Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Super. Ct. No. 06F08035
HULL, J.A jury convicted defendant Joseph Clark of receiving stolen property (Pen. Code § 496, subd. (a); unspecified section references that follow are to the Penal Code) and the trial court found a prior conviction allegation to be true. (§ 667.5, subd. (b).) Sentenced to an aggregate prison term of three years, defendant appeals. Defendant asserts that the trial court erred in (1) denying his motion for new trial based on jury misconduct, (2) failing to give a unanimity instruction, and (3) failing to instruct the jury on mistake of fact. We affirm the judgment.
Facts and Proceedings
In an effort to target thieves, the Sacramento County Sheriff’s Department set up a truck and trailer containing two large rolls of new copper tubing. A tracking device was installed inside the tubing.
Thereafter, two women removed the copper tubing from the trailer and attempted to sell it at a nearby recycling yard. The owner of the recycling yard suspected that the tubing was stolen and refused to buy it.
Later the same day, defendant and one of the women returned to the recycling yard. The two brought the same copper tubing offered to the yard earlier in the day, but the tubing was now cut into pieces and most of the insulation had been pulled off. When the two arrived at the yard on this second occasion, the woman was still pulling insulation off the tubing and defendant was chopping the copper into pieces. While at the recycling yard, the woman asked to use the port-a-potty and, while doing so, left the tracking device there.
When the owner of the yard asked defendant for identification, defendant gave him a driver’s license in the name of Alex White. The owner of the recycling yard again refused to take the copper and later gave sheriff’s deputies the license plate number of the vehicle used to carry the copper tubing. Defendant was later arrested, and officers recovered the tracking device from the port-a-potty.
At trial, the arresting officer testified that defendant admitted helping the women cut the copper and admitted that he used false identification to try to sell the copper. Defendant also admitted that he knew the women had taken the copper tubing from a trailer, and that they had thrown away the tracking device at the recycling yard.
The jury convicted defendant of receiving stolen property. (496, subd. (a).) Thereafter, defendant moved for a new trial based on juror misconduct. The court denied the motion, and sentenced defendant to a prison term of three years. This appeal followed.
Discussion
I
Juror Inattentiveness
Defendant contends that the court should have granted his motion for a new trial because a juror fell asleep during the trial testimony. Defendant argues that the juror’s misconduct deprived him of the right to a fair trial by 12 impartial jurors. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; People v. Nesler (1997) 16 Cal.4th 561, 578.)
In support of his claim of juror misconduct, defendant introduced the statements of an investigator for the Sacramento County Public Defender’s Office. According to the investigator, juror S.M. (hereinafter referred to as “the juror”) said the following: “During the trial, while witnesses were testifying, I dozed off on two or three occasions. I was asleep for five to ten minutes each time. I remember one of the times I fell asleep was when one of the police officer[s] was testifying. Other than those two or three times, I was paying full attention to the case and I’m sure that I got all the important details. I also fell asleep once during deliberations. It was when the court reporter was reading off some testimony. I believe I was asleep for five or 10 minutes.”
The investigator also said that alternate juror M.R. told him that “[o]n probably five or six occasions [‘a younger male juror . . . I can’t recall his name’], fell asleep in the jury box while court was going on. He would not be out for very long because I would ruffle my notebook or nudge him or say ‘Hey.’ This would wake him up.”
The trial court denied defendant’s motion for a new trial, ruling that “momentarily closing your eyes and dozing off is not misconduct.” The court also determined that if any misconduct occurred, defendant was not prejudiced. Defendant contends that it was error for the trial court to deny his motion.
“In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial. (People v. Dorsey (1995) 34 Cal.App.4th 694, 703-704.) To determine whether misconduct occurred, “[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination. [Citations.]” (People v. Nesler, supra, 16 Cal.4th at p. 582.)
The record contains only the investigator’s reports; it does not contain sworn declarations from the jurors themselves. Faced with conflicting descriptions of the timing and duration of the juror’s inattentiveness, we defer to the trial judge’s characterization of the juror’s behavior as “momentarily closing [his] eyes and dozing off.” (See People v. Nesler, supra, 16 Cal.4th at p. 582.) However, we question the trial court’s conclusion that such behavior does not constitute misconduct.
We acknowledge that this court has in the past written that “the bare fact of sleeping at an unknown time for an unknown duration and without evidence of what, if anything, was occurring in the jury room at the time is insufficient to support a finding of misconduct or to conclude [a] juror was unable to perform his duty.” (People v. Bowers (2001) 87 Cal.App.4th 722, 731.) But the issue in Bowers was whether a juror could be discharged for sleeping during jury deliberations where there was no evidence regarding what was happening in the jury deliberation room at the time he slept. We have a different matter here.
The California Supreme Court has observed that “[a] jury’s failure to pay attention to the evidence presented at trial is a form of misconduct which will justify the granting of a new trial if shown to be prejudicial to the losing party. [Citation.] The duty to listen carefully during the presentation of evidence at trial is among the most elementary of a juror’s obligations. Each juror should attempt to follow the trial proceedings and to evaluate the strengths and weaknesses of the evidence and arguments adduced by each side so that the jury’s ultimate determinations of the factual issues presented to it may be based on the strongest foundation possible. Were the rule otherwise, litigants could be deprived of the complete, thoughtful consideration of the merits of their cases to which they are constitutionally entitled. (U.S. Const., 6th and 7th Amends.; Cal. Const., art. I, § 16.)” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411.)
The trial court erred to the extent that the court viewed a juror sleeping during the taking of evidence as anything other than misconduct. But, “a new trial is required only if it can be established that [defendant] was somehow prejudiced by the juror[’s] inattentiveness.” (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 415.)
Although no evidence of actual prejudice was introduced in this case, “[i]t is well settled that a presumption of prejudice arises from any juror misconduct.” (People v. Honeycutt (1977) 20 Cal.3d 150, 156.) “The presumption of prejudice is an evidentiary aid to those parties who are able to establish serious misconduct of a type likely to have had an effect on the verdict or which deprived the complaining party of thorough consideration of his case, yet who are unable to establish by a preponderance of the evidence that actual prejudice occurred. The law thus recognizes the substantial barrier to proof of prejudice which [exists], and it seeks to lower that barrier somewhat.” (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 416.)
“However, the presumption is not conclusive; it may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct. [Citations.] Some of the factors to be considered when determining whether the presumption is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.” (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 417, fn. omitted.)
“[The] presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice . . . .” (In re Hamilton (1999) 20 Cal.4th 273, 296.)
Cases addressing the prejudicial effect of juror inattentiveness “uniformly decline to order a new trial in the absence of convincing proof that the jurors were actually asleep during material portions of the trial.” (People v. Bradford (1997) 15 Cal.4th 1229, 1349.)
Regarding the strength of the evidence that juror S.M. was actually asleep, we note that there is no evidence in the record that any of the other participants in the trial--i.e., the judge, attorneys, bailiff, or reporters--noticed that juror S.M. was asleep during trial, except, according to the defense investigator, juror M.R. Even so, the trial court appeared to accept as a fact that S.M. had at least dozed off at some point during the presentation of evidence. Thus, in ruling on the motion, the trial court said: “I think, you know, as has been pointed out, momentarily closing your eyes and dozing off is not misconduct.”
The question then is whether the record is such that we can find there is no reasonable probability of prejudice from juror S.M.’s misconduct. We find that we can.
We note first of all that it is highly unlikely that S.M. slept for five to 10 minutes at a time on two or three occasions. We accept instead the trial court’s characterization of S.M.’s misconduct as “momentarily closing [his] eyes and dozing off” which is consistent with juror M.R.’s report to the investigator that S.M. would fall asleep on occasion but that he was not “out for very long” because M.R. would ruffle a notebook or nudge S.M. and that would wake him up. And, while S.M. thought he slept during a policeman’s testimony, he apparently could not be certain of it, nor could he say which of the two law enforcement officers who testified was testifying at the time that he slept or what portions of the officer’s testimony he slept through. Significantly, S.M. was “sure that [he] got all the important details” and was otherwise “paying full attention to the case.” Moreover, there is nothing here to suggest that S.M. did not listen to the attorneys’ arguments and the court’s instruction or to suggest that he did not fully participate in the jury’s discussion of the evidence once deliberations began.
Viewing the record as a whole, we cannot find any reasonable probability of prejudice to the defendant from juror S.M.’s misconduct. The trial court did not err in denying the motion for a new trial.
II
Unanimity Instruction
Defendant contends that the trial court erred in failing to instruct jurors that they were required to agree unanimously on the particular act that constituted receiving stolen property. We disagree.
“It is well established that the entire jury must agree upon the commission of the same act in order to convict a defendant of the charged offense.” (People v. Muniz (1989) 213 Cal.App.3d 1508, 1517.) “When a defendant is charged with a single [crime] but the evidence reveals more than one [criminal] act, the prosecution must either select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that the defendant committed the same specific criminal act. [Citations.] The unanimity requirement is constitutionally rooted in the principle that a criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged” (People v. Brown (1996) 42 Cal.App.4th 1493, 1499-1500) and “is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.” (People v. Sutherland (1993) 17 Cal.App.4th 602, 612; see also Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.)
“In deciding whether to give [a unanimity] instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (People v. Russo (2001) 25 Cal.4th 1124, 1135.)
This case falls clearly within the second prong of the Russo analysis. The information alleged that defendant violated section 496, subdivision (a), “in that said defendant did unlawfully buy, receive, conceal, sell, withhold, and aid in concealing, selling, and withholding property, belonging to COUNTY OF SACRAMENTO, which had been stolen and obtained by extortion, knowing that said property had been stolen and obtained by extortion.”
Defendant suggests several purported “acts” upon which he believes the jury could have based their decision. He claims that “[s]ome of the jurors may have believed it was reasonable that [defendant] would accept the girls’ explanation [regarding the origin of the stolen property] without giving much thought as to the plausibility of the explanation. However . . . [t]hese same jurors could have found beyond a reasonable doubt [that defendant] withheld the property from its owner when he left the yard. [¶] Conversely, other jurors may have felt insufficient evidence existed to prove what [defendant] was planning to do with the copper once he left the yard and did not believe beyond a reasonable doubt that [defendant] was withholding the property. Yet, these same jurors may have believed [defendant] did in fact know the property was stolen when he first possessed it.”
This argument fails. “[A] unanimity instruction is not required where the criminal acts are so closely connected as to form a single transaction or where the offense itself consists of a continuous course of conduct. [Citation.] . . . [I]n both cases, the multiple acts constitute one discrete criminal event.” (People v. Sanchez (2001) 94 Cal.App.4th 622, 631.) “[C]ourts have found a continuing course of conduct where the wrongful acts were successive, compounding, interrelated, [or] aimed at a single objective.” (Id. at p. 632.) Here, defendant’s criminal actions were interrelated and aimed at selling or helping others sell the stolen copper tubing. Because the acts alleged by the prosecution describe a single criminal event, no unanimity instruction was required. (Id. at pp. 631-632.)
Defendant relies on United States v. Gipson (5th Cir. 1977) 553 F.2d 453, a case we find inapposite. In Gipson, a jury found that the defendant had committed one of the acts necessary to violate a federal statute prohibiting “receiving, concealing, or storing, . . . bartering, selling, or disposing” of a stolen vehicle, although there was no indication that all jurors agreed as to which specific act the defendant had committed. (Id. at p. 458; see id. at pp. 458-459.) The appellate court explained that the six acts prohibited by the statutes fell into two distinct conceptual groupings, the first consisting of receiving, concealing, and storing, and the second comprised of bartering, selling, and disposing. (Id. at p. 458.) The court further held that “the two conceptual groupings are sufficiently different so that a jury finding of the actus reus element of the offense would not be ‘unanimous’ if some of the jurors thought the defendant committed only an act in the first conceptual grouping while others believed he committed an act only in the second.” (Id. at p. 458.) Because “the jury was permitted to convict [the defendant] even though there may have been significant disagreement among the jurors as to what he did,” the court held that a unanimity instruction should have been given. (Id. at pp. 458-459.)
Here, however, the jury based their finding upon materially undisputed facts that described a single criminal event. Defendant does not dispute that he in fact committed all of the acts alleged by the prosecution; instead, he argues that he lacked the requisite knowledge that the copper wiring was stolen. This was the single issue the jury was to decide and, once it found the evidence sufficient to prove beyond a reasonable doubt that defendant in fact knew the copper wire was stolen, the crime was complete.
There was no error.
III
Mistake-of-Fact Instruction
Defendant contends that the trial court erred in failing to instruct the jury with a mistake-of-fact instruction. No such instruction was necessary.
“To sustain a conviction for receiving stolen property, the prosecution must prove: (1) the property was stolen; (2) the defendant knew the property was stolen (hereafter the knowledge element); and, (3) the defendant had possession of the stolen property.” (People v. Russell (2006) 144 Cal.App.4th 1415, 1425.) “Although receiving stolen property has been characterized as a general intent crime, the second element of the offense is knowledge that the property was stolen, which is a specific mental state. With regard to the knowledge element, receiving stolen property is a ‘“specific intent crime.”’” (Ibid.) Accordingly, a defendant is entitled to a mistake-of-fact instruction when “there exists evidence sufficient for a reasonable jury to find in his favor” on that defense. (Mathews v. U.S. (1998) 485 U.S. 58, 63 [99 L.Ed.2d 54, 61].)
Defendant proposed two possible instructions, the first of which read: “The prosecution must prove that the defendant took the property with criminal intent. The defendant contends (he/she) did not have criminal intent because (he/she) honestly believed that the property was [abandoned][lost]. . . .” The second proposed instruction modified CALCRIM No. 3406, and provided: “The prosecution must prove beyond a reasonable doubt that the defendant had the [specific intent] [and] [mental state] required for __________ <insert crime[s]>. The defendant contends that (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact. . . .”
The trial court refused these jury instructions for two reasons: (1) defendant did not introduce any evidence to support a mistake-of-fact defense, and (2) the element of subjective knowledge was already included in the jury instructions given at trial, obviating the need for any further instructions thereon.
The trial court properly found that there was no evidence presented at trial to warrant a mistake-of-fact instruction. Defendant’s proposed jury instructions stated, “The defendant contends (he/she) did not have criminal intent because (he/she) honestly believed that the property was [abandoned] [lost].” (Italics added.) Defendant did not testify at trial. He apparently bases his contention on testimony by the arresting officer who stated that defendant told him that the women had “found” the tubing on a trailer and had taken it. This evidence does not demonstrate that defendant harbored the mistaken belief that the two women were in lawful possession of the copper tubing. Accordingly, this statement does not provide sufficient evidence to support a mistake-of-fact instruction. (Mathews v. U.S., supra, 485 U.S. at p. 62.)
Defendant counters that the sufficient evidence requirement unconstitutionally saddles him with a burden of persuasion. This argument is without merit. Defendant was not required to introduce evidence of a mistake; the court merely limited jury instructions to issues that were argued at trial and supported by the evidence.
Defendant contends that a mistake-of-fact instruction was necessary to correct a misstatement by the prosecutor and to clarify other instructions. Defendant points to the prosecutor’s statement that defendant “should have known. He did know it was stolen.” Even assuming the prosecutor misstated the law, the legal standard was later clarified by the defense attorney’s closing statement and the given jury instructions. (See People v. Visciotti (1992) 2 Cal.4th 1, 58-59.)
Defendant claims that the jury may have been confused by the court’s instructions regarding circumstantial evidence, CALCRIM Nos. 224 and 225, which read: “[W]hen considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.” Defendant claims that this invited the jury to consider whether defendant’s subjective belief was objectively reasonable. The instructions do no such thing. They simply inform the jury that in determining a defendant’s subjective state of mind, they must still reasonably evaluate the evidence and reach a reasonable conclusion.
The trial court correctly determined that the standard jury instructions adequately addressed the element of subjective knowledge, and defense counsel conceded as much at trial. The instruction given by the trial court required the jury to find that “[w]hen the defendant bought, received, sold, aided in selling, concealed or withheld from its owner, aided in concealing or withholding from its owner the property, he knew that the property had been stolen.” (Italics added.) This instruction clearly requires subjective knowledge.
Even assuming the trial court erred in failing to give a mistake-of-fact instruction, the error was harmless because it is not reasonably probable that the jury would have reached a different verdict had the instructions been given. (People v. Flood (1998) 18 Cal.4th 470, 489-490; People v. Mayer (2003) 108 Cal.App.4th 403, 413.) There was overwhelming evidence that defendant knew the copper tubing was stolen. Defendant admitted that he knew the two women had taken the copper tubing from a trailer on the side of the road. He knew that the women had found and removed a tracking devise from the tubing. He knew that the women had already tried to return the copper tubing once, but had been refused. He helped chop the tubing into small pieces even though the tubing was brand new and cost approximately $1,000. Also, he used false identification when attempting to sell the tubing, even though he had his own identification with him. No rational jury could find that defendant was unaware that the tubing was stolen.
Disposition
The judgment is affirmed.
We concur: SIMS, Acting P.J., RAYE, J.