Opinion
A157206
03-03-2020
THE PEOPLE, Plaintiff and Respondent, v. RAY MICHAEL JAMES, SR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1804770)
A jury convicted Ray Michael James, Sr. of second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)). James admitted serving four prior prison terms (§ 667.5, subd. (b)). The trial court sentenced James to 10 years in state prison, which included four one-year enhancements for the prison priors.
Undesignated statutory references are to the Penal Code.
James appeals. He contends the court erred by instructing the jury with CALCRIM No. 376 (possession of recently stolen property as evidence of a crime). He also claims—and the Attorney General agrees—the prior prison enhancements must be stricken pursuant to Senate Bill No. 136. (Stats. 2019, ch. 590, § 1.)
We strike from James's sentence the prior prison enhancements (§ 667.5, subd. (b)). In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged James with second degree commercial burglary (§§ 459, 460, subd. (b) (count 1)); receiving stolen property with a value exceeding $950 (§ 496, subd. (a) (count 2)); vandalism (§ 594, subd. (b)(1) (count 3)); and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a) (count 4)). The prosecution alleged James had two prior serious felony convictions (§ 667, subd. (b)) and had served four prior prison terms (§ 667.5, subd. (b)).
James pled guilty to count 4, misdemeanor possession of methamphetamine.
Trial
Meghan Hwang, a Humboldt County deputy sheriff, was driving past a CalTrans yard when she saw a van parked on the grass. Hwang thought it was strange, because she did not usually see vehicles parked in that location. She saw a man "run from behind the CalTrans fencing carrying a very large gas can with . . . a plastic hose," heading toward the van. The man got into the back of the van. Hwang pulled up behind the van. There was a lot "of movement in the back" of the van. The movement stopped; then Hwang saw two people sitting in the front seats.
Hwang went up to the van. James was in the driver's seat; a woman was in the passenger seat. Hwang and her partner searched the van and found methamphetamine, a CalTrans maintenance book, and other items of property belonging to CalTrans, including gas cans and an air hose. Hwang's partner searched James and found a CalTrans credit card used to purchase gas. James said that his friend offered to leave him gas at a CalTrans yard. James gave his friend methamphetamine in exchange for the gas. James acknowledged knowing the gas was stolen.
Locks had been removed from a gate and a building on the CalTrans yard, and there was a four-foot hole in the fence. CalTrans employees found bolt cutters, and noticed fuel had been drained from one of CalTrans's trucks.
Jury Instruction and Closing Argument
Over defense counsel's objection, the court instructed the jury with CALCRIM No. 376 (possession of recently stolen property as evidence of a crime). That instruction provides: "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 second degree commercial 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 second degree commercial burglary.
"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 second degree commercial burglary. [¶] 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."
During closing argument, defense counsel acknowledged the evidence showed receiving stolen property but argued there was no evidence of burglary.
Verdict and Sentence
The jury convicted James of count 1, second degree commercial burglary and found him not guilty of count 3, vandalism. The prosecution dismissed count 2, receiving stolen property with a value exceeding $950. The court sentenced James to 10 years in state prison, comprised of the upper term of three years on the second degree commercial burglary conviction (§§ 459, 460), a three-year enhancement for the prior serious felony conviction (§ 667, subd. (b)), and four one-year enhancements for the prison priors (§ 667.5, subd. (b)).
DISCUSSION
I.
No Error in Instructing the Jury with
CALCRIM No. 376
James claims CALCRIM No. 376 is "argumentative," and "unfairly favored the prosecution's burglary theory."
We address the argument on the merits, applying a de novo standard of review. We determine "whether the trial court ' "fully and fairly instructed on the applicable law." [Citation.]' [Citation.] [¶] ' "When reviewing a supposedly ambiguous [i.e., potentially misleading] jury instruction, ' "we inquire 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." ' " [Citation.]' [Citation.] The same test applies under California law. [Citation.] We look to the instructions as a whole and the entire record of trial, including the arguments of counsel. [Citations.] We assume that the ' " 'jurors [were] intelligent persons and capable of understanding and correlating all jury instructions . . . given.' [Citation.]" [Citation.]' [Citation.] Instructions should be interpreted, if possible, to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Lopez (2011) 198 Cal.App.4th 698, 708.)
CALCRIM No. 376 "is based on a 'long-standing rule of law [that] allows a jury to infer guilt of a theft-related crime from the fact a defendant is in possession of recently stolen property when coupled with slight corroboration by other inculpatory circumstances [that] tend to show guilt.' " (People v. Lopez, supra, 198 Cal.App.4th at p. 709.) Numerous courts have upheld the validity of this instruction. (Id. at pp. 710-711; People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574-1576 [instruction did not permit "jury to disregard defense evidence of innocent possession"]; People v. Solorzano (2007) 153 Cal.App.4th 1026, 1036 [CALCRIM No. 376 does not violate a defendant's due process right or lower the prosecution's burden of proof].)
The California Supreme Court has held CALJIC No. 2.15, the predecessor to CALCRIM No. 376, does not create a mandatory inference or shift the burden of proof to the defense. (People v. Grimes (2016) 1 Cal.5th 698, 730.) Our high court has also held the predecessor instruction does not unfairly favor the prosecution's theory of the case. (People v. Parson (2008) 44 Cal.4th 332, 355-356.)
Like the many courts before us, we conclude the trial court did not err by instructing the jury with CALCRIM No. 376. The court was not required to inform the jury that James's possession of recently stolen property could support his defense. As James acknowledges, the court instructed the jury on the elements of receiving stolen property (CALCRIM No. 1750), and the jury was aware it could find James guilty of receiving stolen property and not commercial burglary. James's reliance on People v. Earp (1999) 20 Cal.4th 826 does not demonstrate the jury instruction is "argumentative."
II.
The Four Prior Prison Term Enhancements
Must Be Stricken
When James was sentenced, section 667.5 subdivision (b) required the court to impose a one-year sentence enhancement for each prior prison term suffered by a defendant. (People v. Lopez (2019) 42 Cal.App.5th 337, 340- 341.) Effective January 1, 2020, that enhancement applies only if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Lopez, at pp. 340-341.) Here, the parties agree—as do we—that none of James's prior prison terms was for a sexually violent offense.
We decline the Attorney General's suggestion to remand for resentencing. "Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion. [Citation.] Accordingly, we will strike the four section 667.5, subdivision (b), enhancements imposed in this matter. We will direct the trial court to cause to be prepared an amended abstract of judgment reflecting [this modification] and to reduce [James's] total prison sentence accordingly." (People v. Lopez, supra, 42 Cal.App.5th at p. 342, fn. omitted.)
DISPOSITION
We modify James's sentence to strike the four section 667.5, subdivision (b) enhancements. We direct the superior court to prepare and forward to the California Department of Corrections and Rehabilitation a new abstract of judgment reflecting this modification, and to reduce James's sentence accordingly. As modified, the judgment is affirmed.
/s/_________
Jones, P. J. WE CONCUR: /s/_________
Simons, J. /s/_________
Burns, J.