Opinion
A147912
07-30-2018
THE PEOPLE, Plaintiff and Respondent, v. NICOLE JOHNSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51511468)
Defendant Nicole Johnson was convicted of second degree robbery and receiving a stolen vehicle after she and an accomplice stole a purse from a customer at McDonalds and used a stolen truck to make their getaway. Defendant now contends no substantial evidence supports the conviction for receipt of a stolen vehicle, and that the trial court erred in using jury instruction CALCRIM No. 376 to instruct the jury on possession of recently stolen property as evidence of a crime. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 2015, Ramon Martin's white Silverado truck was stolen in Antioch.
On the afternoon of June 12, 2015, Anamarie Farias and her children went to a McDonald's in Martinez with other parents and children. Farias sat at a table talking with a friend with her purse on a table to her left. Farias noticed defendant standing behind her friend, and then defendant lunged across the table and grabbed Farias's purse. Defendant ran toward the exit and Farias followed. Outside McDonald's, a white truck pulled up, and defendant jumped in on the passenger side. Farias was able to grab the outside handle of the passenger door. From inside the truck, defendant tugged the door closed with her left hand and swatted Farias's hand away from the door handle with her right hand. The truck accelerated, and Farias had to let go of the door handle. A car blocked the truck from the front, so the truck backed up, maneuvered to the left, and recklessly drove out of the parking lot.
Estee Smalley was in the McDonald's parking lot that afternoon. She noticed a white pickup truck going the wrong way in the parking lot and then a woman running to the truck with people chasing after her. Smalley took pictures of the truck with her phone.
Martinez Police Officer Miles Williamson was dispatched to McDonald's, where he spoke with Farias and other witnesses, including Smalley, and viewed surveillance video taken inside the restaurant.
After speaking with the police, Smalley drove to a nearby Walmart, where she saw the white truck again. She reported this to the police.
Williamson and his partner drove to the Walmart, about half a mile away, where they found the white truck from Smalley's photo, as well as the two suspects—later identified as defendant and Raymond Gilmore—who appeared in the McDonald's surveillance video and Smalley's photos. Defendant and Gilmore were walking toward the truck, and each was carrying a backpack or bag. Williamson told them to sit on the curb, and they complied. When the officer told them why he stopped them and asked if they had any property related to the crime, defendant responded that she had some of the property and told him the purse was nearby, pointing behind a shipping container. Another officer retrieved Farias's purse. Soon after Williamson located the truck, Farias and Smalley arrived at the Walmart parking lot. Farias identified defendant. Smalley identified defendant, Gilmore, and the truck.
Williamson arrested defendant and Gilmore and searched them incident to arrest. In Gilmore's wallet, Williamson found checks for personal accounts other than Gilmore's or defendant's. These included checks with the name Wendy Brown. He also had a credit or debit card for Wendy Brown.
Williamson found identification cards on defendant that did not belong to her. Defendant had a Visa debit card in the name of a woman other than herself. She had a driver's license with her photograph but another woman's identifying information (different from the name on the debit card). In defendant's duffel bag, Williamson found a notepad with three pages of names and what appeared to be "identity theft related items" such as social security numbers and credit card numbers with expiration dates and security numbers.
The keys to the white truck were found in the ivy near where Gilmore was seated on the curb. The truck had a Washington state license plate on the back and no front plate. The license plate did not match the truck. Inside the truck behind the seats, the police found some clothes, a laptop computer, a pencil box, and a notebook pouch. The pencil case contained syringes, methamphetamine pipes, and dirty baggies, and the pouch contained mail and miscellaneous items with various names other than defendant's or Gilmore's. There was a checkbook in the driver door storage compartment. The first check was written out to defendant. In the bed of the truck, there were other license plates in a plastic container.
The white truck Gilmore and defendant used in stealing Farias's purse was Martin's stolen truck.
Defendant and Gilmore were charged with second degree robbery (Pen. Code, § 211; count 1) receiving stolen property, a motor vehicle (§ 496d, subd. (a); count 3), unauthorized use of personal identifying information (§ 530.5, subd. (a); count 5), and misdemeanor possession of a smoking device (Health & Saf. Code, § 11364; count 6). Gilmore was also charged with taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count 2), and defendant was charged with possession of a forged driver's license (§ 470b; count 4) and misdemeanor fraudulent possession of personal identifying information (§ 530.5, subd. (c)(1); count 7). Gilmore reached a plea agreement and did not go to trial.
Further undesignated statutory references are to the Penal Code.
Defendant testified on her own behalf at trial. Gilmore was her friend, and she had known him off and on for a year and a half. Gilmore had a car during the time defendant knew him, and it was not the white truck. Defendant saw Gilmore driving the white truck on June 11, 2015, when he picked her up in the truck. The next morning, Gilmore again picked up defendant in the white truck. They drove around and parked and sat in a couple of different parking lots.
In the afternoon of June 12, defendant and Gilmore were eating at McDonald's when they saw Farias and her purse. They made a plan that Gilmore would get the white truck, defendant would remain in the restaurant and grab the purse, and Gilmore would be outside in the white truck for their getaway. Defendant admitted she took the purse, ran for the exit, and jumped in the truck. She closed the door of the truck and, immediately after that, Farias opened it. Defendant shut the door again and locked it. Gilmore and defendant then drove to the Walmart parking lot. Gilmore went through Farias's purse and handed defendant a wallet. They walked around the parking lot and hid the purse. Defendant had clothing in a duffel bag in the truck. Gilmore got their belongings out of the truck.
Defendant testified that the pencil case that was found in the truck belonged to Gilmore. She knew it contained drug paraphernalia because she had seen the contents that day, and she recognized the pipes and syringes as drug paraphernalia because she was an addict. Defendant had used methamphetamine with Gilmore in the past and shared pipes with him, but she denied using methamphetamine with him on June 11 or 12, 2015. In the checkbook for Wendy Brown, there were two checks written payable to Gilmore and one check payable to defendant. Defendant admitted that she had written the checks earlier that day and then given them to Gilmore. She said Gilmore asked her to write the checks.
Defendant's primary defenses were that she did not use force in taking Farias's purse, and therefore did not commit robbery (count 1), and that she did not possess the stolen truck, and therefore did not receive stolen property (count 3). Following a jury trial, defendant was found guilty of all counts as charged.
DISCUSSION
A. Sufficiency of the Evidence of Receiving a Stolen Vehicle
"[T]o sustain a conviction for receiving stolen property, the prosecution must prove (1) the property was stolen; (2) the defendant knew the property was stolen; and, (3) the defendant had possession of the stolen property." (People v. Land (1994) 30 Cal.App.4th 220, 223 (Land).)
Defendant contends the prosecution in this case failed to prove two of these elements: that she possessed the property and that she knew the property was stolen. We are not persuaded.
" 'When a defendant challenges the sufficiency of the evidence, " '[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " ' . . . 'Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.' [Citation.] ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (People v. Casares (2016) 62 Cal.4th 808, 823-824.)
1. Possession
"Possession of the stolen property may be actual or constructive and need not be exclusive." (Land, supra, 30 Cal.App.4th at p. 223, fn.) "Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property." (Id. at p. 224.) In the case of a stolen vehicle, it has been recognized that mere presence in the vehicle is not sufficient to show possession (In re Anthony J. (2004) 117 Cal.App.4th 718, 729 (Anthony J.)), but actually driving the vehicle is not necessary to establish possession (Land, supra, at p. 223, fn. 2). The facts of Land and Anthony J. are instructive.
In Land, the defendant's friend arrived in a white car and told defendant the car was stolen. Defendant Land and his friend drove to the San Fernando Valley in the stolen car, and the friend stole some food from a 7-Eleven. Then Land and his friend robbed a man at rifle point. They made the victim crawl into the stolen white car, shot him in the back, and drove off in the victim's car. (Land, supra, 30 Cal.App.4th at pp. 222-223.) Land was convicted of, among other things, receiving stolen property (the white car), and he argued on appeal the conviction had to be reversed because there was no evidence he possessed the vehicle. (Id. at p. 223.) The Court of Appeal rejected Land's argument. After surveying cases from other jurisdictions, the court distilled the following: "[A]dditional factual circumstances are necessary to establish a passenger has possession or control of the stolen car. . . . [But] there is no single factor or specific combination of factors which unerringly point to possession of the stolen vehicle by a passenger." (Id. at p. 228.) Rather, "the question of possession turns on the unique factual circumstances of each case." (Ibid.)
Turning to the facts at hand, the Land court concluded, "The evidence established the driver and [Land] were friends. They drank together, did drugs together, and presumably knew each other well. [Land] knew the car was stolen. The car was stolen near [Land's] residence and they drove in it within the hour of its theft. They used the vehicle for their own benefit and enjoyment. The car was instrumental in their joint criminal enterprise that evening. They first used the car to transport them to the [San Fernando] Valley to commit the theft at the 7-Eleven store. Then they used the car in the robbery, assault and attempted murder of [the victim]. [¶] From the facts of [Land's] close relationship to the driver, use of the vehicle for a common criminal mission, and stops along the way before abandoning it (during which [Land] apparently made no effort to disassociate himself from his friend or the stolen vehicle) a reasonable juror could infer [Land], as the passenger, was in a position to exert control over the vehicle. This inference, in turn, would support a finding of constructive possession." (Land, supra, 30 Cal.App.4th at p. 228.)
In Anthony J., in contrast, the minor Anthony testified his friend told him, " 'come on,' " and then Anthony and his friend got in the backseat of a BMW. (Anthony J., supra, 117 Cal.App.4th at p. 723.) Anthony had seen the driver once before at a cousin's house, but he did not know the driver well. They drove around for 20 or 30 minutes and parked. Soon after, all the occupants of the BMW were detained. (Id. at pp. 722-724.) The Court of Appeal held this was not sufficient to establish Anthony received stolen property. The court explained, "The facts as they existed at the close of the People's case did not comport with those in Land, and the People's case at most demonstrated mere presence by Anthony J. in the stolen vehicle. The only evidence presented at that time was that four young men got out of a car, they ran as a patrol car drove nearby, a set of keys was found near them when they were detained, and the driver of the vehicle was identified by a witness, but Anthony J. was not. There were no facts showing that Anthony J. and the driver were friends, that they had engaged in criminal activity together in the past, that he was a passenger shortly after the vehicle was stolen, or that Anthony J. and the driver jointly used the vehicle to commit crimes. Thus, the People's evidence did not demonstrate beyond a reasonable doubt that Anthony J. had possession of the vehicle, either actual or constructive." (Id. at p. 729.)
Here, the facts are closer to Land than to Anthony J. Defendant and Gilmore were friends, they had done drugs together in the past, they spent the morning driving around and parking, and they planned to steal Farias's purse together using the stolen truck as the getaway car. Then they followed through with their plan. In addition, defendant kept her belongings in the truck (her duffel bag contained her clothes), she was familiar with the contents of the truck, and a check written out to her was found in the driver side storage compartment, further evidence suggesting she exerted a measure of control over the truck together with Gilmore. And, as we will explain, there was sufficient evidence for a reasonable jury to infer defendant knew the truck was stolen. Taken together, we conclude this was sufficient evidence to support a finding of constructive possession of the stolen truck.
2. Knowledge
Defendant argues that even if she possessed the white truck, there was no evidence she knew the truck was stolen. We disagree.
"Knowledge [that property has been stolen] may be circumstantial and deductive. [Citations.] Among the elements from which knowledge may be inferred are that the property was obtained from a person of questionable character [citation], and the failure of the accused to satisfactorily explain his possession. [Citation.] Possession of stolen property, accompanied by an unsatisfactory explanation of the possession or by suspicious circumstances, will justify an inference that the property was received with knowledge it had been stolen. [Citation.] It is enough if, considering all the evidence, which may be circumstantial, an inference of guilt may be found." (People v. Boinus (1957) 153 Cal.App.2d 618, 621-622.)
In this case, defendant knew Gilmore had a car, but the white truck was not that car. According to defendant, Gilmore showed up with the white truck the day before they stole the purse. The truck had an out-of-state license plate and there were two additional license plates in "plain view" in the bed of the truck. These suspicious circumstances were such that defendant could infer the truck was stolen. Moreover, as the Attorney General notes, the evidence showed Gilmore and defendant were involved in identity theft together and planned to steal a purse together, further evidence that would have suggested to defendant that the white truck Gilmore showed up with may have been stolen. We conclude the evidence was sufficient for a reasonable jury to find defendant knew the white truck was stolen. B. CALCRIM No. 376
Again, defendant kept her belongings in the truck and was familiar with its contents, and she had spent hours with Gilmore driving around and parking the truck. It could be inferred that she would have noticed the two license plates in plain view in the truck bed.
The trial court instructed the jury with CALCRIM No. 376 as follows: "If you conclude that the defendant knew she possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of Second Degree Robbery, Grand Theft, Petty Theft, or Receiving Stolen Property—Motor Vehicle based on those facts alone. However, if you also find that supporting evidence tends to prove her guilt, then you may conclude that the evidence is sufficient to prove she committed Second Degree Robbery, Grand Theft, Petty Theft, or Receiving Stolen Property—Motor Vehicle.
"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 her guilt of Second Degree Robbery, Grand Theft, Petty Theft, or Receiving Stolen Property—Motor Vehicle.
"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."
"CALCRIM No. 376, is based on a 'longstanding 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 (2011) 198 Cal.App.4th 698, 709 (Lopez).) Defendant argues, however, this jury instruction permitted the jury to convict defendant of robbery and receiving a stolen motor vehicle on less than proof of all the elements for these offenses. She contends the instruction itself is "unconstitutional and based on an unreasonable inference." We are not convinced.
The instruction reminded the jury it was not allowed to convict unless "convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt." Other instructions correctly stated the elements of robbery (CALCRIM No. 1600) and the elements of receiving stolen property (CALCRIM No. 1750). The jury would not have understood CALCRIM No. 376 as instructing it to ignore those elements or to convict on less than a finding that each element of those offenses was proven beyond a reasonable doubt.
Moreover, CALCRIM No. 376 has already withstood similar constitutional challenges. In People v. O'Dell (2007) 153 Cal.App.4th 1569, 1573, the appellant argued the use of CALCRIM No. 376 "violated his Sixth Amendment right to have each element of the charged offense proved beyond a reasonable doubt and violated his Fourteenth Amendment right to due process of law." The reviewing court disagreed, concluding, "The instructions repeatedly informed the jury that each element of the offense must be proved beyond a reasonable doubt, and thus the giving of CALCRIM No. 376 did not remove the issue of intent from the jury. [Citations.] CALCRIM No. 376 itself accurately describes the law regarding mental state inferences to be drawn from possession of stolen property. The instruction did not infringe on [the] appellant's constitutional rights." (Id. at p. 1577.) Other cases are in accord. (See Lopez, supra, 198 Cal.App.4th at pp. 710-711; People v. Solorzano (2007) 153 Cal.App.4th 1026, 1036.)
In short, we reject defendant's constitutional challenge to CALCRIM No. 376.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.