Opinion
F060794 Super. Ct. No. F10901036
08-08-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT GENE HINSON, Defendant and Appellant.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J., and Poochigian, J.
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Robert Hinson, of receiving stolen property (Pen. Code, § 496, subd. (a)). On August 11, 2010, the court sentenced Hinson to the aggravated term of three years.
On appeal, Hinson contends: 1) the court committed instructional error; and 2) the prosecutor engaged in misconduct during closing argument. We will affirm.
FACTS
The Trial Evidence
Melissa Mellino testified that she lived with her husband and two young children on Berkeley Avenue in Fresno. On weekdays, her husband left for work at 2:30 p.m. and returned at midnight. Whenever her husband worked, Mellino and her children would have dinner at her parents' house located six blocks from her house and usually stayed there about three hours.
On Wednesday evening, February 24, 2010, Mellino went to her parents' house and returned home about 8:00 p.m. When she went into her garage, she noticed things were out of place and that the following items were missing: an electric hedge trimmer, miscellaneous tools, and two black suitcases containing clothing, pictures and other personal items that had belonged to Mellino's deceased mother-in-law. When she looked in her backyard, she found a black trash bag draped over the side gate that led to the backyard and that the prongs on the gate were bent down. She also immediately noticed that an air compressor, a pressure washer, a mountain bike, and a tricycle were missing from the yard.
The door leading from the backyard into the garage could be closed but not locked because a dog had chewed on the door jamb.
Mellino reported the theft to police the morning of February 25, 2010. At approximately 4:30 p.m., Officer Anthony Gates interviewed Mellino at her home. Mellino told Gates she believed Hinson might be involved in the theft. Mellino knew Hinson because she had spoken to him on several occasions when Hinson had tried to sell her and her husband used tools and CD's. She also told Gates that on February 22, 2010, at approximately 9:30 p.m., while her husband was at work, Mellino was in the bathroom helping one child brush his teeth when she walked out and saw Hinson standing in the living room talking to her other child. Hinson asked Mellino if she wanted to buy children's clothing, toys or some tools for her husband. He also asked if she had a mountain bike or air compressor for sale. Mellino had not advertised any of those types of items for sale and told him she did not have anything for sale. Hinson told Mellino he had been by her house earlier and asked where she had been. Mellino told him that she often ate dinner with her parents. Mellino eventually got Hinson out of the house after telling him that she would have her husband come talk to him if he wanted to buy anything.
After Hinson's visit, Mellino and her husband put locks on the gate leading to their backyard.
Hinson lived a few blocks away from Mellino in the backyard of his brother's house in a covered area under a tree. After interviewing Mellino and a neighbor, Gates went to speak with Hinson there and saw hundreds of items neatly stacked up against the fence and around the tree. The items were consistent with things typically taken during burglaries and included drills, commercial light stands, trophies, fishing poles, and televisions.
Gates testified that Hinson was very disheveled and appeared to be a transient.
After speaking with Hinson, Gates brought Mellino to the backyard. Mellino identified the following property as belonging to her: a 20-foot ladder and a 4-foot ladder that had been in her backyard, and two suitcases, a dolly and a Bubba Keg water jug that had been in her garage. When Gates unzipped the cover on one of the suitcases Mellino saw a picture of her nephew on top. Both suitcases were full of pictures, clothing, and medical supplies that had belonged to Mellino's deceased mother-in-law.
All the items belonging to Mellino were covered with blankets and other items when Gates arrived at the yard. When Gates asked Hinson about the items belonging to Mellino, Hinson said that he had found them on the street in the trash.
Hinson testified that he knew Mellino's husband better than Mellino because her husband sometimes gave him work. Hinson had talked to Mellino twice prior to the burglary. Two to three months prior to the burglary, Hinson spoke to Mellino at her house about using her compressor to put air in his bicycle tires. A week or two before the burglary, Hinson spoke to Mellino at her house about borrowing some wrenches to fix a bicycle. He denied going to Mellino's house two days before the burglary.
Hinson further testified that a woman gave him the four-foot ladder approximately seven months prior to the burglary. He got the 20-foot ladder, the water jug and the suitcases a week and a half to two weeks prior to the burglary from a dumpster by a church in the neighborhood. When he found the suitcases, the larger suitcase was open and there was nothing inside of it or in a side pocket. After taking the suitcases home, he filled the larger suitcase "plumb full" with various items, including knives and an adding machine.
Gates testified that neither suitcase had any knives or an adding machine inside.
The Alleged Instructional Error
Hinson contends his testimony that he found the victim's property in a dumpster required the court to instruct the jury sua sponte with a mistake of fact instruction.Respondent contends the court was not required to give this instruction because there was no substantial evidence in the record that supported that theory and, alternatively, that any error was harmless. We will find that any error in the failure to charge the jury on mistake of fact was harmless.
See Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 3406.
"Errors in jury instructions are questions of law, which we review de novo. [Citation.] ... '"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.'" [Citations.] 'The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, ... and on the relationship of these defenses to the elements of the charged offense.' [Citation.] However, in the case of defenses, 'a sua sponte instructional duty arises "only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case. "' [Citation.] ... Moreover, there is no sua sponte duty to instruct on a defense if the evidence of that defense is minimal or insubstantial. [Citation.]" (People v. Russell (2006) 144 Cal.App.4th 1415, 1424.)
"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. [Citations.]" (People v. Russell, supra, 144 Cal.App.4th at p. 1425.)
"At common law, an honest and reasonable belief in the existence of circumstances, which, if true, would make the act with which the person is charged an innocent act, was a good defense. [Citations.] A person who commits an act or makes an omission under a mistake of fact which disproves his or her criminal intent, is excluded from the class of persons who are capable of committing crimes. [Citation.]" (People v. Russell, supra, 144 Cal.App.4th at p. 1425.)
Here, Hinson's testimony that he found the stolen property in a dumpster and that he believed the property had been abandoned provided substantial evidence from which the jury could have found that he did not knowingly possess stolen property. Thus, it was error for the court not to instruct the jury on a mistake of fact defense.
Although the Supreme Court has not yet determined what test of prejudice applies to the failure to instruct on an affirmative defense (People v. Salas (2006) 37 Cal.4th 967, 984) at least two appellate courts have held that the Watson standard applies in this situation. (People v. Russell, supra, 144 Cal.App.4th at pp. 1431-4132; People v. Zamani (2010) 183 Cal.App.4th 854, 866.) But, even assuming the more rigorous Chapman test applies (see Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), [state must prove error harmless beyond a reasonable doubt]), the court's error was harmless.
People v. Watson (1956) 46 Cal.2d 818 (Watson).
"Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt." (People v. McFarland (1962) 58 Cal.2d 748, 754.)
Here, less than 24 hours after the burglary at the victim's house, Hinson was found in possession of several items stolen from her residence and backyard. Moreover, there was strong corroboration of Hinson's guilt. First, since it was undisputed that Mellino's property was taken from her house and backyard the night of the burglary, Hinson could only have found the property in a dumpster the following morning, not up to two weeks prior to the burglary as he testified. Further, Hinson testified that the victim's large suitcase was empty when he found it and that he filled it with property from his yard, including some knives and an adding machine. However, this testimony was contradicted by Gates's testimony that he did not find any knives or an adding machine in the suitcase, and Mellino's testimony that when Gates showed her the suitcases they were both filled with personal effects that once belonged to her deceased mother-in-law. Additionally, it was undisputed that the items stolen from the victim were covered with blankets and other property, apparently to conceal them, when Gates found them. Finally, we note that the jury could reasonably have found from Mellino's testimony that Hinson was casing Mellino's house when he visited her two days before the burglary and asked her where she had been earlier that evening.
Thus, in view of the overwhelming evidence that Hinson was guilty of receiving stolen property, we conclude that any error in failing to charge the jury on the mistake of fact defense was harmless beyond a reasonable doubt.
The Prosecutor's Alleged Misconduct
Factual Background
Prior to the prosecutor beginning her argument, the court instructed the jury that "the arguments of counsel are not evidence." It also charged the jury on the meaning of reasonable doubt pursuant to CALCRIM 220. Thereafter, during the prosecution's closing argument the following colloquy occurred:
"[THE PROSECUTOR]: Now, much will be made of the reasonable doubt standard that there is in this case. And the instruction is a little -- it is hard to understand sometimes. And then you need bigger words and reasonable doubt to explain it. But basically what reasonable doubt is is the ability to turn to your neighbor and reasonably explain to him or her why you believe the defendant is guilty or not guilty and explain yourself and give the reasons for it. Not just a gut feeling, but explain X, Y and Z --
"[DEFENSE COUNSEL]: I'm going to object. That misstates the law.
"THE COURT: Overruled.
"[THE PROSECUTOR]: It is a reasonable belief in something. So it is that ability to explain yourself. You were not asked to check your common sense at the door when you were picked for this jury. You were not asked to do so. So use your common sense when evaluating the testimony that you heard yesterday and evaluating this case. And based
upon all of that, I believe that you will come back with guilty verdicts on both counts for the defendant.
"THE COURT: Ladies and Gentlemen, let me make clear, I have told you -- you have heard now at least twice the burden of proof and what it means. You have also had a chance to see it for yourselves. And you will have, again, a copy of the instructions for your use in the jury room. Also, I told you that the arguments of counsel are not evidence." [Italics added.]
During the defense's closing argument defense counsel responded to the prosecutor's comments on reasonable doubt during the following exchange:
"[DEFENSE COUNSEL]: Okay. Good afternoon. I want to -- I actually got a little distracted from this, and I want to deal with one issue before I start with what I had prepared, and that is the definition of reasonable doubt. Because I want to make it very clear that this is a high standard. It is the highest standard in all of the courts in the United States. People can sue for millions of dollars. That is a lower standard than a reasonable doubt. Courts are entitled to take children away from parents. That is a lower standard.
"[THE PROSECUTOR]: Objection, improper argument.
"THE COURT: Overruled.
"[DEFENSE COUNSEL]: That is a lower standard than reasonable doubt. Reasonable doubt is the highest standard in this country. And you are going to be given the law on what it says. And the reason why is because, we don't use reasonable doubt on an everyday situation[ ], when we decide what we are going to eat for dinner, when we decide where we are going to travel to, things like that. I want you to use the analogy of bigger decisions than simple things like dinner. I want you to think of your thought process when you decided to buy a home. How thorough were you before you bought a home? Your thought process, for some people, when you decided to say I do and getting married. Is that something you just jumped into? So those are very big decisions. And I don't want to minimize at all the decision you have to make here by just saying, just look to the person right next to you, and what can you reasonably argue. Because when you get the law in the back, that is not what it says.
"What it says is -- I'm not going to read the whole thing, but the last paragraph says, 'Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.' So there is a very important phrase here, abiding conviction. Abiding, long-lasting. That means if you vote a man guilty, your opinion is not going to change tomorrow, a year from now, a couple years from now. It doesn't just leave when you leave this courtroom. And conviction means you are convinced, you are certain." [Italics added.]
Analysis
Hinson contends the prosecutor engaged in misconduct during closing argument when she explained the concept of reasonable doubt to the jury in a manner that was inaccurate and unfair to him. He further contends the error was prejudicial because by overruling the defense objections to the argument, the court "gave its imprimatur of authority to these distortions." We will find that the prosecutor engaged in misconduct as Hinson contends but that the misconduct did not prejudice Hinson.
"The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Morales (2001) 25 Cal.4th 34, 44.)
"'Although counsel have "broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.]"' [Citations.] In particular, it is misconduct for counsel to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citations.]" (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266.)
Here, the prosecutor misstated the law when she equated the concept of reasonable doubt with a juror's ability to explain and give reasons for his or her verdict. By doing so, the prosecutor engaged in misconduct. The misconduct, however, did not prejudice Hinson.
"'[A]rguments of counsel "generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law." [Citation.]' [Citation.] 'When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for "[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." [Citation.]' [Citation.]" (People v. Katzenberger, supra, 178 Cal.App.4th at p. 1268, italics added.)
The court charged the jury with the instruction on reasonable doubt prior to the start of closing arguments. After defense counsel objected to the prosecutor's misstatement of this concept, the court told the jurors that they had already been instructed on the definition of reasonable doubt, that the attorneys' statements were not evidence, and that they would have a copy of the instruction on reasonable doubt during their deliberations. During her closing argument, defense counsel again read the instruction on reasonable doubt to the jury. In view of these circumstances, it is not reasonably probable that the jury applied the erroneous reasonable doubt standard articulated by the prosecutor.
Hinson contends that the prosecution's erroneous recitation of the reasonable doubt standard violated his right to due process under the Fourteenth Amendment because the court ratified the error. Hinson cites People v. Morales, supra, 25 Cal.4th 34 for the proposition that a court ratifies an erroneous statement of law by the prosecutor when it does nothing to disabuse the jury of the error. (Id. at p. 43.) He cites U.S. v. Perlaza (9th Cir. 2006) 439 F.3d 1149 (Perlaza)to argue that the court here ratified the prosecutor's misstatement of the reasonable doubt standard by overruling the defense objection to the statement and that the error was not harmless beyond a reasonable doubt. Neither case, however, holds that a court ratifies a prosecutor's erroneous statement of law merely by overruling a defense objection to the statement.
Further, Perlaza is easily distinguishable from the instant case. In Perlaza, the prosecutor argued, "[The presumption of innocence], when you go back in the room right behind you, is going to vanish when you start deliberating. And that's when the presumption of guilt is going to take over you .... [interrupted by objection.]" (Perlaza, supra, 439 F.3d at p. 1169.) The district court overruled the defense objection stating, "That's proper rebuttal. Go ahead." (Id. at p. 1170.) In holding that the prosecutor's error was not harmless beyond a reasonable doubt and reversing the defendants' convictions, the appellate court found that the district court ratified the prosecutor's error through the above quoted statement. (Id. at pp. 1172-1173.)
Perlaza is inapposite because in that case the court's comments in overruling the defense objection clearly approved of the prosecutor's misstatement of law. Here, the court did not make any comments at all when it overruled the defense's objection to the prosecutor's erroneous statement. And, a short time later, the court disabused the jury of the prosecutor's error when it reminded them that the statements of the attorneys were not evidence and referred them to the jury instructions for the correct definition of reasonable doubt. Accordingly, we reject Hinson's contention that the prosecutor's misstatement of law violated his right to due process under the Fourteenth Amendment.
Moreover, even if the prosecutor's comments rose to the level of constitutional error, we would find it harmless beyond a reasonable doubt. As discussed in the previous section, the evidence of Hinson's guilt was overwhelming. Additionally, soon after the prosecutor made the statement at issue, the court reminded the jury that the statements of counsel are not evidence and directed them to follow the definition of reasonable doubt contained in the jury instructions. Further, during her closing argument defense counsel read the correct definition of reasonable doubt to the jury and the jury's acquittal of Hinson on the burglary charge indicates that the jury was not confused about the appropriate standard to apply. Thus, even under the more stringent Chapman standard, the prosecution's misstatement of the reasonable doubt standard was harmless.
DISPOSITION
The judgment is affirmed.