Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. TA 091095, Judith Levey Meyer, Judge. Affirmed.
Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.
FLIER, J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Steven Craig Hamilton was convicted by a jury of one count of receiving stolen property and he admitted a prior conviction for assault with a deadly weapon. He was sentenced to the middle term of two years, which was doubled for the prior conviction. He was ordered to pay two fines totaling $400 and received presentence credit. We affirm the judgment.
FACTS
Tutor Saliba Corporation was under contract with the Los Angeles County Sanitation District in Carson to install a foul air removal system; as part of that contract, Tutor Saliba was required to furnish hundreds of custom-made aluminum handrails. On June 6, 2006, the day the crime was committed, Tutor Saliba foreman Robert Demotte was taking inventory of these handrails.
The handrails were stacked and bundled with metal bindings. Each railing had a serial number and weighed 40 pounds. At approximately 2:00 p.m. Mr. Demotte noticed that some bundle bindings had been broken. He found that eight railings were missing. In checking the premises, he saw four of the missing railings on the other side of the chain-link fence, down in a concrete embankment. When he got down to the embankment a little later, he saw that only two railings were left.
Mr. Demotte notified the police about the missing handrails.
Earlier that day, appellant brought some aluminum handrails to California Metal Recycling. Jorge Cabanillas of California Metal Reycling weighed the handrails and paid appellant for them. Mr. Cabanillas had done business with appellant before; he considered appellant a longtime customer. But this was the first time that appellant brought industrial materials. Appellant usually traded in aluminum cans and plastic and glass bottles. Since the handrails were industrial materials, Ms. Cabanillas was required to get personal identification from appellant, as well as his car’s license number, if available, and to feed this information into the computer. Mr. Cabanillas was also required to keep these materials until a Los Angeles Police Department detective would inspect them. Mr. Cabanillas complied with these requirements.
After Mr. Demotte had spotted some of the missing handrails in the embankment, he also saw one lying on a sidewalk. He now went to California Metal Recycling where he saw appellant near the cashier’s window, in the process of selling a handrail that was lying on the scale. Mr. Demotte told appellant that the handrail had been stolen from the job site and it belonged to him, Demotte, and asked appellant where he got it. Appellant said he had found the handrail. Demotte told appellant that the sheriffs were on their way, that appellant was a person of interest and that he should stay on the premises. Appellant, however, left on his bicycle, saying that he wanted to get a beer.
Mr. Demotte found four of Tutor Saliba’s handrails in California Metal Recycling’s warehouse.
Sheriff’s Deputy Daniel Starkey met Mr. Demotte at California Metal Recycling that afternoon, examined the receipts for the handrails and learned appellant’s name and address. The residence disclosed by this information was two miles away. Starkey went to that address, found appellant, placed him under arrest and read appellant his Miranda rights.
Miranda v. Arizona (1966) 384 U.S. 436.
Starkey told appellant that he was investigating stolen handrails found at California Metal Recycling. Appellant told Starkey that he found the handrails on the sidewalk and thought that someone “had probably jacked them, so he [appellant] took them there [California Metal Recycling] to get some money because he needed it.”
The next day, Detective Morales interviewed appellant at the sheriff’ station. He read appellant his Miranda rights, which appellant waived. Morales then showed appellant two receipts, one issued at 8:30 a.m. and the other at 9:10 a.m. on June 6 by California Metal Recycling. The first reflected 79 pounds of aluminum handrails, and the second showed 74 pounds. Appellant admitted that he sold both batches of handrails. Appellant stated that he found five or six handrails lying on the sidewalk and decided to take them to the recycling center and sell them. Morales asked appellant whether he thought that the handrails were stolen. According to Morales, appellant replied: “‘I’ll be honest with you, they probably were.’”
Morales told appellant that the handrails were probably thrown over a wall. Appellant nodded his head and said he knew who had stolen the rails from the job site. But appellant wouldn’t say who that was, stating that the thief lived in a camp 50 to 100 yards from the job site.
Appellant did not testify and presented no evidence on his behalf.
DISCUSSION
1. Evidence Other Than Appellant’s Admissions Established Corpus Delicti
Relying on the rule that corpus delicti must be shown by evidence other than the defendant’s confessions or admissions (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169), appellant contends that, other than his statements to Starkey and Morales, there is no evidence that he knew that the handrails were stolen.
Corpus delicti is shown by (1) the fact of injury, loss or harm; and (2) the existence of a criminal agency as its cause. (People v. Culton (1992) 11 Cal.App.4th 363, 366-367.)
There was evidence in this case of both elements of corpus delicti apart from appellant’s admissions or confessions. The fact of loss was shown by Mr. Demotte’s testimony. The existence of a criminal agency as to the cause of the loss was shown when Mr. Demotte confronted appellant as he was in the act of selling one of the handrails. At that point in time, Mr. Demotte knew that handrails had been stolen from the job site and he saw appellant in the act of selling one of Tutor Saliba’s handrails. This is direct, and not circumstantial, evidence of criminal agency since there was no other way for the handrail to get to the recycling center than by theft. And, of course, Mr. Demotte’s testimony was legally sufficient to establish this fact.
“As used in this chapter, ‘direct evidence’ means evidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact.” (Evid. Code, § 410.)
“Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid. Code, § 411.)
2. Circumstantial Evidence Other Than Appellant’s Statements Show That He Knew That the Handrails Were Stolen
Appellant contends that there is insufficient evidence that he knew that the handrails were stolen. As far as his admissions to Starkey and Morales are concerned, appellant dismisses them as having been made after being told that the handrails were stolen.
In the first place, there is nothing to show that appellant’s admissions to Starkey and Morales were inspired by having been told that the handrails were stolen. If in fact he did not know that they had been stolen, one would think that the first thing appellant would have said when told that they handrails had been stolen is that he did not know that. As it was, when he spoke with Starkey and Morales, appellant abandoned the lie he had told Mr. Demotte that he found the handrails and admitted to the officers that he knew they were stolen.
It is of course clear that appellant’s statements to Starkey and Morales are substantial evidence of his guilt.
Second, there is circumstantial evidence apart from appellant’s statements that he knew the handrails were stolen. After being confronted by Mr. Demotte and having been asked to stay at the recycling center to await the police, appellant left. This suggests guilt and not innocence. If appellant had actually found the handrails, as he told Mr. Demotte, one would think that he would have remonstrated with him or at least waited for the police so he could clear himself. Finally, the suggestion that 153 pounds of aluminum handrails, stamped and equipped with serial numbers, would be lying around the streets to be “found” by a passerby is rather improbable, given that there is no evidence that these handrails were being shipped or transported on the day in question.
It is true that there are circumstances that suggest innocence and not guilt, such as the fact that appellant gave the correct identification and license number at the recycling center. The test on appeal, however, is not whether there are circumstances that justify a contrary finding, but whether there is substantial evidence to support the verdict that was reached. (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) As we have shown, there is such substantial evidence in this case.
3. The Trial Court Responded Correctly to the Jury’s Question
During its deliberations, the jury sent to the trial court the following question: “If I think or presume something may have been stolen at some point, by some individual, and I keep whatever the item is, for personal profit or other, have I broken the law by not having consideration for who I am hurting?” (Double underscoring in original; capitalization omitted.)
The trial court questioned the juror who had generated this question in an effort to clarify the question. After an exchange with the juror, the court summed up the question in its own words as follows: “You see something. You don’t know it’s stolen. You take it, and you just keep it, but you have no knowledge as to whether it’s stolen. Is that a crime?” The juror agreed that this was his question.
The court was inclined to answer the question with a no but the district attorney objected. In substance, the prosecutor reasoned that answering the question would be usurping the jury’s fact-finding function. The defense disagreed and thought that the question should be answered. In the end, the trial court agreed with the prosecutor and, instead of answering the question, again gave Judicial Council of California, Criminal Jury Instruction No. 1750 (CALCRIM) as an instruction to the jury. In relevant part, CALCRIM No. 1750 states that in order to be convicted the defendant must have received and/or sold property that had been stolen and must have known that the property had been stolen.
There is some doubt that the trial court’s reformulation of the initial inquiry was correct, albeit the juror indicated that it was. The fact of the matter is that whatever the exact question was, the thrust of the initial question was whether there was a duty or requirement imposed on appellant to inquire whether the handrails were stolen. In light of the circumstance that appellant at one point had professed to have found these handrails lying on the street, the jury’s probable concern makes sense whether, given the unusual nature of these handrails, appellant should have inquired about them.
On balance, we conclude that the trial court’s decision to stick with CALCRIM No. 1750 was the better course of action. If the court had answered the reformulated question with a “no,” the answer would have been nothing other than what CALCRIM No. 1750 stated, i.e., that the defendant has to know that the property was stolen. If the court had addressed the initial question by stating that appellant should have made inquiries about the handrails, the answer would have tipped the case in favor of a conviction. A negative answer would have had an opposite effect. Either way, the court would have interfered with the determination of fact whether, given the circumstances, appellant knew that the handrails were stolen.
We conclude that appellant’s contention that the trial court erred in handling the jury’s question is without merit.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: RUBIN, Acting P. J., BIGELOW, J.