Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF104977A
CANTIL-SAKAUYE, J.
A jury convicted defendant of carjacking (Pen. Code, § 215, subd. (a)) with personal use of a firearm (Pen. Code, § 12022.53, subd. (b)) and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). The trial court found true allegations that defendant had a prior serious felony under Penal Code sections 1170.12 and 667, subdivision (a) and had served a prison term (Pen. Code, § 667.5, subd. (b)). Sentenced to 26 years in prison, defendant appeals. He contends it was error (1) to instruct with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 376; (2) to impose five-year and one-year enhancements based on the same prior felony conviction; and (3) to record his sentence on the abstract as the upper term on count 1 when the court imposed the middle term. The Attorney General concedes the second and third errors. We follow other courts in finding no defect in CALCRIM No. 376.
We modify the judgment to strike the one-year prison term enhancement, direct the court to amend its minute order of December 18, 2007, to show imposition of the middle term, order the abstract corrected, and otherwise affirm.
FACTS
On June 21, 2007, Ramon Flores was driving his red truck to the Pep Boys store when he noticed a gray car with three occupants attempt to cut him off. When Flores entered the Pep Boys parking lot, the gray car followed and blocked Flores’s exit. Defendant got out of the car and a passenger moved into the driver’s seat. Defendant opened Flores’s truck door, pulled out a gun, and pointed it at Flores’s chest. Defendant said, “Get out. Don’t be stupid. Don’t be an idiot.” Defendant pulled Flores out of the car. Defendant got in the truck and left.
Megan Banks, who worked at Pep Boys, saw the carjacking. She gave Flores a phone to call the police.
By coincidence, several police officers were in the vicinity. An auto theft investigator was in a parking lot behind Pep Boys when he heard about the carjacking over the police radio. He pursued the suspect. Two other officers on patrol in the area also heard the police call. They saw the red truck at a stop light and followed it to an Auto Zone store. When defendant pulled into the Auto Zone parking lot, he got out of the truck and threw something into the bushes. The patrol officers took him into custody.
Meanwhile, Officer Kyle Mallatt responded to Pep Boys and interviewed Flores. The police took Flores and Banks to Auto Zone, where both identified defendant as the carjacker. Mallatt found the keys to the truck in the bushes. The investigator found the gun; it had four empty casings.
When the field evidence technician was taking photographs of and fingerprints from the truck, defendant told them not to waste their time. His fingerprints would be on the door and the steering wheel because he borrowed the truck with permission.
The parties stipulated that defendant had a felony conviction. They also stipulated no latent fingerprints were found on the gun or the casings. Palm prints found on the truck were not defendant’s.
DISCUSSION
I. CALCRIM No. 376
Defendant contends instruction with CALCRIM No. 376, on the possession of recently stolen property as evidence of a crime, violated his rights to due process, a fair trial, a jury trial and fundamental fairness under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. CALCRIM No. 376 has been upheld against challenges such as defendant makes in People v. O’Dell (2007) 153 Cal.App.4th 1569, 1573-1577; People v. Solorzano (2007) 153 Cal.App.4th 1026, 1033-1036; and People v. Anderson (2007) 152 Cal.App.4th 919, 946-950. We follow these cases.
The trial court instructed the jury as follows:
“If you conclude that the defendant knew he possessed the property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of carjacking 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.
“Let me read that sentence again.
“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.
“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.
“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.”
Defendant argues allowing only “slight” corroboration reduces the prosecution’s burden of proof to a level below beyond a reasonable doubt. Not so. “[T]he inference that possession of stolen property creates is permissive, not mandatory. The case law is settled that requiring only slight corroborating evidence in support of a permissive inference, like the one that possession of stolen property creates, neither changes the prosecution’s burden of proving every element of the offense nor otherwise violates the right of due process if, as here, the conclusion suggested is one that common sense and reason can justify ‘in light of the proven facts before the jury.’ [Citations.] [¶] The permissive inference that CALCRIM No. 376 authorizes if the jury finds slight supporting evidence is linguistically synonymous with, and constitutionally indistinguishable from, the permissive inference that CALJIC No. 215 authorizes if the jury finds slight corroborating evidence. CALJIC No. 2.15 has withstood repeated constitutional attack. [Citations.] Like CALJIC No. 2.15, CALCRIM No. 376 neither undermines the presumption of innocence nor violates due process.” (People v. Solorzano, supra, 153 Cal.App.4th at pp. 1035-1036.)
Defendant relies on federal cases which found a “slight evidence” instruction constitutionally defective. (See United States v. Gray (5th Cir. 1980) 626 F.2d 494, 500 and United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1255-1256.) He contends this court must follow federal constitutional law on this point rather than state law.
In the cases defendant cites, the instructions at issue permitted the jury to tie a defendant to a conspiracy with only slight evidence. CALCRIM No. 376, by contrast, expressly requires the jury to find “each fact essential” to defendant’s guilt “has been proved beyond a reasonable doubt.” CALCRIM No. 376 did not reduce the prosecution’s burden of proof.
Defendant next contends CALCRIM No. 376 permits a jury to draw an impermissible inference of guilt. He argues the possession of recently stolen property gives rise to an inference of guilt only where defendant has no reasonable explanation for the possession. He asserts CALCRIM No. 376 allows the jury to disregard even a believable explanation and convict based on possession and slight corroboration.
This argument was rejected in People v. O’Dell, supra, 153 Cal.App.4th at page 1576 and People v. Anderson, supra, 152 Cal.App.4th at pages 947-948. The O’Dell court found no constitutional requirement of an absence of an explanation before a jury may infer guilt from the possession of recently stolen property. (O’Dell, supra, at p. 1576.) “Moreover, contrary to appellant’s argument, allowing the jury to disbelieve a defendant’s version of events is not the same as permitting the jury to disregard his or her explanation. CALCRIM No. 376 does not suggest that the jury may ignore a defendant’s evidence. [Citation.] It is for the jury to decide whether to make an inference of guilt based upon the totality of the evidence presented. [Citation.]” (Ibid., original italics.) The Anderson court agreed: “The instructions in general tell the jury to consider all relevant evidence. CALCRIM No. 376 reiterates that the People must prove guilt beyond a reasonable doubt and contains no limitation on the evidence that may be considered in determining if the People have done so.” (Anderson, supra, at p. 948, original italics.)
II. Jones Error
Defendant contends the trial court erred in using his 1996 conviction for attempted murder to enhance his sentence both five years under Penal Code section 667, subdivision (a) and one year under Penal Code section 667.5, subdivision (b). The Attorney General properly concedes the error. In People v. Jones (1993) 5 Cal.4th 1142, 1153, the California Supreme Court held the same prior conviction cannot be used to impose enhancements under both Penal Code sections 667 and 667.5. The proper remedy is to strike the lesser enhancement. (People v. Jones, supra, at p. 1153.)
III. Correction of Abstract
Defendant contends the abstract of judgment incorrectly shows he was sentenced to the upper term on count 1, carjacking. The trial court sentenced him to the middle term of five years, doubled due to his strike prior. The Attorney General properly concedes the error. We order the abstract corrected to reflect the middle term on count 1.
DISPOSITION
The judgment is modified by striking the one-year prison term enhancement of defendant’s sentence for his prior offense of attempted murder under subdivision (b) of section 667.5. The trial court is directed to amend the abstract of judgment to reflect this modification and to amend both the December 18, 2007 minute order and the abstract of judgment to show the middle term was imposed on count 1, carjacking. In all other respects, the judgment is affirmed. The court shall send to the Department of Corrections and Rehabilitation a certified copy of the amended abstract of judgment.
We concur: SCOTLAND , P. J., SIMS , J.