People v. Bohmwald CA2/2 ( 2021 )

Filed 6/10/21 P. v. Bohmwald CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B300413
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA068119-
v. 02)
LINDSAY MILENA
ANDRADE BOHMWALD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Bruce E. Brodie, Judge. Affirmed.
Lori A. Quick, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
******
A jury convicted Lindsay Milena Andrade Bohmwald (also
known as Lindsay Bohmwald Andrade) (defendant) of receiving
less than $950 of stolen property, a misdemeanor (Pen. Code,
§ 496, subd. (a)).1 On appeal, defendant argues that the trial
court erred in not giving a pinpoint jury instruction on third
party culpability in light of evidence that the passenger in the car
defendant was driving also knew about the stolen property. This
argument is without merit for numerous reasons, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Around 3:00 a.m. on the morning of May 1, 2007, defendant
was driving with her girlfriend as a passenger, and was pulled
over for having expired registration tags. The car was
defendant’s. A search of the car revealed (1) various tools to
commit auto burglaries (namely, wire cutters, a screwdriver and
a variety of sockets) in the driver’s door panel and the area
between the driver’s seat and the center console, (2) a stereo
faceplate, keys to a Chevy, and an iPod on the passenger’s side
floorboard, (3) a stolen disabled person parking placard, a pawn
shop receipt, vehicle registrations for two other cars, and mail
belonging to people other than defendant or her girlfriend in the
glove compartment, and (4) a wallet containing defendant’s
driver’s license and a work ID, her girlfriend’s ID and social
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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security card, and eight to ten credit cards belonging to Pamela
and Martin Griffiths, whose car containing those credit cards had
been stolen five days earlier.
At the scene, defendant told the police that all the items in
the car belonged to herself or her girlfriend.
When defendant was interviewed the next day by the
investigating detective, she stated that (1) she knew the credit
cards were stolen, (2) she had been given a backpack containing
those cards five days earlier, but defendant did not want to “rat”
out the person who had given her the backpack, and (3) she was
“to blame for all the stolen property” and that her girlfriend “had
nothing to do with . . . any of it.”
II. Procedural Background
A. The charges
On May 3, 2007, the People filed a criminal complaint
alleging that defendant and her girlfriend had committed five
counts of felony receipt of stolen property (§ 496, subd. (a)), and
that defendant had committed two additional counts of
misdemeanor receipt of stolen property (ibid.). The People
further alleged that defendant was on probation for a 2006
conviction for possessing access card account information with
the intent to use it fraudulently (§ 484e, subd. (d)).
B. Defendant’s plea and its subsequent reduction
and invalidation
On May 17, 2007, defendant pled no contest to one of the
counts of felony receipt of stolen property. Pursuant to a plea
agreement, defendant was sentenced to three years in state
prison and the People dismissed the remaining counts.
In April 2016, and pursuant to Proposition 47 (§ 1170.18),
the trial court reduced the 2007 felony conviction by plea to a
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misdemeanor because the property underlying the count of
conviction was worth less than $950.
In November 2018, the trial court vacated defendant’s now
misdemeanor plea entirely on the ground that she had not
entered the plea with knowledge of its potential immigration
consequences.
C. Reinitiation of prosecution, trial, and sentence
In January 2019, the trial court deemed the remaining four
felony counts of receiving stolen property in the original criminal
complaint to be misdemeanors, and the People dismissed all of
the counts except count 6, which involves the receipt of the
Griffiths’ stolen credit cards.
The matter proceeded to a jury trial.
At trial, the detective who had investigated the case shared
his view that the girlfriend knew about the stolen items in the
car.
Defendant took the stand. She denied telling the police at
the scene that all of items in the car were hers or her girlfriend’s,
and also denied telling the detective that she knew the credit
cards were stolen or that she was solely responsible for the stolen
property in the car. Defendant then explained away all of the
incriminating items in the car: She knew about the burglary
tools, but said she used them for do-it-yourself car maintenance;
she never saw the stereo faceplate or Chevy keys, but the iPod
found in the same location was hers; she did not see the items in
the glove compartment; and her driver’s license and work ID
were either not in the wallet with the Griffiths’ stolen credit cards
or were put there by her “very controlling” and “heavily gang-
related” girlfriend. As to how the stolen property came to be in
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her car, defendant surmised that it must have been placed there
by the many people she let use her car.
Rejecting defendant’s testimony, the jury returned a guilty
verdict.
Because defendant had already served three years in prison
for a different count in this case and because she was indigent,
the trial court imposed no imprisonment, no probation, and no
fines or fees.
D. Appeal
Defendant filed this timely appeal.
DISCUSSION
It is undisputed that the trial court admitted evidence that
defendant’s girlfriend knowingly possessed the stolen property in
defendant’s car. What is at issue on appeal is whether the trial
court erred in refusing to give a third party culpability jury
instruction regarding the girlfriend’s possible guilt of the crime of
receiving stolen property. We independently review the propriety
of the trial court’s jury instructions. (People v. Mitchell (2019) 7
Cal.5th 561, 579.) Here, we independently conclude that the trial
court did not err, and do so for three reasons.
I. Forfeiture
As a threshold matter, defendant forfeited her instructional
claim below for two separate reasons. First, although defendant
initially requested a third party culpability instruction, she
subsequently withdrew that request. Because a third party
culpability instruction is a “pinpoint” instruction that a court
need not give unless requested (People v. Gutierrez (2009) 45
Cal.4th 789, 824 (Gutierrez)), and because defendant’s
withdrawal negated her earlier request, defendant forfeited her
right to raise this issue on appeal. Second, although the record
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suggests that defendant proffered two potential third party
culpability instructions to the trial court before withdrawing her
request, defendant did not include either of them in the record on
appeal and has instead offered her view on how the court “should
have instructed” the jury. This failure to provide specific
language also amounts to a forfeiture. (See People v. Padilla
(2002) 98 Cal.App.4th 127, 136.)
Defendant responds that any forfeiture is the result of the
ineffectiveness of her counsel, such that she is still entitled to
relief. We disagree. To establish the ineffectiveness of counsel, a
defendant must establish (1) counsel’s deficient performance, and
(2) that, but for that deficient performance, it is reasonably
probable that the outcome of the proceeding would have been
different. (People v. Mickel (2016) 2 Cal.5th 181, 198.) Counsel
was not deficient in withdrawing the proffered third party
culpability instructions because, as we explain next, no such
instruction was warranted and counsel’s decision not to seek an
unwarranted instruction is not deficient performance. (See, e.g.,
People v. Lucero (2000) 23 Cal.4th 692, 729-731.)
II. Lack of Merit
Because it constitutes a pinpoint instruction (People v.
Hartsch (2010) 49 Cal.4th 472, 504 (Hartsch)), a jury instruction
on third party culpability need only be given if it is (1) requested
by a party, (2) legally correct, and (3) not duplicative, confusing
or argumentative (id. at p. 500; People v. Harris (2013) 57 Cal.4th
804, 853 (Harris)). Even if we overlook defendant’s failure to
request a third party culpability instruction and assume that a
third party culpability instruction is legally correct, the trial
court did not err in declining to give such an instruction in this
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case because it would have been duplicative, confusing, and, at
least as to the instructions suggested on appeal, argumentative.
A third party culpability instruction would have been
duplicative. The third party culpability doctrine only applies
where evidence that someone else committed a crime “‘raises a
reasonable doubt’” as to whether defendant did so. (Gutierrez,
supra, 45 Cal.4th at p. 824.) Because the general reasonable
doubt instruction already informs the jury that it cannot convict
the defendant if the evidence, as a whole, raises a reasonable
doubt as to her guilt, it is well settled that a third party
culpability instruction is almost always duplicative and hence
unnecessary. (Id., at pp. 824-825; Harris, supra, 57 Cal.4th at p.
854; Hartsch, supra, 49 Cal.4th at p. 504; People v. Johnsen
(2021) 10 Cal.5th 1116, 1158 (Johnsen) [“There is no precedent
that compels the trial court to instruct the jury specifically on the
reasonable doubt standard in the context of third party
culpability when the jury has already received a general
instruction on the reasonable doubt instruction”].) Defendant
argues that a third party culpability instruction would not have
been duplicative in this case because the court elsewhere gave the
CALCRIM No. 373 instruction, which told the jury “not [to]
speculate about whether” “another person [who] may have been
involved in the” receipt of stolen property crime “has been or will
be prosecuted.” The CALCRIM No. 373 instruction, defendant
argues, “likely drew the jury’s attention away from the facts that
could raise a reasonable doubt” as to her guilt. We disagree. The
CALCRIM No. 373 instruction also told the jury that it was not to
speculate about the potential guilt of others because its “duty
[was] to decide whether the defendant on trial committed the
crime charged,” which effectively reminded the jury that its job
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was to decide whether the evidence proved the defendant’s guilt
beyond a reasonable doubt. As a result, the CALCRIM No. 373
instruction in no way negated the general reasonable doubt
instruction or otherwise rendered a third party culpability
instruction necessary. (Johnsen, supra, 10 Cal.5th at p. 1157
[holding that giving a CALJIC instruction similar to CALCRIM
No. 373 did not necessitate or otherwise warrant a third party
culpability instruction].)
A third party culpability instruction would have been
confusing. Because two people can knowingly possess the same
stolen property at the same time (People v. Sifuentes (2011) 195
Cal.App.4th 1410, 1417 [“[p]ossession may be shared with
others”], overruled on other grounds, People v. Farwell (2018) 5
Cal.5th 295; CALCRIM No. 1600 [“[t]wo or more people may
possess something at the same time”]), the girlfriend’s possible
guilt of this crime says nothing about defendant’s possible guilt.
In this context, telling the jury that the girlfriend’s possible guilt
had any bearing on defendant’s possible guilt would have been at
worst misleading and at best confusing. This is no doubt why the
prosecutor, the trial court, and defense counsel all agreed that a
third party culpability instruction might confuse the jury.
A third party culpability instruction—at least those
suggested by defendant in this appeal—would also have been
argumentative. On appeal, defendant suggests that the pinpoint
instruction should have instructed the jury on “what use, if any
[the jury] could put the evidence that the [stolen credit] cards
were in a wallet along with the girlfriend’s [ID]” and on “how to
evaluate the girlfriend’s actions.” However, an instruction that
“highlight[s] “‘“specific evidence”’” and thereby “‘invite[s] the jury
to draw inferences favorable to one of the parties from [those]
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specified items of evidence’” is argumentative and, on that basis,
must not be given. (People v. Earp (1999) 20 Cal.4th 826, 886;
People v. Woods (2015) 241 Cal.App.4th 461, 488; People v.
Mackey (2015) 233 Cal.App.4th 32, 112.) Because the instruction
defendant proffers on appeal highlights the specific evidence
regarding the girlfriend’s actions and the proximity of her IDs
(but not defendant’s IDs) to the stolen credit cards, it is
argumentative and, on that basis, inappropriate.
III. No prejudice
For the same reason that a third party culpability
instruction in this case would have been duplicative, its absence
is necessarily harmless. (Gutierrez, supra, 45 Cal.4th at p. 825;
People v. Abilez (2007) 41 Cal.4th 472, 517.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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