Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC628914
McAdams, J.
A jury convicted defendant Larry Harper of one count of first degree burglary (Pen. Code, §§ 459-460, subd. (a), a felony) and one count of resisting arrest (§ 148, subd. (a)(1), a misdemeanor). In a bifurcated proceeding before the court, defendant admitted an enhancement allegation that he had served a prior prison term for willful discharge of a firearm. (§§ 667.5, subd. (b), 246.3.) The court sentenced defendant to the midterm of four years for the first degree burglary plus one year for the prison prior enhancement, for a total of five years on the felony count. It sentenced defendant to six months concurrent for resisting arrest.
All further statutory references are to the Penal Code, unless otherwise stated.
On appeal, defendant contends the trial court erred when it instructed the jury with Judicial Council of California, Criminal Jury Instructions (2007) CALCRIM No. 376 and when it failed to instruct the jury sua sponte with CALCRIM No. 358. He also raises a claim of cumulative error. We find no prejudicial error and affirm the judgment.
Facts
I. Prosecution Case
Ako Kitissou and his girlfriend Lisa Navarro moved into the condominium at 54 Cabot Avenue in Santa Clara approximately one week prior to May 5, 2007. The two-story condominium was located in a gated complex. It had a patio in the back that was surrounded on three sides by five- to six-foot tall stucco walls. The condominium next door, 52 Cabot Avenue, was vacant (hereafter “vacant condominium”).
On May 5, 2007, both Kitissou and Navarro went to work in the morning. They returned to their condominium between 5:00 and 6:00 p.m., then left to clean Kitissou’s old apartment and move some of his things into their new condominium. They returned around 8:00 p.m. and went upstairs to shower before going out to dinner.
Navarro heard a strange noise and went downstairs to check on it. When she got downstairs, she saw defendant on her back patio pacing with a cigarette in his hand. She also saw him “jostling” the screen on the window that looked out on the patio. Navarro noticed that the window was open; it was not open when she left the condominium earlier that evening.
Navarro started screaming and said “What the hell are you doing on our porch?” Defendant did not respond; he backed up and looked shocked to see her. Navarro called Kitissou. Kitissou opened the patio door and asked defendant what he was doing there. Defendant said he was looking for a friend named “Johnny” and another friend. Kitissou told defendant “Johnny” did not live there and suggested he check next door. Defendant jumped over the stucco wall onto the patio of the vacant condominium next door.
Navarro testified that defendant said he was looking for “Johnny.” Kitissou testified that defendant said he was looking for two friends, whose names Kitissou could not recall.
Kitissou motioned Navarro to go upstairs. Navarro thought the situation was strange, checked the condominium for the couple’s laptop computers, and discovered they were both missing. She called 911.
Kitissou stepped inside his condominium. Minutes later, he returned to his patio and saw defendant pacing around on the patio of the vacant condominium. Kitissou asked defendant if he had found his friends. Defendant said no, handed Kitissou his (Kitissou’s) old driver’s license, and said he found it in the vacant condominium. Kitissou kept the old license in a drawer in the second bedroom of his condominium. As Kitissou spoke to defendant, he noticed that defendant was wearing his (Kitissou’s) clothing, which included a blue, button-down shirt; khaki slacks; black shoes; and a distinctive blue beanie Kitissou had purchased in New York.
Kitissou stepped onto his patio a third time and saw defendant pacing around in a pair of boxer shorts on the patio of the vacant condominium. He asked defendant if he knew anyone at the condominium complex. Defendant said he did not know anyone, did not have any friends, and had just moved there.
Right before the police arrived, Kitissou saw defendant approach the wall between his condominium and the vacant condominium wearing a black ski mask. The mask was not pulled down over defendant’s eyes. Defendant looked like he was going to jump over the wall between the two units, but stopped when he saw Kitissou.
Four police officers responded to the 911 call. They testified regarding their investigation and defendant’s arrest. Officer Horn was stationed at the front door of the vacant condominium. He heard the front door open and ordered defendant to stop. Defendant ran back into the vacant condominium and jumped over the patio wall onto Kitissou’s patio. Officer Henderson was stationed on Kitissou’s patio. He yelled “Police, stop!” several times. Defendant ran past Officer Henderson, through the patios of several adjoining condominiums, onto the roof of a retail store that was adjacent to the condominium complex. Defendant finally stopped and was arrested on the roof. Officer Henderson searched defendant and found Kitissou’s cell phone and a pair of Navarro’s panties in defendant’s pants pocket.
Both Kitissou and Navarro identified defendant to the police after he was apprehended. They were sure he was the man they saw on their patio. At that time, defendant was wearing a sweater and a different pair of pants that belonged to Kitissou. After the incident, Navarro noticed that the screen on her patio window had been tampered with.
The police found several items belonging to Navarro and Kitissou in the vacant condominium, including: (1) a Whole Foods bag that Navarro kept in the coat closet; (2) Navarro’s laptop, which she kept in the kitchen; (3) Kitissou’s laptop, which he kept in the second bedroom/office upstairs; (4) a black “office bag” that Kitissou used for work; (5) new license plates for Kitissou’s car, which had been in the kitchen; and (6) Kitissou’s travel suitcase with several articles of clothing that belonged to Kitissou inside. According to Kitissou, the last time he saw the suitcase, it was empty; the last time he saw the clothes, they were hanging inside his closet. The police also found black gloves, a black ski mask and a blue jacket that did not belong to Kitissou, as well as defendant’s wallet with his identification card inside. The officers found two of Kitissou’s business cards and a bank receipt belonging to Kitissou inside defendant’s wallet.
The manager of the condominium complex testified that the vacant condominium had been vacant for two to three weeks prior to the incident. She checked the unit between 4:30 and 5:00 p.m. on the date of the incident and did not see any of the items the police found there. She also testified that defendant did not live at the complex and did not have permission to be in the vacant condominium.
Navarro and Kitissou moved after the incident because they no longer felt safe in the condominium.
Defense Case
Defendant did not testify. He argued that a reasonable interpretation of the evidence was that he had stumbled onto someone else’s burglary and trespassed to take advantage of the situation.
Discussion
I. CALCRIM No. 376
Defendant contends the trial court violated his due process rights under the Fifth and Fourteenth Amendments by instructing the jury with CALCRIM No. 376. He asserts that the word “slight” in the instruction “served to reduce the burden of proof which the People were required to carry.”
The trial court instructed the jury, without objection from defendant, with CALCRIM No. 376 as follows: “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 Count 1, first degree burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed that crime. [¶] 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 circumstance tending to prove his guilt of Count 1. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to [the] conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.” (Italics added.)
Defendant contends that the instruction unconstitutionally reduced the prosecution’s burden of proof by requiring only “slight” corroboration. He acknowledges that this contention was rejected by the appellate court in People v. Snyder (2003) 112 Cal.App.4th 1200, 1225-1228 (Snyder) with regard to CALJIC No. 2.15, a comparable instruction. In Snyder, the court held that “CALJIC No. 2.15 does not create an improper presumption of guilt arising from the mere fact of possession of stolen property, or reduce the prosecution’s burden of proof to a lesser standard than beyond a reasonable doubt. Rather, the instruction ‘relates a contrary proposition: a burglary … may not be presumed from mere possession unless the commission of the offense is corroborated.’ [Citation.] The inference permitted by CALJIC No. 2.15 is permissive, not mandatory. Because a jury may accept or reject a permissive inference ‘based on its evaluation of the evidence, [it] therefore does not relieve the People of any burden of establishing guilt beyond a reasonable doubt.’ [Citation.] Requiring only ‘slight’ corroborative evidence in support of a permissive inference, such as that created by possession of stolen property, does not change the prosecution’s burden of proving every element of the offense, or otherwise violate the accuser’s right to due process unless the conclusion suggested is not one that reason or common sense could justify in light of the proven facts before the jury.” (Snyder, at p. 1226.)
CALJIC No. 2.15 provides: [¶] “If you find that a defendant was in [conscious] possession of recently [stolen] [extorted] property, the fact of that possession is not by itself sufficient to permit an inference that the defendant ____ is guilty of the crime of ____. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you may consider [the attributes of possession-time, place and manner,] [that the defendant had an opportunity to commit the crime charged,] [the defendant’s conduct,] [[his] [her] false or contradictory statements, if any,] [and] [or] [other statements [he] [she] may have made with reference to the property] [a false account of how [he] [she] acquired possession of the stolen property] [any other evidence which tends to connect the defendant with the crime charged].” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1575.)
CALJIC No. 2.15 has withstood numerous other constitutional challenges in the appellate courts of this state. (See, e.g., People v. Yeoman (2003) 31 Cal.4th 93, 130-132; People v. Prieto (2003) 30 Cal.4th 226, 248-249; People v. Holt (1997) 15 Cal.4th 619, 676-677; People v. Williams (2000) 79 Cal.App.4th 1157, 1173-1174 (Williams).)
Nevertheless, defendant insists that federal cases support his position, citing United States v. Gray (5th Cir. 1980) 626 F.2d 494, 500; United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1255-1256; and United States v. Durrive (7th Cir. 1990) 902 F.2d 1221, 1229, fn. 6. We disagree with this contention. The cases defendant relies on dealt with a conspiracy instruction, not an instruction on possession of recently stolen property.
As this court stated in Williams, “an inference of guilt may rationally arise from the concurrence of conscious possession and many other circumstances.” (Williams, supra, 79 Cal.App.4th at p. 1173.) In our view, CALCRIM No. 376, like CALJIC No. 2.15 “correctly prohibits the jury from drawing an inference of guilt solely from conscious possession of recently stolen property but properly permits the jury to draw such an inference where there is additional corroborating evidence. As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inference is sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecution’s burden of proof or implicates a defendant’s right to due process.” (Ibid.)
CALCRIM No. 376 did not directly or indirectly address the burden of proof, and nothing in the instruction absolved the prosecution of its burden of establishing guilt beyond a reasonable doubt. (People v. Prieto, supra, 30 Cal.4th at p. 248.) In fact, CALCRIM No. 376 reminds the jury of the prosecution’s burden to prove its case beyond a reasonable doubt. Moreover, other instructions properly instructed the jury on its duty to weigh the evidence, what evidence it may consider, how to weigh that evidence, and the burden of proof.
For these reasons, we conclude the court did not err when it instructed the jury with CALCRIM No. 376.
II. Failure to Give CALCRIM No. 358 Sua Sponte
At trial, the prosecution presented evidence that defendant made false statements to Kitissou and Navarro and argued that the false statements showed consciousness of guilt. Defendant contends the court violated his due process rights by failing to give CALCRIM No. 358 sua sponte. He argues that because evidence regarding the false statements was admitted as evidence of his guilt, the court was required to instruct the jury pursuant to CALCRIM No. 358 that the statements were admissions that were required to be viewed with caution.
With regard to the issue presented, CALCRIM No. 358 provides: “You have heard evidence that the defendant made oral or written statements before trial. You must decide whether or not the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements. [¶] You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.” (Italics added.)
Defendant’s argument is based on the evidence of two sets of statements he made to the victims. First, while standing on the victim’s patio, defendant told both victims that he was looking for a friend. Defendant contradicted that statement later when he told Kitissou he did not know anyone at the condominium complex. Second, while on the patio of the vacant condominium, defendant told Kitissou that he lived at the condominium complex and had just moved in. The condominium manager subsequently testified that defendant did not live there. In closing argument, the prosecutor argued that these were false, misleading statements that showed consciousness of guilt. The trial court instructed the jury with CALCRIM No. 362 that if defendant made a false or misleading statement relating to the charged crime, knowing that the statement was false or misleading, that conduct may show that he was aware of his guilt. The jury was instructed that it could consider such facts in determining defendant’s guilt, but that evidence that defendant made such statements cannot prove guilt by itself. Defendant did not request CALCRIM No. 358 at trial.
Defendant contends that the allegedly false statements were admissions and that the trial court should have given CALCRIM No. 358 sua sponte in conjunction with CALCRIM No. 362. Defendant argues that the failure to give the instruction sua sponte was prejudicial because Kitissou did not tell the police about defendant’s statements that he did not know anyone at the condominium complex and that he had just moved into the vacant condominium. He contends that Kitissou’s failure to tell the police about these statements seriously undermined Kitissou’s credibility and that if the jury had been instructed to view Kitissou’s testimony about defendant’s admissions with caution, there is a reasonable probability the jury would have reached a different result.
The Attorney General argues that CALCRIM No. 358 does not apply because it was undisputed that defendant made the false statements. He also contends the false statements were exculpatory statements, not admissions, and that the court therefore was not required to instruct the jury to view them with caution. Finally, the Attorney General asserts that any error in failing to instruct with CALCRIM No. 358 was harmless.
CALCRIM No. 358 (which is also embodied in CALJIC No. 2.71) should be given sua sponte when there is evidence of a defendant’s admission and the admission is used to prove a part of the prosecution’s case. (People v. Carpenter (1997) 15 Cal.4th 312, 392-393 (Carpenter).) An admission is an extrajudicial statement by the defendant—inculpatory or exculpatory—that tends to prove his or her guilt when considered with the rest of the evidence in the case. (People v. McClary (1977) 20 Cal.3d 218, 230, overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17; Carpenter, at p. 393.)
While it is error for the court to fail to give CALCRIM No. 358 whenever an extrajudicial statement by the defendant is admitted and the prosecution relies on it to establish the defendant’s guilt, in determining whether the error was prejudicial, we “apply the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.” (Carpenter, supra, 15 Cal.4th at p. 393.) “Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately.” (People v. Pensinger (1991) 52 Cal.3d 1210, 1268 (Pensinger); see also People v. Stankewitz (1990) 51 Cal.3d 72, 94 (Stankewitz).)
In this case, there was no evidentiary uncertainty about the statements defendant made to the victims. Kitissou and Navarro corroborated each other’s testimony that defendant initially told them he was on their patio because he was looking for a friend. Their testimony on this point was uncontradicted. Kitissou’s testimony that defendant subsequently stated that he did not know anyone at the condominium complex and that he had just moved into the condominium complex was also uncontradicted, as was the condominium complex manager’s testimony that defendant did not live at the complex. Although defendant attempted to impeach Kitissou’s testimony with evidence that Kitissou did not tell the police officers about all of defendant’s statements, Kitissou explained that he did not tell the police about all of defendant’s statements because he only answered the questions they asked him. There was no evidence that defendant did not make the statements, that Kitissou fabricated the evidence regarding the statements, or that Kitissou did not remember the statements accurately.
In addition, the jury was instructed with CALCRIM No. 226 on the factors to consider in judging the credibility of the witnesses, with CALCRIM No. 301 on the sufficiency of testimony of one witness and the need to carefully review all the evidence, and with CALCRIM No. 318 on how to use evidence of statements made before trial.
Moreover, the question of defendant’s guilt or innocence did not depend on the statements at issue. While the prosecutor relied on the statements to show consciousness of guilt, there was overwhelming evidence that defendant committed the burglary of Kitissou and Navarro’s condominium. Defendant was found on the victims’ patio, wearing Kitissou’s clothing and tampering with the patio window. When challenged by Kitissou, he fled over the wall to the vacant condominium, where the victims’ laptops, suitcase, clothing, and other property were located. He remained in the vacant condominium for about 20 minutes and changed clothes while there, donning another set of Kitissou’s clothes. He had Kitissou’s old driver’s license in his possession and handed it to Kitissou. Kitissou’s business cards and bank receipt were found inside defendant’s wallet. Defendant fled when he saw the police. When he was apprehended, he was wearing Kitissou’s clothing and had Kitissou’s cell phone and a distinctive pair of Navarro’s panties in his pocket.
For these reasons, we conclude there is no reasonable probability that defendant would have obtained a more favorable result had the jury been instructed with CALCRIM No. 358 to view defendant’s statements with caution. (Carpenter, supra, 15 Cal.4th at p. 393; Pensinger, supra, 52 Cal.3d at p. 1268; Stankewitz, supra, 51 Cal.3d at p. 94.)
Cumulative Error
Since we find no merit to either of defendant’s claims of instructional error, we conclude that his claim of cumulative error is also without merit.
Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.