Wednesday, May 13, 2020
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Court of Appeal:
Jury Instruction Comporting With 1867 Decision Of State High Court Is Valid, but Lacks Clarity
Justice Ikola Proposes Wording for Standard Instruction on Elements of Possession of Counterfeiting Equipment
By a MetNews Staff Writer
A jury instruction on the elements of possessing counterfeiting equipment that comports with requirements of a 153-year-old California Supreme Court decision suffices, the Court of Appeal held yesterday, but commented the barebones instruction that was given in the case being appealed from lacks clarity and, with no standard instruction existing, proposed one.
The 1867 state high court opinion in People v. White set forth that every knowing possession of implements that might be used in counterfeiting is not an offense—rather, the Legislature intended that there be “a possession with a criminal intent.”
It said:
“The instructions of the Court were substantially in accordance with the foregoing views. The jury was told expressly that they must acquit the defendant, unless they were satisfied from the evidence that he knowingly had the tools or implements in question in his possession with a criminal intent.”
Jury Instruction
In the present case, Orange Superior Court Judge Michael J. Cassidy told the jury that the elements of the felony with which Sung Jue Seo was charged—a violation of Penal Code §480(a)—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.”
Cassidy’s instruction was adapted from one approved by the Third District Court of Appeal in its 2001 decision in People v. Franz, which applied White.
Ikola’s Opinion
Inasmuch as Cassidy’s instruction comported with White, Justice Raymond J. Ikola of the Fourth District’s Div. Three said in yesterday’s opinion, “we cannot say the instruction was legally erroneous, but it surely lacked clarity.”
He continued:
“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).”
Proposed Instruction
The proposed instruction reads:
“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 <insert things that had been or will be counterfeited by use of the equipment, e.g., currency>;
“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 <insert things that had been or will be counterfeited by use of the equipment, e.g., currency>.”
Ikola commented that if the lack of clarity in Cassidy’s instruction “constituted error, it was harmless beyond a reasonable doubt.”
Seo argued that the jury should have been instructed that to constitute a crime, possession must be with a “fraudulent intent.” Ikola said that even going back to the 1850 statute that preceded §480(a)—§78 of the Act Concerning Crimes and Punishments—“we still do not find a fraudulent intent requirement.”
He declined the “invitation” by Seo to erect such a requirement, at least where, as in his case, the counterfeiting implements were ordinary office equipment such as paper and a printer.
Ikola also wrote that Seo’s “vagueness challenge fails as section 480(a), is not unconstitutionally vague.”
Seo did not appeal his misdemeanor conviction of carrying a loaded firearm in a vehicle.
Cassidy granted him three years of formal probation, a condition of which was serving (Pen. Code, § 25850, subds. (a), (c)(7); count 4), a misdemeanor, and possession of counterfeiting equipment (§ 480, subd. (a); count 5), a felony. Imposition of sentence was suspended and defendant was placed on formal probation for three years with the term, among others, that he serve seven months and 27 days in jail.
The case is People v. Seo, G057597.
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