Opinion
E051244 Super.Ct.No. RIF154150
10-14-2011
THE PEOPLE, Plaintiff and Respondent, v. DANNIE JOSE CALLANDRET, Defendant and Appellant.
Raphael M. Goldman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, James H. Flaherty III and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed.
Raphael M. Goldman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, James H. Flaherty III and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Dannie Callandret, of receiving stolen property (Pen. Code, § 496, subd. (a)). In bifurcated proceedings, the trial court found true an allegation that defendant had suffered a strike prior. Defendant was sentenced to prison for two years, eight months and appeals, claiming the trial court misinstructed the jury, requiring reversal of his conviction. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
The victim's sister testified that during the night of December 24, 2009, she saw from her upstairs bedroom window defendant, wearing a plaid flannel jacket and black beanie, standing next to the driver's side door of her stepfather's car, which was parked in the driveway of her Moreno Valley home. Defendant then walked away. Her stepfather was unable to recall if he had locked the car and when both went outside to check, the driver's door was ajar. The victim testified that he noticed that night that his Marine Corps. bag, which had his name and address on the outside and his name, rank and phone number on the lock was missing from his mother's van, which was parked near the stepfather's car. The bag contained, inter alia, dresses, clothing and accessories belonging to the victim's wife and daughter. The victim's sister called the police and reported defendant's presence and the theft. A responding police officer testified that the victim's sister told her that she saw defendant close the door of her stepfather's car, then get on a bike and ride off.
The victim's sister testified that on the morning of December 25, 2009, she heard her mother's van arrive in her driveway and the occupants get out and go inside her house. Some time later, she heard the door of the van open and she looked out her bedroom window to see defendant, with the top half of his body inside the van, rummaging around inside it. Defendant was wearing the same plaid flannel jacket and black beanie he had worn the night before. Defendant looked up at the sister, saw that she was looking at him and "froze." She ran down the stairs and out the front door, just in time to see him riding away on a bicycle in the same direction he had left the night before. She followed him in her brother's car and watched as he rode into the driveway of a house not far from hers and put the bike down, then go through the gate on the side yard of the house. As defendant had put the bike down on the driveway, she had clearly seen her brother's Marine Corps. bag on defendant's shoulder. Again, she called the police. An hour later, the police arrived at her home, and she gave them the address of the home where she had seen defendant put down his bike and go through the gate. A short time later, they returned with the victim's bag. The police then took her to where defendant was standing in the street and she identified him as the man she had seen on both occasions. The plaid flannel jacket was draped over his shoulders during the show up.
The police officer who went to the home whose address the sister had given him testified that he gave the owner of that home the description of defendant the sister had supplied and the owner responded that that was defendant, her godson, who lived in the garage of her home. In the garage, the officer found a plaid flannel jacket that was similar to the one the victim's sister had described to him. In plain view inside a hall closet in the house, 10-12 feet from the door to the garage, was the victim's empty bag. The officer testified that he did not recall that the sister had not told him that she saw a bag on defendant.
Defendant's godmother testified that defendant primarily entered her garage through the house and he used the bathrooms and kitchen in her house and had access to its closets. He kept his things in the garage.
The sister testified that, after December 25, defendant frequently rode by her house on his bike. Defendant asked to speak to her. He mentioned the dresses that had been in the bag. She told him that "they' wanted the clothes that had been in the victim's bag. Defendant told her that he wanted to reimburse "them" for the stolen items in the hopes that the charge against him would be dropped. She said she would have to ask her brother. A week later, defendant knocked on the sister's door. Another sibling, who lived with the sister, answered it and the sister heard defendant say, "Ok, thank you" before leaving. He returned an hour later. By then, the sibling was mad. Defendant told the sibling that he had nothing to do with it and it wasn't his fault, but then he said he'd pay for it. He told the sister to figure out how much the loss was. He later returned and wanted to know if she had come up with a figure and she said she would call him with it. She called him three times reaching him on the last try. He told her to bring the piece of paper with the figure on it by his home and she had a neighbor drive her there and wait for her in the street while she delivered it to him. Defendant was entertaining guests at the time and she greeted them and shook their hands. Thereafter, defendant called her several times and she finally stopped answering his calls.
Defendant zeros in on this statement, ignoring all the others he made, and claims that was a denial by him of involvement in the theft of the bag.
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At trial, the sister testified that one to two weeks before the crime, she saw defendant, on his bike, wearing the same plaid flannel jacket, staring at her house from across the street.
ISSUES AND DISCUSSION
1. Instruction on Dominion and Control
As to the charged offense of receiving stolen property, the jury was given CALJIC No. 14.65, which provides, in pertinent part, "Every person who conceals or withholds, or aids in concealing or withholding property from the owner, knowing the property to have been stolen, is guilty of the crime . . . . [¶] In order to prove this crime, each of the following elements must be proved: One, a person concealed or withheld or aided in concealing or withholding property from the owner, which had been stolen; and, two, that person actually knew the property was stolen at the time he withheld or concealed or aided in concealing or withholding from the owner the property."
Defendant here contends that an element of receiving stolen property was that he had possession of the stolen property, which required dominion and control—mere access or proximity to it was insufficient. He asserts that the trial court had a sua sponte duty to instruct that he must have had dominion and control over the bag and that mere access or proximity to it was insufficient and the trial court's failure to so instruct requires reversal of his conviction. We disagree.
First, under the instructions given, the jury was required to find that defendant had possession of the bag. Since this was not an aiding and abetting case, defendant was required, under these instructions, to withhold or conceal the bag. Either of these implies possession. One cannot withhold or conceal a bag that is not in his/her possession. There was no evidence adduced at trial that anyone other than defendant had possession of the bag. The prosecution's theory was that defendant stole the bag, based, in large part, on the testimony of the victim's sister. The defense told the jurors that they were being asked by the prosecution to determine that defendant took the bag in order to conclude that he had it and put it in the hall closet, and, therefore, was guilty. In light of these circumstances, there was no need to define for the jury what possession meant.
The holding in People v. Gatlin (1989) 209 Cal.App.3d 31, cited by defendant, does not compel a contrary conclusion. Therein, where the stolen goods were found in a car occupied by defendant, along with others, the instruction required the jury to find in addition to what the instant jury was required to find, that defendant had possession that was either actual (knowingly had direct physical control) or constructive (knowingly had the right of control directly or through another person). (Id. at p. 44.) The trial court denied defendant's request for an instruction that possession of stolen goods is not shown by mere access or proximity to stolen goods; dominion and control must be shown as duplicative of the instructions given. (Id. at p. 45.) This is not authority for the proposition that a jury should be instructed in every case that defendant had to have dominion and control over the bag, and mere access or proximity to it is insufficient.
Even if the trial court erred in not giving this instruction, and it can be deemed to be an instruction as to an element of the offense and not a pinpoint directive, reversal would not be appropriate because we conclude beyond a reasonable doubt that the verdict would have been the same even if it had been given. (Neder v. United States (527 U.S. 1, 4, 7.) We so conclude due to the overwhelming nature of the evidence against defendant, as outlined above.
2. Instruction on Consciousness of Possession
Defendant here asserts that the trial court had a sua sponte duty to instruct that he knew he was in possession of the bag and the failure to so instruct requires reversal. Again, we disagree.
The jury was instructed that defendant had to "intentionally do[] that which the law declares to be crime . . . ." As already stated, the instruction on possession of stolen property required defendant to have concealed or withheld the bag from the owner, knowing that it was stolen. Putting these two instructions together, the jury had to find that defendant intentionally concealed or withheld the bag. Defendant cannot have intentionally withheld or concealed the bag without consciously possessing it. Therefore, there was no need to give this instruction. Moreover, unlike in People v. Speaks (1981) 120 Cal.App.3d 36, 39 (accord, People v. Gory (1946) 28 Cal.2d 450, 457), the case defendant cites in support of his position, there was no evidence here that defendant was in possession of the bag without knowing that he had it. As the parties argued to the jury, either defendant took the bag and therefore consciously possessed it, as the prosecution maintained, or defendant did not, as the defense maintained, and, therefore, was not guilty, despite the presence of the bag in the closet near the garage where he stayed.
As with defendant's other assignment of instructional error, even if this instruction addressed an element of the offense, and the failure to give it was improper, reversal would not be appropriate for the reasons expressed in relation to the other issue.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
RICHLI
J.
MILLER
J.