Opinion
2d Crim. No. B189699
5-10-2007
THE PEOPLE, Plaintiff and Respondent, v. EDDIE HENRY HUNTER, Defendant and Appellant.
Susan B. Lascher, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury convicted Eddie Henry Hunter of carjacking (Pen. Code, § 215), two counts of second degree robbery (§ 211), two counts of attempted second degree robbery (§§ 664/211), false imprisonment (§ 236) and first degree residential robbery (§ 211).
On appeal, Hunter contends there is no substantial evidence to support his conviction of first degree residential robbery. Hunter also contends CALCRIM No. 376 impermissibly allows the jury to draw an inference that the defendant is guilty of carjacking solely from his possession of the stolen car. We affirm.
FACTS
Carjacking
On April 24, 2003, Michael Lampa walked toward his car in a parking lot of a Dennys restaurant. Lampas friend, Fernando Gonzales, was with him at about 11:30 p.m. Lampa had his keys in his hand. He heard someone behind him say, "Give me your keys." Lampa turned around and saw Hunter pointing a gun at him. Lampa handed Hunter the keys. Hunter told Lampa and Gonzales to run away. They did, and Hunter drove off with the car.
Lampa failed to identify Hunter in a photographic lineup. Later, however, Lampa identified Hunter in a live lineup. Lampa also identified Hunter at the preliminary hearing. Gonzales identified Hunter at a photographic lineup, a live lineup and at trial.
Second Degree Robbery and Attempted Second Degree Robbery
The next morning, at about 10:42 a.m., Hunter robbed the Bank of America in Simi Valley. He threatened a number of bank employees with a handgun. During the robbery, a customer entered the bank and saw a man with a gun jump over a counter. The customer left the bank and called the police. The customer saw a car outside the bank door with a driver waiting in it. The customer assumed it was a getaway car, and described it for the 911 operator. Shortly thereafter, Hunter left the bank with a bag containing $55,000. He got into the waiting car and left.
A police officer responding to the bank robbery call saw the car. She activated her lights and siren. After a brief chase, the car slowed down, and Hunter and the driver jumped out. They ran away on foot. The car crashed into a mailbox. The car belonged to Lampa. The police found no fingerprints linking the car to Hunter.
False Imprisonment and First Degree Robbery
Hunter entered Myrna Raponis home through an open patio door at about 11:00 a.m. on the day of the bank robbery. When Raponi saw Hunter, she was terrified. She offered him money to leave. Hunter rushed at Raponi and hit her in the jaw and nose. She started bleeding profusely. He told her to close all the window blinds and curtains. He said the police were after him. Hunter stayed in Raponis home until about 6:00 p.m. They stayed most of the time in the bedroom. At one point, they went to the kitchen to get something to eat. Hunter picked up a knife and took it back with them to the bedroom. At about 1:30 p.m., Raponi could hear the police outside. She did not want anyone to enter the house because she was afraid of what might happen.
Hunter began to talk about taking a bus. Raponi offered him $ 20 to give him an incentive to leave. After Raponi gave him $ 20, he asked for another $10. She gave it to him. If Hunter had not been in Raponis house and used force against her, she would not have given him the $30. Hunter asked for some of Raponis husbands clothes so he could disguise himself. Raponi gave Hunter a hat and sweater. She would not have done so, had he not been in her house and hit her.
The police spotted Hunter in the neighborhood near Raponis house at about 6:00 p.m. The police arrested him at about 7:30 p.m.
The police found $55,000 in a bag outside the bank. A red dye pack had exploded inside the bag. Security cameras inside the bank showed Hunter as the robber.
DISCUSSION
I
Hunter contends his conviction for the robbery of Myrna Raponi is not supported by substantial evidence.
In reviewing the sufficiency of the evidence we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Johnson, supra, at p. 578.)
Robbery requires the taking of personal property from the possession of another "against his . . . will, . . . accomplished by means of force or fear." (§ 211.) Hunter argues there is no substantial evidence he took money or clothing from Raponi against her will. Instead, Hunter claims it was Raponis idea to offer him money and clothing. But Hunter broke into Raponis home, assaulted her and held her against her will. Raponi testified she would not have given Hunter money and clothing had he not entered into her home and assaulted her. She simply gave him money and clothing to end her ordeal. Even though it was Raponi who initiated the offer of money, a reasonable juror could conclude that the offer was not voluntary under the circumstances. In fact, no reasonable juror could conclude otherwise. That Raponi may have felt sorry for Hunter does not make the conclusion any less reasonable.
II
Hunter contends CALCRIM No. 376 improperly allowed the jury to infer guilt on the carjacking charge.
The court instructed the jury with CALCRIM No. 376 as follows:
"If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of carjacking and robbery based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed carjacking and robbery.
"The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of carjacking and robbery.
"Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
Hunter claims that CALJIC No. 2.15, the standard instruction that proceeded CALCRIM No. 376, is the proper statement of the law. He notes that CALJIC No. 2.15 has a long history of approval by the courts. (Citing People v. Barker (2001) 91 Cal.App.4th 1166, 1173.) CALJIC No. 2.15 provides in part: "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 crimes of carjacking and robbery. 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."
Hunter points out that the old CALJIC No. 2.15 instruction stated possession of stolen property is not by itself sufficient to permit an inference of guilt; whereas, the new CALCRIM No. 376 instruction states possession of stolen property is not by itself sufficient for a conviction. Hunter concludes the new CALCRIM instruction is defective in that it does not preclude an inference of guilt solely from the fact of possession.
But even if a juror were inclined to draw an inference of guilt solely from the fact of possession, the new CALCRIM instruction would compel the juror not to convict based on that inference. Under either instruction, a jury will not find the defendant guilty of carjacking based solely on his possession of recently stolen property. No reasonable juror could be misled by CALCRIM No. 376. If anything, an instruction not to convict is more favorable to the defense than an instruction not to draw an inference of guilt.
In any event, any error is harmless beyond a reasonable doubt. Hunter was not convicted of carjacking because he was found in possession of the stolen car. Instead, he was convicted of carjacking because Lampa and Gonzales identified him as the thief. It is true Lampa did not identify Hunter in a photographic lineup. But Lampa identified Hunter when he saw him in person. In addition, Gonzales identified Hunter both in a photographic lineup and in person. The evidence that Hunter took the car is simply overwhelming.
The judgment is affirmed.
We concur:
YEGAN, J.
COFFEE, J. --------------- Notes: All statutory references are to the Penal Code.