Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge, Super. Ct. No. 06SF0347
Andrew E. Rubin, 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, Rhonda Cartwright-Ladendorf, Kristen Kinnaird Chenelia and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Kenneth Samuel Garcia, Jr., entered three unlocked garages on three separate occasions and stole a bicycle, a laptop computer, and a digital camera. Garcia’s roommate became aware of his criminal conduct and reported him to the police. A jury convicted Garcia of three counts of residential burglary (counts 1, 2, and 3; Pen. Code, §§ 459, 460, subd. (a)) and one count of receiving stolen property (count 4; id., § 496, subd. (a)). As to counts 2 and 3, the jury found a nonaccomplice was present during the burglaries. (Id., § 667.5, subd. (c)(21).) The trial court sentenced Garcia to four years in prison.
Garcia challenges the jury verdict on three grounds: (1) the trial court prejudicially erred by failing to instruct the jury sua sponte on accomplice testimony; (2) the trial prejudicially erred by permitting the prosecution to elicit testimony of Garcia’s poverty; and (3) Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 376 (possession of recently stolen property as evidence of a crime) violates due process.
As to the first argument, we conclude the evidence did not support an instruction on accomplice testimony as to counts 1, 2, and 3 (burglary). While there was evidence from which the jury could find the witness was an accomplice as to count 4 (receiving stolen property), any error in failing to instruct as to count 4 was harmless because independent evidence corroborated the witness’s testimony. We also conclude any error in permitting testimony on Garcia’s financial condition was harmless, and CALCRIM No. 376 does not violate due process. Accordingly, we affirm.
Facts
We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
Laurie Shimmons, a former police detective, lived in a one story house with attached garage on Del Monte Street in Laguna Hills, near a Ralphs supermarket on the corner of Alicia Parkway and Paseo de Valencia. When Shimmons left for week-long vacation on August 18, 2005, a pedestrian door to her garage was unlocked. When Shimmons returned home on August 24, she noticed her Cannondale mountain bike was missing from the garage. She reported the theft to the authorities.
On February 16, 2006, Stephanie Donihue parked her car in her garage, which was attached to her home in Laguna Hills. The car and a side door to her garage door were unlocked, and she left her purse on the front passenger seat of the car. The next morning, Donihue noticed her purse had been moved to the driver’s seat and its contents had been strewn about the passenger seat. She did not notice anything was missing, and thought perhaps her three-year-old daughter had gotten into the purse. After leaving for work, Donihue noticed her digital camera was missing. She drove home, opened the door to a refrigerator in her garage, and discovered that bottles of champagne worth about $500 were missing. Donihue immediately reported the thefts to the sheriff’s department.
During the evening of February 26, 2006, James Hegeduis had some friends at his home in Laguna Hills. Hegeduis’s home was a block and a half from Alicia Creek trail, which carries bicycles, horses, and foot traffic. He went to bed at about 2:30 a.m., leaving one friend in the garage playing internet poker. The friend soon retired to a couch in the house, leaving the pedestrian door to the garage unlocked. At about 3:00 a.m., Hegeduis heard a crashing sound coming from the garage. He did not investigate because he assumed his friend had knocked over the computer. Later that morning, Hegeduis checked the garage and discovered his snowboards had been knocked over and his laptop computer was missing. He did not contact the police because the computer was not worth much.
In January 2006, Charles Mason permitted Garcia, whom Mason had known for about a year, to stay in his studio apartment. Garcia had been living with his father, but they had a disagreement and Garcia needed a place to stay. Garcia agreed to pay half of the rent and utilities. Mason separately agreed to sell his car to Garcia and allowed him to drive the car while paying for it. When Garcia moved into Mason’s apartment, he brought a blue plastic container, television, X-box, DVD player, clothing, a black bag, a black backpack, and a bicycle.
In late January 2006, Mason asked to borrow Garcia’s bicycle to ride to a friend’s house about a mile and a half away. Garcia agreed, but said he had stolen the bicycle about five or six months earlier from the area near a Ralphs supermarket off of Alicia Parkway. Garcia warned Mason to be careful because he would be riding to the area where Garcia had stolen the bicycle.
Starting in late January 2006, Mason observed Garcia leaving the apartment every day at about 2:00 a.m. and returning before dawn. Garcia would leave wearing a sweatshirt, beanie, and boots, and carrying gloves. At least several times a week, he also carried a black backpack containing a flashlight. Garcia would leave the apartment on foot and walk through a park toward a riverbed that turned into a trail next to Alicia Parkway. On returning to the apartment, he would remove items from the backpack and place them in the blue plastic container. Mason saw Garcia bring back laptop computers, pipes, a wireless modem, cash, and two digital cameras. Garcia eventually told Mason he obtained the things in the backpack from burglarizing homes. Garcia told Mason burglary was easy; it was “like a joke to him.”
The first time Mason noticed Garcia leaving with the black backpack, he returned with cash and cigarettes he said he had taken from a car. Garcia gave Mason $20 and a pack of cigarettes. In mid-February 2006, Garcia told Mason he had stolen a laptop computer from a house near the trail adjacent to Alicia Parkway. Garcia told Mason he was pawning some of the stolen property, and Mason found a pawn shop business card on Garcia’s blue plastic container.
Mason wanted Garcia to move out of the apartment because he did not pay half the rent as he had promised and did not make payments toward purchasing Mason’s car. In February 2006, Mason learned there was an outstanding warrant for Garcia’s arrest for a traffic violation and informed the sheriff’s department of Garcia’s whereabouts. About ten hours after Mason notified the sheriff’s department, he and Garcia noticed a sheriff’s vehicle parked in front of Mason’s car and a sheriff’s deputy shining a flashlight into it. Mason did not approach the deputy because he did not want Garcia to know he had contacted the sheriff’s department.
The argument between Mason and Garcia over Garcia’s failure to pay his share of rent was ongoing and escalated to the point where Mason feared the situation could turn violent. Deciding he “wasn’t going to tolerate [Garcia] in my house anymore,” Mason walked to a Denny’s restaurant on March 1, 2006 and called the sheriff’s department.
In response to Mason’s call, Sheriff’s Deputy Todd Russ was dispatched to Mason’s apartment “in regards to a type of keep-the-peace call potentially involving landlord/tenant-type situation.” Russ met Mason in the parking lot outside of the Denny’s, where Mason explained the reason for his call. When Russ’s backup arrived, they drove with Mason to his apartment. While Mason waited by the patrol cars, Russ and two other deputies went to the apartment and knocked on the door. When nobody responded, they opened the door with a key Mason had given them and saw Garcia walking toward them as if to open the door. While Garcia sat on a couch with one deputy, Russ and the third deputy searched the apartment. In the blue plastic container they found a digital camera and laptop computer, both with the serial numbers removed, and Garcia’s daily planner. In a storage closet on the patio they found a Cannondale mountain bike and a 35-millimeter camera.
The deputies arrested Garcia and escorted him to the patrol cars. As the deputies placed Garcia in the patrol car, he told Mason “he was going to get him for this.”
The serial number on the Cannondale bicycle found in the storage closet matched that of the one stolen from Shimmons’s garage. Donihue identified the digital camera found in the blue plastic container as the one stolen from her car on February 16. The camera’s memory card stored pictures taken by Donihue and a picture of a marijuana pipe taken on February 17, 2006 at about 6:00 p.m. The same pipe was recovered from the blue plastic container. Information relating to Hegeduis was stored on the laptop computer found in the blue plastic container, and he identified that computer as the one stolen from his garage.
Discussion
I. The Trial Court Did Not Err by Failing to Instruct on Accomplice Testimony.
Garcia argues Mason was an accomplice to the offenses charged, and, therefore, the trial court erred by failing to instruct the jury on evaluating accomplice testimony. We conclude the trial court did not err because the evidence would not support a finding that Mason was an accomplice as to counts 1, 2, and 3 (residential burglary). Although there was evidence from which an inference could be drawn that Mason was an accomplice to count 4 (receiving stolen property), his testimony was sufficiently corroborated to be admissible under Penal Code section 1111.
A. The Evidence Did Not Support an Inference That Mason Was an Accomplice to Burglary.
“If sufficient evidence is presented at trial to justify the conclusion that a witness is an accomplice, the trial court must so instruct the jury, even in the absence of a request.” (People v. Brown (2003) 31 Cal.4th 518, 555.) “[A]n accomplice has a natural incentive to minimize his own guilt before the jury and to enlarge that of his cohorts; accordingly, the law requires an accomplice’s testimony be viewed with caution to the extent it incriminates others.” (Ibid.)
“An accomplice is . . . defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (Pen. Code, § 1111.) To be charged with the identical offense, the witness must be considered a principal under Penal Code section 31. (People v. Fauber (1992) 2 Cal.4th 792, 833.) Section 31 defines principals to include “[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission.” An accessory, in contrast to a principal, is not an accomplice. (People v. Fauber, supra, at pp. 833-834.) Penal Code section 32 defines an accessory as “[e]very person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof.”
The defendant has the burden to prove by a preponderance of the evidence that a witness is an accomplice. (People v. Fauber, supra, 2 Cal.4th at p. 834.) “Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom.” (Ibid.)
Garcia argues Mason was an accomplice because “he was aware that [Garcia] was using the apartment as a base of operations for his burglary and receiving stolen property activities” and “provided shelter, a car and took some of the proceeds.” There was no evidence that Mason let Garcia stay in his apartment so he could use it as a base for committing burglaries. Rather, the evidence established Mason invited Garcia to share his studio apartment when Garcia had a disagreement with his father and needed a place to stay.
Mason did not learn of Garcia’s criminal activities until Garcia warned him to be careful while riding the Cannondale bicycle because it was stolen. Knowledge alone of Garcia’s criminal activities did not make Mason an accomplice to burglary, but at most made him an accessory. Aider and abettor liability requires proof the aider and abettor acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) There was no evidence presented from which the jury could draw the inference that Mason acted with an intent to encourage or facilitate Garcia’s commission of the burglaries.
Mason testified he rode the stolen bicycle and accepted $20 from Garcia knowing they had been stolen. Stealing and receiving stolen property are distinct offenses: The thief and the fence are not accomplices of each other. (People v. Raven (1955) 44 Cal.2d 523, 526.) An exception to that rule arises when the thief and the fence conspire to steal and pass off stolen property (id. at pp. 526-527); however, no evidence of conspiracy was presented at trial. Moreover, Mason could not be an accomplice for accepting the $20 cash because Garcia was not charged with stealing money.
Finding stolen property in Mason’s apartment alone was not enough to prove Mason was an accomplice to burglary. “Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police, gives a false explanation regarding his possession or remains silent under circumstances indicating a consciousness of guilt, an inference of guilt is permissible and it is for the jury to determine whether or not the inference should be drawn in light of all the evidence.” (People v. McFarland (1962) 58 Cal.2d 748, 755.) Mason did not give the sheriff’s deputies a false explanation for the stolen property found in his apartment or remain silent.
However, the fact that recently stolen property was found in Mason’s apartment could make him an accomplice to receiving stolen property, the charge in count 4. In People v. Boyce (1980) 110 Cal.App.3d 726, 729, the defendant was charged with receiving stolen property. A witness denied taking part in the theft or original receipt of the stolen property, but police found stolen property in his home. (Id. at p. 735.) The court concluded that evidence of conscious possession of stolen property shortly after it was stolen was sufficient to raise an inference the witness was an accomplice to the defendant’s initial receipt of stolen property. (Id. at p. 736.)
B. Any Error in Failing to Instruct on Accomplice Testimony as to Count 4 Was Harmless Because There Was Sufficient Corroborating Testimony.
If the trial court erred by failing to instruct on accomplice testimony as to count 4, the error was harmless. Penal Code section 1111 prohibits conviction on the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the crime. (People v. Hayes (1999) 21 Cal.4th 1211, 1270.) Failure to instruct pursuant to section 1111 is harmless if there is sufficient corroborating evidence. (People v. Hayes, supra, at p. 1271.)
The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, so long as it tends to implicate the defendant by relating to an act that is an element of the crime. (People v. McDermott (2002) 28 Cal.4th 946, 986.) The independent evidence need not corroborate the accomplice as to every fact on which the accomplice testifies (People v. Davis (2005) 36 Cal.4th 510, 543) and need not establish every element of the charged offense (People v. McDermott, supra, at p. 986). The corroborating evidence is sufficient if, without aid from accomplice testimony, it “‘“tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth. . . . ” [Citations.]’ [Citations.]” (People v. Davis, supra, at p. 543; see also People v. Williams (1997) 16 Cal.4th 635, 680-681.)
The corroborating evidence here met that standard. Deputy Russ testified he was dispatched to contact Mason due to a potential breach of the peace. This testimony corroborated Mason’s testimony about his reason for contacting the sheriff’s department. Mason gave Russ the key to his apartment and authorized the deputies to enter it. When the deputies entered the apartment they found Garcia inside. The deputies searched the apartment and found a stolen laptop computer and digital camera inside a blue plastic container. That evidence connected Garcia to recently stolen property. Also inside the container were Garcia’s day planner, which held his birth certificate, a DMV receipt, mail, and personal papers. Those materials corroborated Mason’s testimony that Garcia was residing with him in the apartment and that the items inside the blue plastic container were Garcia’s.
II. Any Error in Permitting Testimony of Garcia’s Unemployment Was Harmless.
Garcia argues the trial court prejudicially erred by allowing the prosecution to elicit testimony of his poverty to establish motive. We conclude any error was harmless.
Mason testified he offered to let Garcia stay with him after Garcia could no longer stay at his father’s house. The prosecutor asked, “[d]o you know if [Garcia] was employed at the time?” Defense counsel objected to the question on grounds of relevance, speculation, and hearsay. The trial court overruled the objection, and Mason replied that Garcia was unemployed.
Garcia also asserts that Mason was permitted to testify “over objection” that Garcia was not paying his share of rent and utilities. Defense counsel did not object to questions on those matters.
Evidence of a defendant’s poverty generally is inadmissible to establish motive to commit robbery or theft. (People v. Wilson (1992) 3 Cal.4th 926, 929.) Although the prosecutor’s question about Garcia’s employment status arguably did not relate to poverty, we will presume the trial court erred by overruling the objection to it. Error in admitting evidence of a defendant’s poverty is evaluated under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Carrillo (2004) 119 Cal.App.4th 94, 103.) In this case, any error was harmless because it was not reasonably probable the jury would have reached a different decision if the trial court had sustained the objection. (People v. Watson, supra, at p. 836.)
Any purported evidence of Garcia’s poverty was a relatively small part of the prosecution’s case. Other than the question regarding employment, the only questions related to poverty concerned Garcia’s failure to pay his share of rent and utilities and to make payments on the car purchased from Mason. Defense counsel did not object to those questions. The prosecution did not elicit testimony about Garcia’s particular financial condition or indebtedness. The prosecutor did not argue Garcia’s unemployment was a motive to commit burglary. The jury verdict indicates it found Mason to be a credible witness. His testimony, excluding the testimony of Garcia’s unemployment, together with corroborating evidence, provided such strong evidence of guilt that it is not reasonably probable the jury’s decision would have been more favorable to Garcia if the trial court had not made the claimed error.
In People v. Carrillo, supra, 119 Cal.App.4th at page 103, footnote 3, a panel of this court remarked in assessing prejudice it was “not sure” whether “the fact questioning is ‘relatively brief’ carries a lot of weight.” The panel continued: “If the prosecutor had asked defendant only one question about her membership in Al Qaeda, it would be hard to defend as ‘relatively brief.’” (Ibid.) The panel made those comments in response to a claim the impermissible questioning was relatively brief when the prosecutor had raised the subject of the defendant’s financial condition with four defense witnesses, and “the sum of the evidence regarding [the defendant’s] financial condition was considerable.” (Id. at p. 103) In this case, the questioning of Mason regarding Garcia’s employment truly was brief, and such brevity does carry weight in light of the nature of the question, the lack of evidence of Garcia’s specific financial condition, the fact the prosecution did not argue Garcia’s financial condition, and the strong evidence of guilt.
III. CALCRIM No. 376 Does Not Violate Due Process.
Garcia argues CALCRIM No. 376 violates due process. CALCRIM No. 376 instructs on possession of recently stolen property as evidence of a crime and states, in relevant part: “If you conclude that the defendant knew (he/she) possessed property and you conclude that the property had in fact been recently (stolen/extorted), you may not convict the defendant of _______ <insert crime> based on those facts alone. However, if you also find that supporting evidence tends to prove (his/her) guilt, then you may conclude that the evidence is sufficient to prove (he/she) committed _______ <insert crime>. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt.”
Garcia argues the instruction violates due process for two reasons. First, he argues, the instruction’s use of the word “may” fails explicitly to advise the jurors they can reject the presumption of guilt. This argument has been rejected with respect to virtually identical language in the instruction’s predecessor, CALJIC No. 2.15. (People v. Yeoman (2003) 31 Cal.4th 93, 130-131; People v. Snyder (2003) 112 Cal.App.4th 1200, 1225-1226.) Garcia concedes he is making this argument only to preserve the issue for federal review.
Second, Garcia argues, CALCRIM No. 376 permits the jury to make a finding of guilt with but slight supporting evidence, and thus “violates the rule that all elements of the crime must be proved beyond a reasonable doubt.” In People v. Anderson (2007) 152 Cal.App.4th 919, 949, the court rejected the same argument. The Anderson court concluded CALCRIM No. 376 was consistent with People v. McFarland, supra, 58 Cal.2d 748, which “establishe[d] the rule that, because the possession of recently stolen property is so incriminating, only slight corroboration is needed to support an inference of guilt.” (People v. Anderson, supra, 152 Cal.App.4th at p. 950; see also People v. Snyder, supra, 112 Cal.App.4th at p. 1226 [upholding CALJIC No. 2.15 on similar grounds].) We agree with the analysis of People v. Anderson.
Disposition
The judgment is affirmed.
WE CONCUR: SILLS, P. J., ARONSON, J.