Opinion
B160445.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. KENNETH EARL BERRY et al., Defendant and Appellant.
Joseph L. Ungvari, under appointment by the Court of Appeal, for Defendant and Appellant Kenneth Earl Berry. Law Offices of Leslie G. McMurray and Leslie G. McMurray, under appointment by the Court of Appeal, for Defendant and Appellant James Lewis Freeman. Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant Charles Edward Hall. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General and Marc A. Kohm, Deputy Attorney General for Plaintiff and Respondent.
A jury found defendants Kenneth Earl Berry, James Lewis Freeman and Charles Edward Hall guilty of second degree burglary of an automobile (Pen. Code, § 459[]), grand theft (§ 487 subd. (a)) and receiving stolen property (§ 496). Appellant Berry admitted he had served four prior prison terms (§ 667.5, subd. (b)). Appellant Freeman admitted he had served four prior prison terms (§ 667.5 subd. (b)) and suffered one prior strike (§ 667, subds. (b)-(i); 1170.2, subds. (a)-(d)).
Unless otherwise specified, all further references are to the Penal Code.
Probation was denied to all defendants and each defendant was sentenced on the receiving stolen property count (count III) with the other two counts being stayed pending completion of the sentences in count III. (§ 654) Appellant Berry was sentenced to the high term of three years plus three one-year prison enhancements for a total of six years. The court struck the additional prior prison term enhancement and stayed the sentences on the remaining two counts. (§ 654.) Appellant Freeman was sentenced to a total of four years; the midterm of two years doubled pursuant to the Three Strikes law. Appellant Hall was sentenced to the low term of 16 months in state prison.
All three defendants were also ordered to pay restitution fines (§ 1202.4, subds. (b) and (f)). $200 parole revocation fines (§ 1202.45) were imposed and suspended. Each defendant received credit for 176 days of custody credit.
The appeals are from the judgment of conviction.
We affirm the conviction of defendant Freeman and reverse those of defendants Berry and Hall.
FACTS
During the evening hours of February 28, 2002, or the early morning hours of March 1, 2002, the locked van of Pascual Medina (Medina) was forced open and work tools valued in excess of $2,000 were stolen.
On the morning of March 1st, at about 4:15 in the morning, all three defendants were found in two cars in a residential neighborhood with Mr. Medinas tools in the trunk of one of the cars. All three defendants were arrested.
Contentions
All three defendants contest the sufficiency of the evidence to support the convictions. Appellant Freeman also contends the prosecutor improperly struck minority jurors in violation of People .v Wheeler (1978) 22 Cal.3d 258 (Wheeler). Additionally, defendant Freeman alleges instructional error. Finally Freeman alleges he was improperly convicted and sentenced for receiving stolen property.
I. The Evidence was Sufficient to Support Freemans Convictions
A. The Standard of Review
In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Hayes (1990) 52 Cal.3d 577, 630-631; People v. Johnson (1980) 26 Cal.3d 557, 576.) The United States Supreme Court has held: "[T]his inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. [Citation.] Instead, the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia, (1979) 443 U.S. 307 318-319; People v. Hatch (2000) 22 Cal.4th 260, 272; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 33-34; People v. Alvarez (1996) 14 Cal.4th 155, 224-225; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, (1994), 31 F.3d 907, 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1329; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) "The California Supreme Court has held, `Reversal on this ground is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)" People v. Gaut (2002) 95 Cal.App.4th 1425, 1430
B. The Factual Background
The evidence discloses Medina, locked and parked his van in front of his home at about 7:00 p.m. on July 28, 2002. He went inside his home and was in bed by about 8:00 p.m. That night his van was broken into and his tools, which had a value of more than $2,000, were stolen.
At about 4:20 a.m. the next morning, a little more than eight hours after Medina retired for the evening, and less than one-half mile away from the scene of the theft, all three defendants and another man were in two different cars in front of a private residence where Mike Newell (Newell) and his wife were sleeping. Two of the men were observed to be moving items from a white car to a gray car and then making a racket as they repeatedly attempted to close the trunk of the gray car by slamming it shut.
Both cars, with their lights out, were then observed to drive about 80 to 100 yards up the street where they once again stopped. Once the cars stopped, three or maybe four men got out of the cars and started walking up and down the sidewalk, crossing the street to the other side and gazing. One of the men walked back to Newells house and looked up Newells driveway.
In the interim Newells wife had called the sheriffs department about suspicious activity with two black males loading and unloading items from one car to another. The deputy sheriff responding to the call, after an initial drive-by, stopped and started talking to the two people in the white car. One of the two was defendant Berry who was seated in the passenger seat. As the deputy was talking to the two males in the white car he looked to the rear of the white car where he observed two black males in a gray car lying down in the front seat. Defendant Freeman was the driver and defendant Hall was the passenger.
The driver of the white car, Moore, seems to have disappeared. He was not at the preliminary hearing and was not charged or named in the information.
When the deputy inspected the trunk of the white car he found a black nylon bag containing miscellaneous items such as wrenches, screwdrivers, hammers and a pair of bolt cutters. A search of the gray car revealed power tools belonging to Medina. The tools had been neatly organized in order to fit the large amount of equipment in the trunk. Even then, it was difficult to close the trunk lid.
C. The Evidence Reveals Only Freeman Exercised Sufficient Control Over the Stolen Goods Sufficient To Support the Convictions
Appellants argue the evidence is insufficient to have convicted them of either auto burglary, grand theft or receiving stolen property. In making this contention they argue their mere presence at the scene where stolen goods were located is insufficient to support their convictions. The People respond that the totality of the circumstances shows defendants are guilty of all three crimes.
Initially, based upon the evidence presented, no one can seriously contend that whoever broke into Medinas locked van and stole more than $2,000 worth of tools committed both an auto burglary (& sect; 459) and a grand theft (§ 487, subd. (a).) The real issue is whether possession of the stolen tools within eight hours after they were stolen is sufficient to justify the inference the possessor must also have been the thief.
The answer to that question is clear: Possession of recently stolen items is so highly incriminating that only slight additional evidence is needed to support a conviction for theft of the evidence. (See People v. McFarland (1962) 58 Cal.2d 748, 754; People v. Mendoza (2000) 24 Cal.4th 130, 176.) The corroborating evidence may be slight and by itself may not warrant in inference of guilt. (Ibid.)
Here, defendants Berry and Hall were passengers in the cars driven by Moore, the missing driver, and defendant Freeman. Two people were seen moving articles from the white car to the trunk of the gray car. When opened, the trunk of the gray car was crammed with the tools which had been stolen from Medinas van. The only possible inference is the stolen tools were moved from the white car to the gray car. Because Freeman was the driver of the gray car to which the tools were transferred, he was clearly in possession of the tools. The manner and time of the transfer of the tools was such a jury could reasonably infer Freeman knew the tools had been stolen and he was withholding the tools from the owner of the goods. (People v. Martin (1973) 9 Cal.3d 686, 695-696; People v. Wielograf (1980) 101 Cal.App.3d 488, 494.) Additionally, Freemans receipt of the tools in such close proximity to the place from which the tools were stolen and so close in time from the actual theft justified the jury in concluding he had been involved in the burglary and theft either as a direct participant or as an aider and abettor. (See People v. Cook, (1998) 61 Cal.App.4th 1364, 1368-1371.) The evidence was sufficient to support Freemans conviction of all three crimes.
However, as to defendants Berry and Hall, the evidence does not disclose they took any action with regard to the stolen items. The most the evidence reveals is that they were passengers in the cars. While defendant Hall was seen trying to hide from the deputy sheriff, that is not enough to warrant an inference of guilt. Appellant Berry did even less. He was a passenger in the white car and he, like Hall, was not seen to do anything with regard to the stolen tools. The car was not registered to Berry and he did not have keys to either the ignition or the trunk of the car. By misstating the evidence as to Berry the People argue defendants were all guilty based upon the totality of the evidence and, in particular that these events occurred at 4:30 in the morning.
In People v. Martin, supra, 9 Cal.3d 686 the court confronted a factual situation in which the defendant, Prizant, had received a stolen office machine which had been taken from the rear of his codefendants station wagon and placed in Prizants car. In addition to being charged with having received the one machine, the People also charged him with having received all of the other machines which were in the station wagon. In reversing the conviction as to the machines in the station wagon, the court stated, "The machines status as stolen property is not in dispute. Prizants possession of the machine is established by the fact that not only was it in the rear of his vehicle but it was placed there in his presence. The requisite knowledge that the machine was stolen may be established by the circumstances surrounding its receipt. (See People v. Jackson (1970) 14 Cal.App.3d 57; People v. McNeal (1963) 212 Cal.App.2d 731.)" (People v. Martin, supra, at pp. 695-696.)
However, as to the machines in the station wagon, the court stated, "The record, however, is completely devoid of any evidence in support of Prizants conviction on the count charging that he received the stolen machines located in the rear of Martins vehicle at the time of his arrest. Prizant clearly did not have possession of those machines nor was there any evidence that he had aided or abetted Martin in receiving, concealing, or withholding such machines. Mere access or proximity to stolen goods is not enough to infer possession. (People v. Zyduck (1969) 270 Cal.App.2d 334.) Thus, although Prizants knowledge that the machines in the rear of Martins car were stolen might be inferred, there is a total lack of proof as to the essential element of possession of those machines. The conviction on the count charging that Prizant received the stolen property which was found in Martins vehicle thus must be set aside. (See People v. Schroeder (1968) 264 Cal.App.2d 217.)" (People v. Martin, supra, at p. 696, fn. omitted.)
Here, the record is also silent as to the possession requirement of the tools. The mere proximity to the stolen tools was not sufficient to infer Hall or Berry possessed the tools. Therefore their convictions for receiving stolen property must be set aside. Without possession of recently stolen property, there is no evidence connecting defendants Berry and Hall to the auto burglary and grand theft. Therefore, those convictions must also be set aside.
II. There Was No Wheeler Violation in Jury Selection
Based upon People v. Wheeler, supra, 22 Cal.3d 258.
A. The Jury Selection Proceedings
Starting on June 20, 2002, and continuing to June 23, 2002, jury selection was conducted in this case. The court utilized the so-called six-pack selection procedure. During this selection procedure the prosecutor exercised peremptory challenges against six prospective jurors and the defense either singly or jointly exercised 10 peremptory challenges. Additionally several other jurors were excused for cause.
In this procedure 18 jurors are initially seated and questioned. When the challenges reduce the jurors in the box to 12, another six are called, questioned and challenged until the jurors in the box are again reduced to 12. Thereafter the same procedure is followed until a jury is selected.
On the second day of jury selection the prosecutor challenged Juror 3888. Counsel for Freeman then raised a Wheeler issue as to that juror stating Juror 3888 was "only the third Latino thats been on the jury. The first one is Juror Number 8 a while back that was kicked for cause. The second one the People kicked [juror 2127]. And Juror 3888 was a Latino." Counsel then stated he saw no reason why Juror 3888 should have been challenged and that was sufficient for a Wheeler motion.
The court responded by stating that although Juror 3888 appeared to a male Hispanic the record should also reflect the three defendants were all African-American and the jury panel had also contained several Filipino and Asian jurors. The court then stated, "I dont have a specific recollection of peremptories, but I dont believe a single challenge to one Hispanic juror is a prima facie case under these circumstances. But, I am certainly now cognizant, and will build on this issue should there be further challenges to any cognizable group, including I suppose Caucasians." The issue was not renewed.
B. The Applicable Law
The use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions. (People v. Wheeler, supra, 22 Cal.3d 258, 276-277; Batson v. Kentucky (1986) 476 U.S. 79, 89.) It is presumed that a prosecutor has exercised his peremptory challenges in a constitutional manner and the burden is on the defendant to make a prima facie showing of purposeful discrimination. Once that showing is made, the burden shifts to the prosecutor to show its absence. (People v. Alvarez (1996) 14 Cal.4th 155, 193.) To establish a prima facie case of impermissible group bias, a litigant must raise the issue in a timely fashion, make as complete a record as feasible, establish that the persons excluded are members of a cognizable class, and show a `"strong likelihood" of group rather than individual bias. (People v. Howard (1992) 1 Cal.4th 1132, 1153-1154; People v. Wheeler, supra, 22 Cal.3d at p. 280.)
In selecting a jury, each side is entitled to peremptorily challenge jurors. (Code Civ. Proc., §§ 225 subd. (b)(2); 231) "Peremptory challenges are permissible only if they are based on specific bias," namely "`a bias relating to the particular case on trial or the parties or witnesses thereto." (People v. Tapia (1994) 25 Cal.App.4th 984, 1013.) "`Although a defendant has no right to a "petit jury composed in whole or in part of persons of [the defendants] own race," Strauder [v. West Virginia (1880)] 100 U.S. [303,] 305, he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria. (Powers v. Ohio (1991) 499 U.S. 400, 404.)" (People v. Williams (1997) 16 Cal.4th 635, 663.)
"The trial courts determination that no prima facie showing of group bias has been made is subject to review to determine whether it is supported by substantial evidence. (People v. Alvarez, supra, 14 Cal.4th at pp. 196-197.) We examine the record of the voir dire and accord particular deference to the trial court as fact finder, because of its opportunity to observe the participants at first hand. (People v. Howard, supra, 1 Cal.4th at p. 1155.)" (People v. Jenkins (2000) 22 Cal.4th 900, 993-994, fn. omitted.)
"`There is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner. (People v. Clair (1992) 2 Cal.4th 629, 652.) We give great deference to the trial court in distinguishing bona fide reasons from sham excuses. (People v. Fuentes [(1991) 54 Cal.3d 707,] 714; People v. Wheeler, supra, 22 Cal.3d at p. 282.) Additionally, "[i]f the record `suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm." (People v. Howard, supra, 1 Cal.4th at p. 1155, quoting People v. Bittaker (1989) 48 Cal.3d 1046, 1092.) (People v. Turner (1994) 8 Cal.4th 137, 164-165; accord, People v. Crittenden (1994) 9 Cal.4th 83, 117.)" (People v. Irvin (1996) 46 Cal.App.4th 1340, 1350-1351.)
C. There was no Wheeler violation
Here, the trial court did not use the procedure suggested in People v. Davenport (1995) 11 Cal.4th 1171 and People v. Turner, supra, 8 Cal.3d at p. 167 of having the prosecutor state the reasons for the challenges even though the court did not believe a prima facie case had been made. Although that might have made a more complete record, there is no requirement that the trial court request the prosecutor to state his or her reasons prior to the trial courts making a determination that there has been a prima facie case of discriminatory challenges. Rather, it is the burden of the person making the challenges to make a complete record as possible in the trial court. See People v. Wheeler, supra, 22 Cal.3d at p. 280. Here, defendant did not make his record. Rather than pointing out to the trial court why he felt the prosecutors challenges were improper, he has attempted to convince this court why the challenges were improper. In the trial court, he merely argued that the prosecutor was using his challenges to exclude two Hispanic jurors. However, raising the hue and cry of Wheeler and pointing to challenges made against a specific group, without more, is not sufficient. "No court has held that merely alluding to the fact a party has used its peremptory challenges to exclude members of a particular group, is sufficient to make a prima facie showing of group bias." (People v. Trevino (1997) 55 Cal.App.4th 396, 406.) There was no Wheeler error.
III. The Court Did Not Err In Instructing Pursuant to CALJIC No. 1.00
In relevant part CALJIC No. 1.00 provides, "You must not be influenced by pity for or prejudice against a defendant because he has been arrested for this offense. You must not be biased against the defendant because he has been arrested for this offense, charged with a crime, or brought to trial. None of these circumstances is evidence of guilt, and you must not infer or assume from any or all of them that a defendant is more likely to be guilty than not guilty." (Emphasis added.)
Appellant argues the instruction, by its reference to "more likely guilty than not guilty" lessens the burden of proof for the prosecution and instead substitutes a preponderance of the evidence standard in violation of the due process clause of the United States Constitution. (See In re Winship (1970) 397 U.S. 358, 364.) A contention substantially similar to this one was recently rejected in People v. Snow (2003) 30 Cal.4th 43, 97 where the court was faced with and rejected a contention that the use of the word "innocence" in several of the CALJIC instructions conveyed to the jury the idea that it was the defendants burden to prove his innocence rather than the prosecutors burden to prove him guilty. (See also People v. Wade (1995) 39 Cal.App.4th 1487, 1491-1494.)
Here, as in Snow, a fair reading of all of the instructions makes it clear that the burden was on the prosecution to prove guilt. Thus CALJIC No. 2.01 instructed the jury that if there were two reasonable interpretations of circumstantial evidence one of which points to guilt and the other to the defendants innocence the jury must adopt the interpretation pointing to the defendants innocence. The court also instructed the jury pursuant to CALJIC No. 2.15 that even though there might be unjoined perpetrators of the same crime who were not on trial, the jurys sole duty was "to decide whether the People have proved the guilt of the defendants on trial." On lesser included offenses the jury was instructed, pursuant to CALJIC No. 17.10, that if it had a reasonable doubt as to the guilt of the defendant as to the greater offense it could convict the defendant of the lesser offense only if it was convinced beyond a reasonable doubt the defendant was guilty of that lesser offense. The court also instructed the jury pursuant to CALJIC No. 2.61 that the defendant was not required to take the stand and could rely "upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him." Finally the jury was instructed on the Peoples obligation to prove the guilt of the defendant beyond a reasonable doubt pursuant to CALJIC No. 2.90.
That instruction is compelled by the due process clause and its requirement that guilt be proven beyond a reasonable doubt. (See People v. Hatchett (1944) 63 Cal.App.2d 144, 155; People v. Rayol (1944) 65 Cal.App.2d 462.)
"In light of the numerous instructions directing the jury to convict only on proof beyond a reasonable doubt of guilt, no reasonable likelihood the jury would have understood the challenged instructions otherwise exists. [Citation.] Taking all the instructions together, as required, the jurors would instead have understood that while the issue before them is defendants guilt or innocence, a conviction may be returned only if the prosecution has proved defendants guilt beyond a reasonable doubt." (People v. Snow, supra, 30 Cal.4th at p. 97, fn. omitted.)
There was no error in instructing pursuant to CALJIC No. 1.00.
IV. The Giving of CALJIC No. 2.21.2 Was Proper
Appellant Freeman contends the court erred in instructing the jury pursuant to CALJIC No. 2.21.2 which provides, "A witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars."
Even though no objection was raised in the trial court and even though counsel for Freeman and Berry both questioned the veracity of Mr. Medina in front of the judge just before Mr. Medina took the stand and later while arguing to the jury, Freeman now contends the jury should not have been instructed in accordance with CALJIC 2.21.2 because it somehow implied to the jury that his not guilty plea was false and lowered the prosecutions burden by interjecting the probability standard into what is a reasonable doubt situation. However, Freeman reads too much into the instruction. First of all the instruction does not use the term "parties" which Freeman has tried to read into the instruction. Secondly, the instruction does not require there be a conflict between two witnesses. CALJIC Nos. 2.21.1 and 2.22 cover those situations. CALJIC No. 2.21.2 covers the situation where the jury believes a witness might be lying. Rarely, if ever, and then usually on television shows or the movies, does a witness break down on the stand and admit he or she has lied. The facts of the lie usually have to be extracted from reluctant witnesses by the use of cross-examination and comparisons to other witnesses or the evidence in the case. Even then, exposing of the lie is usually by inference and comparison as opposed to an admission of untruthfulness. CALJIC No. 2.21.2 covers the situation where the lie has been exposed and the jury is confronted with the question of what to do with that witnesss testimony. There is no mention of the defendant or his plea. Of course, if the defendant is ultimately found guilty, then the conclusion that the not guilty plea was not true is inevitable. However, that is not because of CALJIC 2.21.2.
To the extent the instruction indicates the jury could use a probability standard in determining whether to accept some of the victims testimony, it does not conflict with or lower the beyond a reasonable doubt standard imposed upon the prosecution. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1045.) "". . . CALJIC No. 2.21. does nothing more than explain to a jury one of the tests they may use in resolving a credibility dispute." [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 429; See also People v. Foster (1995) 34 Cal.App.4th 766, 772-773). "When CALJIC No. 2.21.2 is considered in context with CALJIC Nos. 1.01 (consider instructions as a whole) and 2.90 (burden of proof), `the jury was adequately told to apply CALJIC No. 2.21.2 "only as part of the process of determining whether the prosecution had met its fundamental burden of proving [defendants] guilt beyond a reasonable doubt." [Citation.]" (People v. Maury, supra, 30 Cal.4th at p. 429.)
There was no error in instructing the jury pursuant to CALJIC 2.21.2.
V. Defendant Freeman was Improperly Convicted of Both Grand Theft and Receiving Stolen Property
Appellant alleges and the People concede Freeman could not be convicted of both grand theft and receiving stolen property. (& sect; 496 subd. (a)[]; People v. Allen (1999) 21 Cal.4th 846, 861. Thus, the conviction for receiving stolen property must be reversed. However, in sentencing Freeman, the trial court sentenced him on the receiving count and stayed the burglary and grand theft counts. Because Freeman cannot be sentenced for a crime for which he could not legally commit, the judgment must be reversed and the case remanded for resentencing.
In relevant part section 496 subd. (a) provides, "A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property."
DISPOSITION
The convictions of defendants Berry and Hall are reversed.
The conviction of defendant Freeman for a violation of section 496 is reversed. The trial judge is ordered to resentence Freeman for one of the other two crimes of which he stands convicted.
We concur: JOHNSON, Acting P. J. WOODS, J.