Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Super. Ct. No. SCD200877
AARON, J.
I.
INTRODUCTION
A jury found Ethan Harold Froide guilty of one count of petty theft (Pen. Code, § 484) (count 2). After the jury returned its verdict, Froide admitted that he had suffered various prior convictions. The trial court sentenced Froide to the midterm of two years in prison.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Froide claims that the trial court erred in instructing the jury pursuant to CALCRIM No. 371 regarding consciousness of guilt. In addition, Froide claims that resentencing is required in light of changes to the determinate sentencing law (DSL) made in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The People's evidence
In August 2006, Perry McCoy was working as a construction superintendent for a company that was building a residential complex. Some of the units in the complex were in the latter stages of development, including having had copper plumbing pipes installed. Copper is becoming an expensive material and copper pipes are commonly stolen from construction sites.
Froide worked as a fire caulker at the complex. A fire caulker installs a particular type of caulking material around the pipes that penetrate drywall openings. The fire caulking expands when heated, and is used to impede potential fires from spreading.
At approximately 3:00 p.m. on the afternoon of August 15, 2006, McCoy went to inspect some of the units at the complex. McCoy testified that upon entering one of the units, he saw caulking equipment in the living room. McCoy went into the kitchen and saw that one of the unit's copper pipes had been ripped out of the wall. McCoy noticed that there was "extremely fresh" caulking around the opening where the copper pipe had been. McCoy heard "clanging in the back of the unit," and went to a bathroom of the unit to investigate.
McCoy looked in the bathroom and saw Froide inside with a "section of pipe" and some "big pipe cutters in his hands." As McCoy came around a hall corner to the bathroom, "[Froide] went real fast and put [the pipe cutter] inside his bag." McCoy testified that upon looking into the bathroom he saw the following:
"[Froide] set the pipe down on the bathtub. We have these wooden boards over the top of the bathtub to protect the bathtubs from getting beat up. Set the pipe down and put the pipe cutters in his bag real quick, and try [sic] to turn away from me, and [he] had a real surprised look on his face."
According to McCoy, "It looked like [Froide] was hiding something." Froide appeared "surprised," "stunned," and "like a deer with headlights on," when McCoy first saw him.
McCoy identified both the pipe and the pipe cutter that Froide had been holding. In addition, McCoy pointed out a mark on the pipe where someone had attempted to cut the pipe. McCoy also demonstrated that the pipe cutter he saw Froide trying to hide was capable of cutting the copper pipe that had been removed from the wall.
On cross-examination, McCoy agreed with defense counsel that, upon entering the bathroom, McCoy saw Froide with "the pipe and . . . the pipe cutter." However, McCoy clarified that he had not seen Froide actually attempting to cut the pipe:
"[Defense counsel]: And you're saying that the pipe cutter was something that he was using, is that correct, at the time you saw him?
"[McCoy]: At the time he had ─ I'm trying to think now because I want to be very correct. He had the pipe in his hands, but I did not see the pipe cutters on the pipe."
2. The defense
Clarence Boggs, a former fire caulker, testified that fire caulkers often carry a pipe cutter for the purpose of making tips for caulking guns. Boggs also testified that some tips are made out of copper.
B. Procedural background
In August 2006, the People charged Froide with burglary (§ 459) and petty theft (§ 484). The People also alleged that Froide had previously suffered convictions for receiving stolen property (§ 496, subd. (a)), unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)), and petty theft (§ 488). In February 2007, after a jury trial, a jury found Froide not guilty on count 1 and guilty on count 2. Froide subsequently admitted having suffered the prior convictions. In April 2007, the trial court sentenced Froide to two years in prison.
Froide timely appeals.
III.
DISCUSSION
A. The trial court did not err by instructing the jury pursuant to CALCRIM No. 371 regarding consciousness of guilt
Froide claims that the trial court erred in instructing the jury pursuant to CALCRIM No. 371 regarding consciousness of guilt.
1. Factual and procedural background
During a jury instruction conference outside the presence of the jury, the prosecutor requested that the court instruct the jury pursuant to CALCRIM No. 371. The prosecutor argued that the following evidence supported his request for the instruction:
"The first is [Froide's] motion basically to turn away from Mr. McCoy conceal[ing] the pipe cutters in his pouch, basically hiding them from Mr. McCoy. [¶] And then also the fact that he's cutting pipe into smaller pieces. We had testi[mony] from Mr. Boggs that the workers generally carry their tools in a bucket. Certainly the defendant's [sic] here, cutting the pipe into smaller pieces, [which] will then allow him to either conceal the pieces [on] his person, perhaps in that tool belt or the bucket that he likely has at the job site, and therefore can get it out unnoticed, certainly quite a bit easier than carrying a foot-long piece of copper piping."
Defense counsel objected, claiming that there was no evidence to support a consciousness of guilt instruction. The trial court overruled the defense objection and indicated that there was evidence from which the jury could infer consciousness of guilt based on Froide's attempt to suppress evidence. The court stated in relevant part:
"Mr. McCoy indicated while he was still, I guess in the living room or wherever he first was, he hear[d] some clanking and some noise and that's what attracted his attention to go in the next room. [¶] I think it can be argued from that [that] Mr. Froide was doing something in there with the pipe and with the tools. I think . . . Mr. McCoy's testimony was he pointed out to the jury a mark on the pipe which he said was a preliminary effort to cut it, and he even pointed out that was consistent with the larger of the two pipe cutters. [¶] So I think that's circumstantial evidence there was some effort afoot to cut that pipe in many portions that ─ well, I suppose also the moving it from one room to the other."
McCoy also identified a smaller pipe cutter during his testimony.
The trial court orally instructed the jury pursuant to a modified version of CALCRIM No. 371 as follows:
"And if the evidence prove[s] to you that Mr. Froide tried to hide evidence, that's consciousness of guilt, a big word, the em[phasis] being that you have to do some fact finding. I expect the People may urge you to fin[d] that he decided to hide some evidence, and if you find that he tried to hide evidence, that conduct may show that he was aware of his [guilt]. Again that's for you to decide[]. If may emphasize your judgment [sic], your fact-finding responsibility. If you conclude that he made such an effort to hide some evidence, it's for you to decide the meaning and importance of whatever you think that effort may have been. [¶] That evidence is certainly not enough by itself to prove guilt, and again guilt has to be proved beyond a reasonable doubt."
The trial court also provided the jury with a written modified version of CALCRIM No. 371 that provided: "If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
2. Governing law
In People v. Hart (1999) 20 Cal.4th 546, 620 (Hart), the California Supreme Court outlined the quantum of proof that must be present before a trial court may instruct the jury regarding consciousness of guilt stemming from evidence of a defendant's alleged suppression of evidence:
"'It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. [Citation.] Whether or not any given set of facts may constitute suppression or attempted suppression of evidence from which a trier of fact can infer a consciousness of guilt on the part of a defendant is a question of law. Thus in order for a jury to be instructed that it can infer a consciousness of guilt from suppression of adverse evidence by a defendant, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference. [Citation.]' [Citation.]"
3. There was sufficient evidence to support the giving of the instruction
Froide claims that there was insufficient evidence to warrant the trial court instructing the jury pursuant to CALCRIM No. 371. On appeal, we must determine whether there is substantial evidence in the record to support the trial court's giving of the instruction. (Hart, supra, 20 Cal.4th at p. 620.)
From McCoy's testimony, as described in part II.A.1., ante, the jury could have reasonably inferred that Froide had removed the copper pipe from the kitchen, and that he was attempting to cut the pipe into smaller pieces when McCoy discovered him in the bathroom of one of the units. The jury could have further inferred that in cutting the pipe, Froide was attempting to conceal the pipe for the purpose of transferring it off site surreptitiously. We reject Froide's argument that the fact that there was not direct evidence that he acted in such a fashion precluded the trial court from instructing the jury pursuant to CALCRIM No. 371.
McCoy's testimony regarding Froide's action in attempting to hide the pipe cutter also constitutes evidence supporting the instruction. We reject Froide's argument that "McCoy testified that he never saw the pipe cutters in Mr. Froide's hands . . ." As is made clear by the testimony quoted in part II.A.1., ante, McCoy testified that he saw Froide holding the pipe cutters and attempting to quickly place them in his bag.
In light of McCoy's testimony, we conclude that there was sufficient evidence to support the giving of CALCRIM No. 371.
4. The trial court did not err in failing to instruct the jury that the jury was required to find facts supporting an inference of consciousness of guilt beyond a reasonable doubt
Froide claims that the trial court's consciousness of guilt instruction (CALCRIM No. 371) was deficient because the instruction failed to inform the jury that it was required to find facts necessary to support the inference beyond a reasonable doubt. We review this claim de novo. (People v. Posey (2004) 32 Cal.4th 193, 218 "The independent or de novostandard of review is applicable in assessing whether instructions correctly state the law"].)
Although Froide cites no authority to support his claim, he notes that the court orally instructed the jury pursuant to a modified version of CALCRIM No. 224 as follows: "[B]efore you may rely on circumstantial evidence you have to conclude that facts necessary to prove guilt, to which the intent to steal has been proved [sic], you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt." The trial court also provided the jury with a written version of CALCRIM No. 224 that provided: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt."
Proof of a defendant's consciousness of guilt is not essential to a finding of guilt beyond a reasonable doubt. Further, Froide has not cited any authority that provides that the People must prove allfacts in a criminal case beyond a reasonable doubt. (Compare with People v. Carpenter (1997) 15 Cal.4th 312, 382 [uncharged offense evidence must be established by a preponderance of the evidence standard].)
We are aware that in People v. Pensinger (1991) 52 Cal.3d 1210, 1246-1247, the California Supreme Court suggested, but did not hold, that a jury may draw an inference of consciousness of guilt only if every fact necessary to support the inference has been proven beyond a reasonable doubt:
"Defendant also argues that the instruction was defective because it failed to tell the jury that it may only draw an inference of consciousness of guilt if every fact necessary to support the inference has been proven beyond a reasonable doubt. However, if we look at the instructions as a whole, the jury was instructed as defendant desires. The court instructed the jury pursuant to CALJIC No. 2.01 on the use of circumstantial evidence, and this instruction states in pertinent part: ' . . . before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt.' Thus the jury was told that before they could use an inference of consciousness of guilt as circumstantial evidence of guilt, they must find any fact upon which the inference rested proved beyond a reasonable doubt."
In this case, as in Pensinger, the trial court instructed the jury that, before the jury could draw an inference essential to establish guilt, the jury was required to find the facts supporting such an inference beyond a reasonable doubt. No additional instructions were required.
In light of our conclusion, we need not consider the People's argument that Froide forfeited this claim by failing to raise it in the trial court.
B. Froide is not entitled to be resentenced pursuant to Sandoval, supra, 41 Cal.4th 825
Froide requests that his sentence be vacated and that the matter be remanded to the trial court with directions to resentence him under the DSL, as discussed in Sandoval.
In Cunningham v. California (2007) ___ U.S. ___, 127 S.Ct. 856 (Cunningham), the United States Supreme Court held that the DSL violates a defendant's federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than to the jury, the authority to find the facts that render a defendant eligible for an upper term sentence. In the wake of Cunningham, the Legislature amended the DSL so as to comply with that decision. (Stats. 2007, ch. 3, enacting Sen. Bill No. 40 (2007-2008 Reg. Sess.).)
In Sandoval, the court determined "what type of resentencing proceedings must be conducted in those cases . . . in which a Sixth Amendment error requires reversal of an upper term sentence and a remand for resentencing." (Sandoval, supra, 41 Cal.4th at p. 845.) The Sandoval court, "direct[ed] that sentencing proceedings to be held in cases that are remanded because the sentence imposed was determined to be erroneous under Cunningham, supra, ____ U.S. ____, 127 S.Ct. 856, are to be conducted in a manner consistent with the amendments to the DSL adopted by the Legislature." (Id. at p. 846.)
In this case, the trial court sentenced Froide to the midterm of two years in prison on count 2. Thus, the trial court did not commit any Cunningham error in sentencing Froide. The Sandoval reformation of the DSL applies only in cases in which an upper term was initially imposed, and must be remanded due to Cunningham error. Accordingly, Sandoval provides no authority for vacating Froide's sentence and remanding his case to the trial court for resentencing.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., NARES, J.