Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07HF1200, Carla Singer and Richard F. Toohey, Judges.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, ACTING P. J.
A jury convicted defendant William John Crockett of receiving stolen property (Pen. Code, § 496; all statutory citations to this code unless noted). He contends the trial court erroneously denied his motion to suppress evidence, because police officers detained him in violation of his Fourth Amendment rights. He also challenges the sufficiency of the evidence to support his conviction, and complains the trial court abused its discretion in declining to strike a prior felony conviction for sentencing purposes under the Three Strikes law. Finally, defendant contends his sentence of 25 years to life constituted cruel and unusual punishment under the state and federal Constitutions. We conclude the evidence is insufficient to establish defendant, a passenger in an acquaintance’s vehicle, had constructive possession of a laptop computer or other stolen goods in the car, nor does the evidence establish defendant knew the $120 he received from the acquaintance was stolen. Because the evidence is insufficient to support the judgment, we need not reach defendant’s other contentions. The judgment is reversed.
I
Facts and Procedural Background
Calvin Odell left his garage door open in Huntington Beach when he went to bed around 9:30 on the evening of June 11, 2007. He kept his laptop computer, cell phone and charger about 12 feet inside the house from the garage. He placed $420 in cash next to these items, in denominations that included three $100 bills, one $50 bill, three $20 bills, and one $10 bill.
Around 5:20 the next morning, Newport Beach police officers made a traffic stop of a Ford Taurus driven by Long Beach denizen Aaron King. Defendant, King’s neighbor, sat in the front passenger seat. Officers found Odell’s computer on the back seat and his cell phone and charger in the glove compartment. King’s pocket contained three $100 bills, a dime and a penny. Defendant’s pocket held a $100 bill and a $20 bill.
King also stole a mountain bike from Odell, which was found in his trunk, but Odell did not mention the bike as an item of stolen property.
Just before trial, King pleaded guilty to burglary and receiving stolen property. Called as a witness by the defense, King, who had suffered several theft-related priors, testified he committed the burglary and theft without defendant’s knowledge sometime after 11:00 p.m. on June 11. King explained that after smoking methamphetamine at his home he had headed south from Long Beach “cruising, ” in his words, “to come up” (italics added), which he explained was slang that meant looking to “[c]ome up with merchandise; purses, wallets, anything.” After spotting Odell’s open garage and committing the burglary, King “drove around” awhile before returning home between 3:00 and 4:00 a.m. He smoked more methamphetamine while he waited in his car for defendant to come down from his apartment. King explained he had met defendant three days earlier and asked defendant to help him with a landscaping job at King’s father’s Brea residence scheduled for June 12. He told defendant they would leave at 4:30 a.m. to avoid the heat. The men met as planned and left for Brea. High on methamphetamine, King missed the 22 Freeway interchange and became lost before being stopped by police officers in Newport Beach.
King testified he did not tell defendant about the theft or that he had placed the stolen property in the car. King gave defendant $120 “when we were heading down 7th Street [in Long Beach] towards [King’s] dad’s pad.” King understood defendant wanted an advance because defendant mentioned he had no money on hand for cigarettes or other purchases. King gave him the money because “[h]e was going to do a couple days’ worth of work for me....” King provided officers with conflicting stories about his possession of the computer.
Following a trial in January 2008, the jury acquitted defendant of burglarizing Odell’s residence, but convicted him of receiving stolen property. Defendant waived his right to jury trial concerning his prior convictions and the trial court found to be true allegations he suffered prior convictions for residential burglary in 1991 and second degree robbery in 1992, and that defendant had served two prior prison terms. The court imposed a 25-year-to-life term under the Three Strikes law.
II
Discussion
The Evidence Is Insufficient to Support Defendant’s Conviction for Receiving Stolen Property
Defendant challenges the sufficiency of the evidence to support his conviction for receiving stolen property. (§ 496.) He contends the jury’s acquittal on the burglary charge demonstrated “King performed the burglary without [defendant’s] knowledge. There was no evidence... that King informed [defendant] about the burglary, and in fact the only evidence that was received on the issue was just the opposite....” He also asserts he did not actually or constructively possess the computer or the cell phone, and his mere presence alone cannot support his conviction. As for the money found in his possession, defendant notes, “Odell was absolutely explicit in identifying the exact denomination of the bills taken from his house, ” the bills recovered from King and defendant did not match, and therefore the “only logical explanation for this discrepancy is that the money in the possession of King and [defendant] was not the same money....”
The due process clause of the Fourteenth Amendment guarantees “no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof - defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” (Jackson v. Virginia (1979) 443 U.S. 307, 316.) On appeal we consider whether the jury’s conclusion is supported by substantial evidence, “not whether guilt is established beyond a reasonable doubt.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) Sufficient evidence is shown when the evidence is substantial, “which has been defined as evidence that ‘reasonably inspires confidence and is of “solid value.”’” (People v. Morris (1988) 46 Cal.3d 1, 19, disapproved on another ground in People v. Sassounian (1988) 9 Cal.4th 535, 545, fn. 6.) A reviewing court must accept logical inferences the jury might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) “A reasonable inference, however, ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶]... A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.’ [Citations.]” (Morris, at p. 21.)
“‘[P]roof of the crime of receiving stolen property requires establishing that the property in question was stolen, that the defendant was in possession of it, and that the defendant knew the property to be stolen.’” (People v. Reyes (1997) 52 Cal.App.4th 975, 984 (Reyes).) The element of possession is satisfied if a defendant exercised actual or constructive possession of the contraband. Actual possession is established when a defendant exercises direct physical dominion and control over an item, however briefly. (People v. Austin (1994) 23 Cal.App.4th 1596, 1608-1609, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 861, 867.) “Constructive possession does not require direct physical control over the item ‘but does require that a person knowingly exercise control or right to control a thing, either directly or through another person or persons.’” (Id. at p. 1609.)
Section 496, subdivision (a), provides, “Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year....”
The information charged defendant with unlawfully receiving the stolen laptop, cell phone, and cash taken in the burglary of Odell’s residence. No substantial evidence however, showed that defendant actually or constructively possessed either the laptop computer or the cell phone. Assuming defendant had seen the laptop in the backseat of King’s car, no evidence demonstrated defendant had the right to exercise control over the item. (See People v. Zyduck (1969) 270 Cal.App.2d 334, 336 [evidence insufficient to infer defendant as a passenger possessed stolen chain saw found in rear seat of car]; see also People v. Myles (1975) 50 Cal.App.3d 423, 429 [“Mere access or proximity to stolen goods is not sufficient to infer possession; dominion and control must be shown”].) As for the cell phone, no evidence showed that defendant knew it was in the glove box or that he could exercise control over it. Nor is there evidence that defendant could exercise any control over the money in King’s possession.
Investigating officers found defendant in possession of $120, money King testified he earlier had stolen in the burglary of Odell’s residence. The officers also found $300.11 in King’s possession, for a total of $420.11. The jury therefore could believe this aspect of King’s testimony and reasonably conclude the cash found in defendant’s possession was money stolen in the Odell burglary, albeit in different denominations. The crucial issue is whether defendant knew the money was stolen.
Contrary to defendant’s position, the jury was not bound by Odell’s testimony concerning the denominations of the money. King’s testimony the cash he gave defendant came from the Odell burglary supports the inference Odell mistakenly recalled the precise denominations of the stolen funds.
Mere possession of recently stolen property is insufficient to establish guilt, absent evidence corroborating the elements of the crime, including knowledge. (People v. Anderson (2007) 152 Cal.App.4th 919, 948; see Reyes, supra, 52 Cal.App.4th at pp. 984-985 [“possession of recently stolen property alone is insufficient to permit the inference defendant knew the property was stolen”].) Consequently, the trial court instructed the jury with Judicial Council of California Criminal Jury Instructions CALCRIM No. 376, which provides in pertinent part: “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 burglary or receiving stolen property based on those facts alone. However, if you also find the supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed burglary or receiving stolen property. [¶] 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 burglary or receiving stolen property.” The instruction does not create a presumption of guilt from possession alone. (Anderson, at p. 948.) Rather, the instruction requires the existence of supporting evidence to infer defendant knew the cash in his pocket was stolen property.
In evaluating whether substantial evidence supports the requisite finding of knowledge, we begin by considering the rational inferences the jury could draw from King’s testimony. It is apparent the jury rejected King’s testimony that defendant did not know the money King gave him was stolen. The jury could reject King as a credible witness, but could not logically conclude from King’s lack of credibility that defendant knew the cash he held in his pocket had been stolen. “The rejection of a witness’s testimony by the trier of fact has only the effect of removing that testimony from the evidentiary mix. Without more, the disregard or disbelief of the testimony of a witness is not affirmative evidence of a contrary conclusion. [Citations.] In other words, the fact that the trier of fact does not credit a witness’s testimony does not entitle it to adopt an opposite version of the facts which otherwise lacks evidentiary support.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1205.)
To illustrate the point by analogy, if King had testified, “No elephants live in my backyard, ” his general lack of credibility would not constitute affirmative evidence that an elephant does live in his backyard.
Factors supporting an inference of knowledge and commonly considered when a defendant is in possession of recently stolen goods include “acquisition for grossly inadequate price, time and manner of acquisition, acquisition from a person of questionable character, attempts to avoid identification, concealment of property, evasive or false answers to questions concerning ownership, denial of possession, and resale at inadequate price.” (2 Witkin, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 82, pp. 111-112, and cases cited therein.) Many of these factors are inapplicable here. For example, acquiring or reselling the property at an inadequate price does not apply to generic legal currency. Nor is there evidence defendant attempted to avoid identification or conceal the currency. There also is no evidence defendant gave evasive or false answers to questions about the currency or that he denied possessing the money. (See People v. Peters (1982) 128 Cal.App.3d 75, 85 [illogical and therefore error to suggest the existence of false or contradictory statements where defendant gave no explanatory statement of any kind].)
As to the time and manner of possession, the Attorney General argues that defendant’s apprehension in King’s car with the stolen laptop, cell phone and money, coupled with King’s admission he committed the burglary, supports a reasonable inference “that even if [defendant] did not participate in the burglary, he knew about the burglary and knew what items had been stolen.” We perceive several problems with this analysis, however. Attempting to furnish the requisite supporting evidence of knowledge by showing that defendant was seated in a car near other stolen items only succeeds if one assumes defendant knew the other property was stolen. But the absence of evidence defendant exercised control over the laptop or cell phone undermines rather than advances the notion defendant knew either one had been stolen. And, as noted above, neither we nor the jury may use King’s admission that he committed the burglary as affirmative evidence defendant knew what items had been stolen. We do not draw inferences in a vacuum, but from evidence that must be reasonable, credible, and of solid value. (Morris, supra, 46 Cal.3d at p. 19.)
Another factor supporting an inference of knowledge in appropriate circumstances is whether the defendant acquired the property from a person of dubious character. King’s questionable character would amply satisfy this factor if defendant knew of it, but no evidence shows King disclosed his past criminal endeavors to defendant. (Compare People v. Rossi (1936) 15 Cal.App.2d 180, 184 [knowledge requirement satisfied where two exconvicts, “known to appellant as such, ” sold him jewelry and silverware].) Here, King testified he only met defendant days before their arrest, and the prosecutor did not ask whether King made defendant aware of his past. Thus, no inference can be drawn to find knowledge under this factor.
We are left with the fact that defendant was arrested in a vehicle that the driver admitted contained property the driver had stolen, including cash - a portion of which the driver gave defendant. But unlike money in large quantities or that might be marked with dye after a bank heist, for example, nothing about the amount or condition of the funds King gave defendant suggested defendant knew or should have known the money had been stolen. True, the hour was early and the cash had been burgled from a Huntington Beach home that same morning or, at most, late the previous evening. (See People v. Anderson (1989) 210 Cal.App.3d 414, 421 [even four and one-half months later, stolen items may be considered “recently” stolen].) Measured in hours, the stolen money could not have been, in colloquial terms, much “hotter” and, if the description of stolen items as “hot” were literally true, defendant’s pockets no doubt would have smoldered, placing him on notice of the money’s ill-gotten character and supporting the verdict. But instead it remains true that “possession of recently stolen property alone is insufficient to permit the inference defendant knew the property was stolen....” (Reyes, supra, 52 Cal.App.4th at pp. 984-985.)
Similarly, the distance between defendant’s arrest in Newport Beach and King’s earlier Huntington Beach burglary furnishes no evidentiary basis to suppose defendant accompanied King during the burglary and therefore knew the money he received had been stolen. It was within the jury’s province to find King to be a noncredible witness, but disregarding his testimony did not establish defendant was with King when he burglarized Odell’s residence. Accordingly, the jury acquitted defendant of burglary. It would be sheer speculation to conclude defendant accompanied King to the scene of the crime and remained in King’s car while King committed the burglary. Indeed, the trial court instructed the jury on aider and abettor liability and, in acquitting defendant of burglary, the jury rejected the notion he was with King and acted as a lookout for King’s burglary of Odell’s residence. The court also instructed the jury to consider whether an uncharged conspiracy existed between King and defendant, “namely, entry of [the victim’s] house.” But the jury rejected the conspiracy scenario by rejecting aider and abettor liability. In sum, no evidence suggested defendant was with King at the time of the burglary. Nothing about defendant’s appearance suggested he, like King, had been awake all night or that he had joined King in a methamphetamine binge or otherwise suggested he had gone “cruising” with King before their 4:30 a.m. appointment. Consequently, no evidentiary basis supports the conclusion defendant knowingly received part of the stolen currency. Because no evidence apart from defendant’s mere possession of recently stolen funds supports his conviction, we must reverse the judgment.
III DISPOSITION
The judgment is reversed.
WE CONCUR: FYBEL, J., IKOLA, J.