Opinion
B201723
10-29-2008
THE PEOPLE, Plaintiff and Respondent, v. LIONEL RAY DENSON, Defendant and Appellant.
Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant and appellant Lionel Ray Denson appeals from the judgment entered following a jury trial that resulted in his conviction for receiving stolen property. Denson was sentenced to a prison term of three years. Densons sole contention on appeal is that the trial court erred by failing to give CALJIC No. 2.15. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On December 31, 2006, at approximately 3:20 p.m., Rene Biren was seated in her automobile in a parking lot in Beverly Hills. Biren had been babysitting her grandson, and was waiting for her daughter to finish shopping so she could return the baby to her. Biren could see her daughters car from where she waited in the parking lot. She noticed Denson looking through her daughters vehicles windows into the interior of the car "`suspiciously." Biren tapped her horn and Denson moved away. Denson then moved to the next car and tried the handle. When Biren tapped her horn again, Denson looked back at her and walked into an alley, carrying a duffel bag over his shoulder. Biren found Densons conduct suspicious and had her daughter alert police.
Sergeant Michael Hill of the Beverly Hills Police Department responded to the call and found Denson near where Biren had seen him, in the "Beverly Alley." He asked Denson what he was doing. Denson handed Hill a business card that had "Lululemon" written on it, and stated he was looking for that address. He claimed he was looking for a place to urinate. A search of Densons duffel bag revealed, among other things, a pair of womens pants with an anti-theft sensor and the price tag still attached, a womans coin purse full of change, a pair of walkie-talkies, and other items. Denson was arrested.
On January 2, 2007, Detective James Greene brought the recovered items to Lululemon Athletica, a store located on North Beverly Drive near where Denson had been arrested. When the detective entered the store, the sensor attached to the pants triggered the alarm. The store had two doors, a front entrance for customers and a back door leading to an alley where employees parked. The stockroom and office were located at the back of the store by the alley. The rear entrance was not always locked, and was not alarmed during the day, when the store was open. The back door would not sound if a sensor tag was taken through it. A set of walkie-talkies, used by the Lululemon employees to communicate within the store, was generally stored on a shelf at the back of the store. Kirsten Charlebois was the Lululemon manager who opened the store on New Years Day. When she did so, she noticed that the walkie-talkies were not in their usual spot. She identified the walkie-talkies found in Densons bag as the stores. She also recognized the pants that were found in Densons bag. They were missing a drawstring and, as of December 30, were located in a "cubby" near the managers office at the back of the store, awaiting repair.
Denson presented no evidence.
2. Procedure.
Trial was by jury. Denson was convicted of receiving stolen property (Pen. Code, § 496, subd. (a)). The jury deadlocked on the charge of petty theft, and the trial court dismissed that count in the interests of justice (§ 1385.) The trial court granted Densons Romero motion and struck various prior conviction allegations. It sentenced Denson to a term of three years in prison. It imposed a restitution fine, a parole restitution fine, and a court security assessment. Denson appeals.
All undesignated statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
The trial court did not prejudicially err by refusing to instruct with CALJIC No. 2.15.
a. Additional facts.
The trial court instructed the jury with CALJIC No. 2.15 in regard to the petty theft count (on which the jury deadlocked), but not the receiving stolen property count (on which the jury rendered a guilty verdict). During deliberations, the jury queried, "Doesnt CALJIC 2.15, possession of stolen property, conflict with CALJIC 2.90, presumption of innocence, reasonable doubt, burden of proof? The jury cannot reconcile the two instructions." The court responded by rereading CALJIC No. 2.15 and affirming to the jury that the instruction in no way changed or reduced the burden of proof. The court reiterated that the jury could not convict unless it was satisfied beyond a reasonable doubt as to each and every element of the offense as it related to the petty theft charge.
The jury resumed deliberations. Defense counsel then stated that after reading the Use Notes to CALJIC No. 2.15, he believed the instruction should also have been given as to the receiving stolen property count. The trial court refused to so instruct, stating that it had never given the instruction on a receiving stolen property charge. Denson contends this was prejudicial error. We disagree.
b. Discussion.
It is well settled that a jury may infer guilt of a theft-related crime from the fact a defendant is in possession of recently stolen property, when coupled with slight corroboration by other inculpatory circumstances which tend to show guilt. (People v. Barker (2001) 91 Cal.App.4th 1166, 1173.) "Proof of the crime of receiving stolen property requires establishing that the property in question was stolen, that the defendant was in possession of it, and that the defendant knew the property to be stolen. [Citations.] A long line of authority, culminating in People v. McFarland (1962) 58 Cal.2d 748 . . . establishes that proof of knowing possession by a defendant of recently stolen property raises a strong inference of the other element of the crime: the defendants knowledge of the tainted nature of the property. This inference is so substantial that only `slight additional corroborating evidence need be adduced in order to permit a finding of guilty. [Citation.]" (People v. Anderson (1989) 210 Cal.App.3d 414, 420-421; People v. Reyes (1997) 52 Cal.App.4th 975, 984-985.) Corroborating circumstances may include the attributes of possession, including time, place, or manner, as well as the defendants false explanations or evasive behavior. (People v. Reyes, supra, at p. 985; People v. McFarland (1962) 58 Cal.2d 748, 754.)
CALJIC No. 2.15 informs jury of these principles. It states: "If you find that a defendant was in [conscious] possession of recently [stolen] . . . property, the fact of that possession is not by itself sufficient to permit an inference that the defendant . . . is guilty of the crime of _____. Before guilt may be inferred, there must be corroborating evidence tending to prove defendants guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you may consider [the attributes of possession — time, place and manner,] [that the defendant had an opportunity to commit the crime charged,] [the defendants conduct,] [his] [her] false or contradictory statements, if any,] [and] [or] [other statements [he] [she] may have made with reference to the property] [a false account of how [he] [she] acquired possession of the stolen property] [any other evidence which tends to connect the defendant with the crime charged]."
A trial court must sua sponte instruct the jury on general principles of law that are commonly or closely and openly connected to the facts and that are necessary for the jurys understanding of the case. (People v. Najera (2008) 43 Cal.4th 1132, 1136; People v. Abilez (2007) 41 Cal.4th 472, 517; People v. Brown (2003) 31 Cal.4th 518, 559.) Contrary to the trial courts conclusion, CALJIC No. 2.15 is applicable when the charge is receiving stolen property. (See People v. Gamble (1994) 22 Cal.App.4th 446, 453 [CALJIC No. 2.15 "is appropriate when the crime charged is theft, robbery or knowingly receiving stolen property"]; People v. Barker, supra, 91 Cal.App.4th at p. 1174.) CALJIC No. 2.15 is not, however, required to be given sua sponte. (People v. Najera, supra, at p. 1139.) Thus, the trial court had no duty to give the instruction until after defense counsel so requested.
Assuming without deciding that it would have been proper to give CALJIC No. 2.15 at the belated point at which it was requested by defense counsel, any error was harmless in light of the courts other instructions and the facts of the case. When determining whether an instructional error is prejudicial, we consider whether there is a reasonable likelihood that the jury misinterpreted the law in a way potentially unfavorable to the defense, viewing the instructions as a whole. (People v. Barker, supra, 91 Cal.App.4th at p. 1176.) There is no such likelihood in the instant case.
First, CALJIC No. 2.15 is "merely a specific application of the general instruction governing circumstantial evidence" and is "not ` "vital to a proper consideration of the evidence by the jury" [citation]. [Citation.] " (People v. Najera, supra, 43 Cal.4th at p. 1138.) " `[A]n instruction that tells the jury what kinds of rational inferences may be drawn from the evidence does not provide any insight jurors are not already expected to possess. [Citation.]" (Id. at p. 1139.) Further, "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." (Henderson v. Kibbe (1977) 431 U.S. 145, 155.)
Second, Densons jury was advised that it must consider the instructions as a whole. The trial court properly instructed on the elements of receiving stolen property, which included that the defendant "actually knew the property was stolen or obtained by theft at the time he received or concealed the property." (CALJIC No. 14.65.) It further instructed on the burden of proof and presumption of innocence (CALJIC No. 2.90), informing the jury that Denson was presumed innocent and could not be convicted of any crime unless the People proved him guilty beyond a reasonable doubt.
Third, and most significantly, we do not discern any possible harm from the use of the instruction in the particular factual context presented here. As noted, the crime of receiving stolen property requires proof that the defendant received property which had been stolen, and that the defendant actually knew the property was stolen or obtained by theft at the time he received it. (People v. Reyes, supra, 52 Cal.App.4th at pp. 984-985.) There was overwhelming and essentially undisputed evidence Denson possessed stolen property. Thus, CALJIC No. 2.15 would primarily have addressed the knowledge element of the offense. Its omission could have been prejudicial, if at all, only if there was an absence of evidence corroborating Densons knowledge the property was stolen. Such was not the case. The corroborating evidence was substantial. Denson was found with the stolen items near the store from which they were taken. The pants were still in the store at least as late as December 30, the day before Denson was apprehended. Denson had a business card in his possession bearing the stores name when he was arrested. The evidence showed he had an opportunity to slip in through a sometimes-unlocked alley door and take the items from the back, unattended area of the store. Circumstantial evidence regarding the time, place, and manner of possession provided ample corroboration. (See People v. Reyes, supra, at p. 985.) The evidence did not show a legitimate explanation for his possession of the items. " `Possession of stolen property, accompanied by no explanation, or an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen. The rule is generally applied where the accused is found in possession of the articles soon after they were stolen. [Citations.]" (People v. McFarland, supra, 58 Cal.2d at p. 754.) The pants still bore a security tag and a price tag, from which the jury could infer Denson knew they were not merely discarded, as he suggests. Where, as here, the record contains sufficient corroborating evidence, omission of CALJIC No. 2.15 is necessarily harmless.
In sum, there was no reasonable likelihood the jury would have reached a different result had CALJIC No. 2.15 been given in regard to the receiving stolen property count. (See People v. Prieto (2003) 30 Cal.4th 226, 249.)
DISPOSITION
The judgment is affirmed.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.