in 2001. Defendant felt he had accomplished his assigned task, and he left the shelter in January 2002 for a supervisory position with another county agency.
Lawrence Dwoskin was the director of environmental health services for Tulare County and supervised the overall operations of the animal control facility. Dwoskin testified defendant was an excellent manager and handled the animal control facility's daily operations and fiscal activities. Dwoskin testified that in 2003, he asked defendant to return as the manager of the animal control facility because "we critically needed his management skills." Dwoskin arranged for a promotion and substantial salary increase to encourage defendant to accept his offer. Defendant accepted the offer and returned as manager of animal control services and the shelter in 2003.
Dwoskin testified defendant assisted in drafting the animal control facility's policy and procedure manual. The manual included a fiscal policy for receipt and disbursement of funds. Dwoskin testified that the animal control facility's fiscal policy provided that "when money comes in to either pay for bills or reimburse for expenses or pay for fines, a — a numbered receipt book is used to acknowledge receipt of that — those funds. Those funds are then deposited in a safe till the end of the day, and at that time, with the exception of ... animal control donations, those monies are taken to the bank at the end of each workday."
Mary Jungwirth was the office manager at the animal shelter. She accepted money and issued receipts for all income received into the shelter, pursuant to the shelter's established policies. These funds included adoption, license, and surrendering fees paid by the public. The public's donations of cash and merchandise to the animal shelter were separately handled by a county accountant, since many of the donations were designated for specific purposes.
Dwoskin testified that during defendant's tenure as manager, the animal shelter obtained pet food from Hill's Science Diet company. Dwoskin believed Hill's donated the pet food to Tulare County, and the county only had to pay a "per pound fee" for delivery.
Jungwirth testified that every Tuesday, a delivery truck arrived at the animal shelter and delivered packages of Science Diet dog food. The dog food packages were loaded on a wooden pallet. The pallet would be unloaded from the truck, and the shelter employees removed the dog food packages from the pallet. The delivery truck drivers did not keep the empty pallets and left them at the shelter. The staff stored the empty pallets in the back of the shelter.
Jungwirth testified that defendant learned about a recycling company in Goshen that purchased wooden pallets. Defendant directed shelter employees to take the pallets to that company and sell them. Jungwirth believed that either defendant or other employees drove to Goshen and sold the pallets for cash.
Jungwirth testified that defendant gave her the money received from the sale of the pallets. Everyone referred to the income as "pallet money." Jungwirth did not write receipts for the pallet money. Jungwirth kept the pallet money in an envelope and placed the envelope in the shelter office's safe. Defendant did not have the combination to the safe.
Jungwirth testified that she did not keep an account of the pallet money but believed it usually averaged about $30 to $60. Jungwirth did not specifically ask defendant why receipts were not issued for the pallet money. However, defendant once told Jungwirth that the pallets were free and the shelter was not charged for them. Jungwirth testified the shelter never received a bill from Science Diet for the pallets.
Jungwirth testified that from January 2005 to December 2006, while defendant was the shelter's manager, the pallet money was not forwarded to the county's fiscal office or general fund. Instead, the pallet money remained in the shelter office's safe, and the cash was used to buy pizza for the staff, purchase a Christmas tree for display at the shelter, and purchase mice to feed the snakes held at the shelter. Defendant decided when to spend the pallet money and directed Jungwirth to get the money out of the safe. No one gave her any receipts for the items purchased with the pallet money, except for the purchase of the Christmas tree. After defendant was removed as the shelter's manager, Jungwirth was asked to prepare an accounting of the pallet money for the county's fiscal office.
Dwoskin, defendant's supervisor, testified that he did not know that defendant sold the wooden pallets to a recycling company. He did not know the pallet money was kept at the shelter, how the pallet money was used, or that the pallet money was never accounted for or forwarded to the county's fiscal office.
Dwoskin did not know if the pallets belonged to the county. Dwoskin testified that if Science Diet donated the pallets to the county, the company could have asked for a letter acknowledging the tax benefits for the gifts. Dwoskin believed that the shelter was not required to issue a receipt when it received the pallets from the company's delivery truck. However, Dwoskin testified that any money generated from the pallet sales should have been accounted for, and deposited into the county's general fund pursuant to the shelter's established policies. Dwoskin conceded that if the pallets did not belong to the county, it would not have been improper for defendant to sell them and use the money for pizza.
Dwoskin recalled seeing a Christmas tree at the shelter in 2004 or 2005, but he thought the tree was donated. Dwoskin testified he once purchased pizza for shelter employees with his own money. At that time, a shelter employee mentioned they already had pizza lunches. Dwoskin did not ask about who purchased pizzas at the other lunches. Dwoskin testified that pizza and other food could be purchased with general fund money only if the food was for a staff lunch meeting. However, if an administrator wanted to purchase pizza for staff as a show of gratitude, that person would have to use his or her own money, and general fund money could not be used for that purpose.
At trial, defendant testified the animal shelter used about 400 pounds of dog food per week. The animal shelter received weekly deliveries of dog food from Hill's Science Diet pursuant to a "shelter feeding program" that defendant arranged with Hill's. Defendant disputed Dwoskin's testimony about the terms of the arrangement with Hill's. Defendant testified the county purchased dog food from Hill's for 25 cents per pound, so that 50 pounds of dog food only cost $12.50. The county did not have to pay any shipping or delivery charges for the dog food.
Defendant testified that a Hill's delivery truck arrived at the shelter every Tuesday, with about eight 50-pound bags of dog food on a wooden pallet. The shelter's staff tried to return the wooden pallets to the delivery truck drivers, but the drivers would not accept them. The staff stored the empty pallets by the garbage dumpster behind the shelter. The shelter also received pallets from the delivery of cleaning supplies, and the pallets began to "pile up" over time. The staff initially threw away the pallets in the dumpster, but they took too much space.
Defendant believed the pallets were similar to empty cardboard boxes from other deliveries, they had no intrinsic value, and they were just taking up space. One of the shelter employees, Daniel Bailey, approached defendant with the idea to sell the wooden pallets to a lumber company in Goshen. Bailey said the company would pay $2.00 per pallet, and suggested the money could be used to buy pizza for the staff. Defendant testified that he agreed with Bailey's plan to sell the pallets.
Defendant testified that he never personally took the pallets to the lumber company. He believed that shelter employees went to the lumber company on two separate occasions. On the first trip, Bailey took about 25 pallets and returned with $50. On the second trip, two other employees took about 15 pallets and returned with $30. Defendant believed the total income from all pallet sales was $80. The employees gave the cash directly to Mary Jungwirth in the shelter's office, and she put the money in the office safe.
Defendant testified that Dwoskin, his supervisor, was "well aware of the pallets, well aware of the pallet fund." Defendant testified that in 2004, Dwoskin used his county credit card to purchase a Christmas tree for the shelter's lobby. The tree was important to the shelter's activities, because the public would leave donations of cash and merchandise under it during the holiday season. In 2005, defendant asked Dwoskin to again purchase the tree with his county credit card, but Dwoskin refused. Dwoskin "directed me to use the money in the pallet fund that we had" to purchase the tree.
Defendant testified that Bailey, the employee who originally suggested selling the pallets, also suggested using the pallet money to have a pizza party for the staff. Defendant thought it was a good idea, and he authorized the use of the pallet money for that purpose on two occasions. Jungwirth called in the pizza order and gave the pallet money to a shelter employee to pay for the pizzas. The pallet money was also used to purchase mice, which were used as food for snakes that were turned into the shelter. Each mouse cost about $1.79.
Defendant testified he was aware of the county's fiscal policy for the shelter to issue receipts and account for all money received. He never asked Jungwirth, the office manager, to issue receipts or account for the pallet money "because we didn't consider it county property," since the pallets were treated as garbage.
Defendant contends the entirety of the jury's verdict in count VI amounted to an acquittal because the jury found that defendant's use of the pallet money was incidental and minimal, which is a statutorily-defined defense to a violation of section 424, subdivision (a)(1).
In order to address this issue, we will review the provisions of section 424 and the statutorily-defined incidental and minimal use defense. We will then turn to the procedural history for count VI, including the jury instructions, the parties' closing arguments, and the verdict form for count VI.
Defendant was charged in count VI, with violating section 424, subdivision (a)(1). Section 424 prohibits the embezzlement and misappropriation of public funds. As relevant to the instant case, subdivision (a)(1) states that an officer of the county, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who, without authority of law, appropriates the same, or any portion thereof, to his or her own use, or the use of another, commits a felony offense punishable by imprisonment, and is disqualified from holding any office.
Violations of section 424, subdivision (a)(1) are typically seen in "situations where a public employee or official, in the course and scope of his or her employment, receives money and converts the money to his or her own use rather than turning it over to the public entity. [Citations.] Another typical scenario is where the employee in his or her official capacity, having access to public moneys and having the authority to disburse the public moneys for certain purposes, embezzles the money to his or her own purpose. [Citation.]" (Webb v. Superior Court (1988) 202 Cal.App.3d 872, 886 (Webb).)
In order to prove a violation of section 424, however, it is not necessary for the public official to have actual custody of public monies, or to be directly charged, in his or her job description or common responsibilities, with the receipt, safekeeping, transfer, or disbursement of public funds. (Webb, supra, 202 Cal.App.3d at p. 887.) Section 424 thus applies to public officers whose primary duties are unrelated to public moneys. (People v. Groat (1993) 19 Cal.App.4th 1228, 1232-1233 (Groat).) In addition, no specific dollar amount loss must be demonstrated to prove a violation of the felony offense defined by section 424. (People v. Battin (1978) 77 Cal.App.3d 635, 637, superceded by statute on other grounds as explained in People v. Conner (1983) 34 Cal.3d 141, 147; Groat, supra, 19 Cal.App.4th at p. 1232.)
In addition to defining a criminal offense, section 424 also defines a complete defense to the crime:
Government Code section 8314 addresses the use of public resources for unauthorized purposes, and provides for the imposition of civil penalties against "any elected state or local officer, including any state or local appointee, employee, or consultant," who uses or permits others to use "public resources" for a campaign activity, or for "personal or other purposes" not authorized by law. (Gov. Code, § 8314, subd. (a).) Subdivision (b)(1) defines "[p]ersonal purpose" as activities for personal enjoyment or private gain, and states that a personal purpose "does not include the incidental and minimal use of public resources, such as equipment or office space, for personal purposes, including an occasional telephone call." (Italics added) In addition, Government Code section 8314, subdivision (e) states:
The incidental and minimal use provisions of section 424, subdivision (c) and Government Code section 8314 thus define a complete defense to criminal culpability under section 424. (See, e.g., DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236, 274-275.)
We now turn to the jury instructions which the court gave in this case as to count VI, embezzlement of the cash obtained from the sale of the wooden pallets. The court began by defining the elements of the offense:
The jury was also instructed that embezzlement was a general intent crime.
The court further instructed the jury as to count VI:
The court then gave the following special instruction as to the incidental and minimal use defense to count VI:
The court thus properly instructed the jury on the elements of a violation of section 424, subdivision (a)(1), and the statutorily-defined complete defense defined by section 424, subdivision (c) and Government Code section 8314, subdivision (e).
After the court instructed the jury, the parties gave their closing arguments. The prosecutor explained that defendant was charged in count VI with embezzlement, based on his failure to account for and turn in the pallet money to the county's general fund. The prosecutor argued the pallet money belonged to the county, and defendant improperly treated the cash as a "slush fund" and used it at his own discretion. The prosecutor further argued that the shelter's dumpster trash belonged to the county, so that the cash proceeds from the pallet sales also belonged to the county even though the staff threw away some of the pallets. The prosecutor acknowledged the pallet money was only $80, "but it's still embezzlement under the law." The prosecutor did not address the incidental and minimal use defense.
In his closing argument on count VI, defense counsel argued the embezzlement count was the "most ludicrous" of the charges. Defense counsel cited to the court's instruction about the incidental and minimal use defense and argued:
In rebuttal, the prosecutor addressed the incidental and minimal use defense, and acknowledged the pallet fund involved $60 to $80. However, he asserted the incidental and minimal use defense only applied in limited situations where a county employee used a county telephone to call home, or took home a county pen.
After the completion of closing arguments, the court gave final instructions to the jury about the verdict form for count VI, embezzlement.
As we will explain post, the court instructed the jury that it had to find defendant guilty of count VI before it could reach the incidental and minimal use issue, and that it could return both a guilty verdict and a true finding on incidental and minimal use.
The verdict form for count VI was on a single page, and the jury returned the following verdict on that count:
Neither the court, the prosecutor, nor defense counsel made any remarks about the jury finding defendant guilty of count VI but also finding the incidental and minimal use defense to be true, or whether the true finding was inconsistent with the guilty verdict.
As explained ante, after defendant's jury trial on the bribery and embezzlement charges, the court conducted a second jury trial on the animal cruelty count. The jury found defendant not guilty of that charge.
Thereafter, the court conducted the sentencing hearing on the bribery and embezzlement verdicts from the first jury trial. The court placed defendant on probation for three years on condition of serving 290 days in jail, based on consecutive terms of 95 days for count II, 90 days for count I, 90 days for count III, and 15 days for count VI. When the court imposed the 15-day sentence for count VI, it stated:
Neither the prosecutor nor defense counsel made any comments about the court's treatment of the jury's incidental and minimal use finding as a mitigating factor for purposes of sentencing.
Defendant argues the court failed to properly instruct the jury on the consideration of the incidental and minimal use defense to count VI. Defendant argues the court's final instructions were confusing because it told the jury that it had to return a guilty verdict on the substantive violation of section 424, subdivision (a)(1) before it could address the incidental and minimal use issue. Defendant contends that he was actually acquitted of count VI based on the jury's true finding on the incidental and minimal use defense.
We begin by noting that defendant never objected to the jury instructions on count VI and defendant has not raised an ineffective assistance claim. Defendant argues he may raise these instructional issues on appeal because they affect his substantial rights. He is correct. An instructional error that affects a defendant's substantial constitutional rights may be reviewed on appeal despite the absence of an objection. (§ 1259; People v. Prieto (2003) 30 Cal.4th 226, 247; People v. Williams (2010) 49 Cal.4th 405, 457; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) A claimed error will have affected the defendant's substantial rights if it resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of the error. (Ibid.; People v. Baca (1996) 48 Cal.App.4th 1703, 1706.)
Defendant contends the court's instructions on the incidental and minimal use defense were confusing and prevented the jury from finding him not guilty of count VI. As we will explain, these contentions implicate his substantial rights because prejudicial error was committed.
Turning to the merits of the issue, it is well-settled that in criminal cases, "[e]ven absent a request, the trial court must instruct on the general principles of law applicable to the case. [Citation.] The general principles of law governing a case are those that are commonly connected with the facts adduced at trial and that are necessary for the jury's understanding of the case. [Citation.] The trial court must give instructions on every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1200.) The court also has the correlative duty "`"to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.]' [Citation.]" (People v. Barker (2001) 91 Cal.App.4th 1166, 1172; People v. Watie (2002) 100 Cal.App.4th 866, 883.)
There is no dispute that defendant relied upon the statutorily-defined incidental and minimal use theory as a complete defense to count VI. The court clearly found the defense was supported by substantial evidence since it gave a special instruction on the elements of the defense. The record is silent as to whether the court gave the special instruction sua sponte, defendant requested the instruction, or who drafted the instruction. In any event, the court's initial instructions to the jury correctly stated that the incidental and minimal use of public resources "shall not be subject to prosecution," and that it was a defense to count VI if the pallet money was used "for incidental and minimal purposes."
In his closing argument, defense counsel relied upon the court's instructions on the incidental and minimal use defense, and argued that the incidental and minimal use of the pallet money was a complete defense and the jury could not find defendant guilty of count VI. In rebuttal, the prosecutor did not refute the existence of the incidental and minimal use defense, but instead argued the pallet money was substantial and defendant was guilty of count VI. The jury was thus squarely presented with the question of whether defendant was guilty of count VI, or whether the incidental and minimal use defense applied so that defendant was not guilty of the charge.
The court's final instructions, however, completely undermined its earlier instructions and the parties' arguments. The court told the jury that it had to find defendant guilty of count VI, and only then could it reach the issue of whether the pallet money was used for incidental and minimal purposes:
The record is silent as to why the court gave this final instruction to the jury. The record is also silent about why the court diminished the legal significance of the defense by telling the jury that it still had to find defendant guilty of the substantive offense even if it found the pallet money was used for incidental and minimal purposes. The court's comments at the sentencing hearing offer a possible clue to the reason the court gave the final instruction. The court seemed to believe that the incidental and minimal use theory was some type of mitigating factor found true by the jury, rather than a complete defense authorized by statute. In any event, the court's final instructions were confusing and inconsistent with its initial instructions, and the state of the law, that incidental and minimal use was a complete defense to count VI.
The People acknowledge the jury's guilty verdict on count VI is inconsistent with what it characterizes as the jury's "special finding" on the incidental and minimal use of the pallet money. However, the People cite to the well-recognized principle that inconsistent verdicts may be affirmed on appeal, and assert that the jury's guilty verdict can be upheld despite the true finding on the complete defense.
The People are correct that inherently inconsistent verdicts are allowed to stand under certain circumstances. (People v. Lewis (2001) 25 Cal.4th 610, 656.) "[I]f an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both. [Citations.] When a jury renders inconsistent verdicts, `it is unclear whose ox has been gored.' [Citation.] The jury may have been convinced of guilt but arrived at an inconsistent acquittal or not true finding `through mistake, compromise, or lenity ....' [Citation.] Because the defendant is given the benefit of the acquittal, `it is neither irrational nor illogical to require [him or] her to accept the burden of conviction on the counts on which the jury convicted.' [Citation.]" (People v. Santamaria (1994) 8 Cal.4th 903, 911; see also People v. Abilez (2007) 41 Cal.4th 472, 512-513; People v. Palmer (2001) 24 Cal.4th 856, 860-861.)
In this case, however, we are faced with something far different than a jury's inconsistent guilty verdict on a substantive offense, compared to true findings on an enhancement or special allegation. Defendant's reliance upon the incidental and minimal use defense was supported by substantial evidence, and the jury was properly instructed during the initial instructions that it was a complete defense to the charged offense. As we have demonstrated, however, the entirety of the court's instructions was confusing as to when and how the jury could address the issue. The court specifically told the jury that it had to find defendant guilty of the substantive offense even if it found the pallet money was used for incidental and minimal purposes.
In the alternative, the People argue count VI must be affirmed because the court instructed the jury that the incidental and minimal use of the pallet money was a complete defense. The People assert that the jury's guilty verdict on count VI shows that it rejected defense counsel's argument that defendant was not guilty of the offense. This argument might have been meritorious if the jury had not receive the court's final instructions, or the jury had not returned a true finding that the pallet money was used for incidental and minimal purposes. The combined effect of the court's erroneous instructions and the jury's true finding shows that the jury did not discount defendant's reliance on the incidental and minimal use defense.
"In reviewing the purportedly erroneous instructions, `we inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' [Citations.] In conducting this inquiry, we are mindful that `"a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge."' [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 957.) "Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citations.]" (People v. Mills (1991) 1 Cal.App.4th 898, 918; People v. Richardson (2008) 43 Cal.4th 959, 1028.)
In addition, "[t]he independent or de novo standard of review is applicable in assessing whether instructions correctly state the law [citations] and also whether instructions effectively direct a finding adverse to a defendant by removing an issue from the jury's consideration [citations]." (People v. Posey (2004) 32 Cal.4th 193, 218.)
We conclude the court's instructional errors in this case affected defendant's substantial rights and are cognizable on appeal. We acknowledge that instructions should be interpreted, if possible, so as to support the judgment rather than defeat it, if the instructions are reasonably susceptible to such interpretation. (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In this case, however, the entirety of the court's instructions led the jury to believe that it could find the incidental and minimal use defense true but still had to find defendant guilty of count VI. We must presume the jury followed the entirety of the instructions, particularly since the jury found defendant guilty and returned a true finding on the incidental and minimal use question, precisely as directed by the court's final instructions. The final instructions were erroneous and the error is prejudicial because the instructions prevented the jury from returning a not guilty verdict even if it found the pallet money was used for incidental and minimal purposes. Given the jury's true finding on that point, it is reasonably probable that a result more favorable to defendant would have occurred in the absence of the instructional error.
Defendant's conviction in count VI for a violation of Penal Code section 424, subdivision (a)(1) is reversed, and the 15-day jail term imposed for that count as a condition of probation is stricken. In all other respects, the judgment is affirmed.
WE CONCUR:
Kane, Acting P.J.
Detjen, J.
