Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF129608. Roger A. Luebs, Judge.
Brett Harding Duxbury, 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, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Clement Isadore Leach, Jr., appeals from his conviction of 15 counts of burglary (Pen. Code, § 459) along with the true finding on the allegation that he had suffered a strike prior (§ 667, subds. (b)-(i)). Defendant contends (1) the jury instructions were erroneous in that they omitted the essential predicate of unexplained possession and (2) the finding that defendant had suffered a strike prior based on a Louisiana conviction for armed robbery must be stricken on the ground of insufficient evidence. The People concede that the evidence did not establish that defendant’s prior conviction qualified as a strike. We agree with that concession, and we will therefore remand the matter for retrial of the prior strike allegation and/or for resentencing. We find no other errors.
All further statutory references are to the Penal Code unless otherwise specified.
II. FACTS AND PROCEDURAL BACKGROUND
A. Counts 1 and 2
On March 22, 2006, a witness who was pumping gas at a gas station in Moreno Valley heard loud thumps and then heard glass shattering. He saw a person enter a building at Perris Boulevard and Iris Avenue by ducking underneath the grab bar on the front door. The witness saw movement inside the building and then saw a person walk out holding a bundle under his shirt. The person was wearing dark clothes and had a beanie or hood over his head. The person walked down the street, jumped into some bushes, jumped out wearing different clothes, and continued down the street.
The owner of Postal and Pagers Etc., located at 15928 Perris Boulevard in Moreno Valley, arrived at the business at about 6:00 a.m. to find that the front door glass was shattered. Items were strewn around the inside of the business, and an interior door had been kicked in. Some T-shirts, a deposit bag, and about $5 in pennies were missing. The business’s surveillance videotape showed that the burglar was a Black man with short or no hair, having a large tattoo on his neck and a teardrop tattoo under his eye; the burglar was depicted looking directly into the camera from a distance of only about two feet. The business owner and two officers identified defendant as the person depicted in the video.
On March 25, 2006, the owner was informed of a second burglary at his business. He found the glass door, which had just been repaired, had again been shattered.
B. Count 3
On March 29, 2006, the owner of Moreno Cleaners, located at 23940 Ironwood Avenue in Moreno Valley, was informed by his alarm company that his business had been burglarized. He found three or four rocks near the front door and noticed that the tempered glass on the front door was shattered. The cash drawer containing about $100 had been taken.
C. Count 4
On March 30, 2006, the owner of Rosy’s Beauty Salon, located at 16380 Perris Boulevard in Moreno Valley, arrived to find the glass on the entrance door of her salon smashed. Her cash register containing $260 to $280 was missing.
The owner of a business two doors away from Rosy’s Beauty Salon gave the deputies a surveillance videotape. The videotape showed a silver or gray Malibu or Grand Am circling the parking lot, heading towards the salon, and then toward a storage area. The right rear window of the car was duct taped. A man about six feet tall and wearing a dark hooded sweatshirt was seen walking from a storage area toward the salon. Four or five minutes later, a man was seen walking away with a cash register.
D. Count 5
Also on March 30, Investigator Melvin Rasmussen of the Riverside County Sheriff’s Department responded to a report of a burglary at High Class Nail Salon, located at 25030 Alessandro Boulevard in Moreno Valley. The front door of the business had been smashed, apparently with a rock. Rasmussen found a rock in the back of the salon. About $20 had been stolen from the salon.
After the presentation of evidence, count 6 was dismissed on the motion of the prosecutor.
On April 10, a barber for Hair Professionals, located at 24320 Sunnymead in Moreno Valley, arrived at the business to find that a brick had been thrown through a window; there was glass all over inside the business, and a brick was found inside. Four watches (a “Kobe Bryant” watch, a “Shaq” watch, and two Casio watches), three pairs of sunglasses, a box of candy, and about $15 in coins had been stolen from the business. An officer returned the “Kobe Bryant” and “Shaq” watches later the same day.
F. Count 8
On April 10, a deputy sheriff responded to a report of a burglary at Alpert’s Cleaners, located at 14420 Ellsworth in Moreno Valley. The front door of the business had been smashed. Inside, it appeared that someone had gone through all the drawers, and papers and clothes were strewn over the floor and counters. All three cash registers had been broken, and there was no money in any of them. The deputy found a shoe print on a three-ring binder behind one of the cash registers.
The business’s surveillance videotape showed a Black male walking up to the front of the business, throwing a brick or rock through the front door, and entering the business. He appeared to be bald and was wearing a dark hooded sweatshirt with a lighter interior and white shoes.
A deputy compared the shoe print to the shoes defendant was wearing when he was arrested on April 10 and found that the prints were similar.
G. Count 9
Also on April 10, a deputy sheriff investigated a burglary at Express Nails and Spa located at 14420 Ellsworth Street, Moreno Valley, in the same shopping center as Alpert’s Cleaners. The window of the salon had been smashed; there was glass inside the salon; and some of the drawers at the nail stations appeared to have been opened.
H. Count 10
Also on April 10, the owner of Upper Echelon, a hair salon located next to Express Nails and Spa, found that the front door of his business had been shattered. A large rock was in the back of the salon, and the salon appeared to have been ransacked. The owner could not tell whether anything had been stolen.
I. Count 11
On April 10, the manager of Cali’s Nails, located at 12625 Frederick in Moreno Valley, arrived to find the front glass door broken.
J. Count 12
In April 2006, the owner of Incredible Style Nails, located in the same shopping center as Cali’s Nails, found the front glass door of his business had been broken. She found a rock the size of a volleyball in the back of the salon. More than $1,000, all in $1 and $5 bills, had been taken from the cash register.
The evidence did not show the specific date on which the crime was committed; however, it was alleged to have taken place on or about April 10, 2006.
K. Count 13
On April 10, the manager of Hair Perfect, located in the same shopping center as the businesses burglarized in counts 11 and 12, arrived at the salon to find the front glass door had been smashed. She found a large rock in the back of the salon, and glass and hair products were all over the floor. It appeared that someone had tried to pry the cash box open but had been unable to do so. Some hair products were missing from the salon.
L. Count 14
On April 10, a police officer responded to a burglary call at Bud’s Tire Pro, located at 22510 Allessandro in Moreno Valley. The front glass door of the business had been shattered, and a rock the size of a softball was inside the door. Inside the shop, items near the cash register were out of place, and the cash register was open.
M. Count 15
On April 7, 2006, the manager of the True Beauty Supply, located at 26150 Iris Avenue in Moreno Valley, arrived at the business to find its front glass door broken. He found a large stone inside the store. The cash register appeared to have been forced open, and about $200 had been taken from it. The salon’s surveillance videotape showed a person wearing a dark blue cap or hat, dark clothing, and white shoes.
N. Count 16
On April 7, a corporal from the Riverside Sheriff’s Department responded to a burglary call at Red Persimmon Nails, located at 25910 Iris Avenue in Moreno Valley. He found that the front glass door had been shattered, and a large piece of cement was found inside the salon. A number of quarters were missing from a glass jar in the salon.
O. Defendant’s Arrest
On April 10, Deputy Sheriff Randy Lung was driving around the shopping center where three burglaries had recently been reported. He saw a silver Pontiac Grand Prix with duct tape on a rear window parked at a gas station on Frederick Street. A Black male with a shaved head and wearing white tennis shoes was standing next to the car. The deputy approached the man, later identified as defendant, who consented to a patdown search. The deputy found three wads of money in defendant’s pockets. One wad contained $103, another $74, and the last $198, all mostly in $1 and $5 bills.
The deputy found glass fragments stuck into the rubber soles of defendant’s shoes. A softball-sized rock was under the passenger side of the car, but no similar rocks were elsewhere in the area. The car contained a blue beanie, black jeans, and a jacket. The officers found a couple of watches in the car.
The deputies arrested defendant and placed him in the back of a police car. On the way to the station, defendant asked Lung not to arrest his girlfriend because “she didn’t have anything to do with this.” He continued, “I’ll tell you everything if you let her go,” and he declared, “man, I’m going to go away for the rest of my life for this.”
P. Other Evidence
A detective for the Moreno Valley Police Department testified there had been a rash of burglaries in Moreno Valley between March 22 and April 10, 2006. The burglaries had mostly occurred at night and had been of beauty and nail salons. The points of entry had been rocks thrown through glass, and money generally had been stolen. After April 10, the detective did not see any other burglary reports that matched the trend.
Q. Jury Verdicts and Sentence
The jury found defendant guilty of 15 counts of burglary. In a bifurcated proceeding, the trial court found true the allegation that defendant had suffered a prior strike based on his Louisiana conviction for armed robbery.
The trial court sentenced defendant to 22 years 8 months in prison, consisting of the middle term of two years for count 1, doubled because of the prior strike, plus a consecutive term of one year four months for each of counts 2 through 5 and 7 through 16.
III. DISCUSSION
A. Jury Instructions
Defendant contends that instructing the jury with Judicial Council of California Criminal Jury Instructions CALCRIM No. 376 was error because the instruction permitted the jury to draw an inference of guilt from defendant’s conscious possession of recently stolen property without requiring the jury to determine whether or not he had an explanation for possessing the property.
1. Background
Over defendant’s objection, the trial court instructed the jury 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 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 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 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.”
2. Analysis
Other courts have rejected the argument that CALCRIM No. 376 is defective in failing to require that the defendant’s possession of stolen property be unexplained before a permissive inference of guilt could arise from such possession. In People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson), the defendant challenged the use of CALCRIM No. 376 on the ground, among others, that it “‘misstate[d] the common law permissive inference of guilt of theft from possession of recently stolen property by removing the requirement that such possession must be unexplained.’” (Anderson, supra, at p. 947.) To support his argument, the defendant relied on People v. McFarland (1962) 58 Cal.2d 748 (McFarland)and Barnes v. United States (1973) 412 U.S. 837 (Barnes). The court rejected the defendant’s argument, holding that neither McFarland nor Barnes supported the defendant’s position. The court explained, “In McFarland, the court stated the following rule: ‘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 the light of all the evidence.’ [Citation.] However, before stating the foregoing rule, the state high court in McFarland acknowledged the more general rule that possession of recently stolen property together with other corroborating evidence is sufficient to infer guilt. [Citation.] The court went on to state that a failure to explain or a false explanation of such possession is one type of corroborating evidence. In other words, the court in McFarland did not say that possession must be unexplained to be relevant but that the lack of an explanation for possession is one type of corroborating evidence sufficient to support a conviction. [Citation.]
“In Barnes, the jury was instructed that ‘“possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.”’ Citation. The United States Supreme Court found no problem in this instruction, which permitted an inference of guilt from unexplained possession. In other words, as in McFarland, possession of recently stolen property coupled with a lack of explanation is sufficient to support conviction. However, the court did not say this was the only acceptable type of corroborating evidence.” (Anderson, supra, 152 Cal.App.4th at p. 948; see also People v. Williams (2000) 79 Cal.App.4th 1157, 1173 [holding that CALJIC No. 2.15, which is substantially similar to CALCRIM No. 376, properly permitted the jury to draw an inference of guilt when the defendant consciously possessed stolen property, and there was “additional corroborating evidence”]; People v. O’Dell (2007) 153 Cal.App.4th 1569, 1577 [holding that CALCRIM No. 376 did not infringe on a defendant’s constitutional rights so long as the jury found some slight corroborating evidence].)
We agree with and adopt the reasoning and conclusion of the courts in Anderson, People v. Williams, and People v. O’Dell
Here, corroborating evidence was more than just slight — it was overwhelming. With respect to counts 1 and 2, defendant was identified from a surveillance videotape. When the officers encountered defendant on April 10 in the area where several burglaries had recently occurred, he was standing next to a car that matched the car seen in the videotape driving towards Rosy’s Beauty Supply the night it was burglarized. In particular, the car seen in the videotape and defendant’s car had duct-taped windows. Moreover, the officers found a rock under the passenger side of defendant’s car, but there were no similar rocks in the area; rocks had apparently been used to break glass doors or windows in most of the break-ins. The officers found a blue beanie, black jeans, and a jacket in defendant’s car; that clothing matched the videotape depictions and a witness’s description of the clothing worn by the person who had committed the burglaries. The police found glass fragments embedded in the soles of defendant’s shoes; broken glass had been found on the floors of the burglarized businesses. Once in the police car, defendant pleaded with the officers to let his girlfriend go because “she didn’t have anything to do with this.” He further told the officers, “man, I’m going to go away for the rest of my life for this.” We therefore conclude there was no error in instructing the jury with CALCRIM No. 376.
Moreover, any error in the instruction was not prejudicial. Even if the instruction had specifically included language stating that unexplained possession of recently stolen property was required, as defendant argues, the outcome of defendant’s trial would not have been any different. First, with respect to at least counts 8, 9, 10, 11, 14, and 16, defendant was not found in possession of any stolen property that could be specifically associated with the break-ins that underlay those counts. Thus, CALCRIM No. 376, on its face, did not apply to those counts. The jury was instructed, “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” The jury was further instructed, “Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.” We presume the jury understood and followed those instructions. (People v. Adcox (1988) 47 Cal.3d 207, 253.)
Defendant concedes that any instructional error did not prejudice him on counts 1, 2, 7, or 8 (the March 22 and March 25 burglaries of Postal and Pagers Etc. and the April 10 burglaries of Hair Professionals and Alpert’s Cleaners. He argues, however, with respect to other counts, that “there was no evidence of anything stolen, nor were there any prints, video, or physical evidence,” and “[t]he only thing that tied [defendant] to these crimes was the broadly similar locations (the same city), broadly similar times of entry (night), and the mode of entry through broken glass frontage . . . .”
The evidence showed more than “broadly similar locations;” rather, the burglaries for the most part occurred in a tightly clustered area — for example, the break-ins involved in counts 9 (Express Nails and Spa) and 10 (Upper Echelon) occurred in the same shopping center and on the same night as the break-in involved in count 8. The two burglaries committed on April 7, 2006 (counts 15 and 16) took place at businesses only a few doors away from each other — at 26150 Iris Avenue and 25910 Iris Avenue, respectively. As set forth above, the evidence against defendant on each count was overwhelming, and the verdict would have been the same even if the jury had been instructed in conformity to defendant’s argument.
B. Prior Strike Allegation
1. Background
The prosecution alleged defendant had suffered a strike prior stemming from a Louisiana conviction for armed robbery. In a bifurcated proceeding, the trial court found the allegation to be true.
In support of the allegation, the prosecution produced four documents. First, the prosecution produced a charging document stating that on July 16, 1992, defendant “while armed with a dangerous weapon, to wit: a GUN, robbed BOBBIE JEAN MALONEY of an AUTOMOBILE.” Second, the prosecution produced a master docket printout indicating that defendant changed his plea on November 6, 1992, to an armed robbery charge to “guilty as charged.” Third, the prosecution produced a minute order dated November 6, 1992, stating that defendant pled guilty in return for a term of five years; however, the document does not clearly state as to what defendant pled guilty. Finally, the prosecution produced a commitment order informing the sheriff that on November 6, 1992, defendant was convicted of violating “R.S. 14:64” and was committed for five years.
2. Analysis
For a conviction in a foreign jurisdiction to qualify as a strike offense in California, it must have involved conduct that would constitute a serious felony in California. (People v. Avery (2002) 27 Cal.4th 49, 53.) The trial court may review both the least adjudicated elements of the foreign crime and the entire record of conviction to ascertain whether the defendant’s conduct in committing that crime would qualify as a strike in California. (People v. Woodell (1998) 17 Cal.4th 448, 452, 455.)
We first examine the statutory elements of the crime. Robbery is a strike offense for purposes of California’s “Three Strikes” law (§ 1192.7, subd. (c)(19)), as is “any felony in which the defendant personally uses a firearm” or “any felony in which the defendant personally used a dangerous or deadly weapon” (§ 1192.7, subds. (c)(8) & (23).) In California, “[r]obbery is defined as the taking of personal property of some value, however slight, from a person or the person’s immediate presence by means of force or fear, with the intent to permanently deprive the person of the property.” (People v. Marshall (1997) 15 Cal.4th 1, 34; § 211.) However, in Louisiana, “Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” (La. R. S. 14:64 (2007).) On its face, the Louisiana statute defines a general intent crime — armed robbery under Louisiana law omits the element of specific intent to permanently deprive the victim of property that is required in California. (In re Albert A. (1996) 47 Cal.App.4th 1004, 1007.) Thus, a Louisiana armed robbery conviction cannot, without more, establish a strike under California law. Here, as the People concede, the record of conviction does not reveal conduct amounting to a strike under California law.
Moreover, the fact that the Louisiana conviction was for armed robbery is also unavailing. California law requires the use of a gun or dangerous weapon in the commission of a felony to make the offense a serious felony. (See People v. Rodriguez (1998) 17 Cal.4th 253, 261, superseded by statute on other grounds as stated in People v. Luna (2003) 113 Cal.App.4th 395, 397.) In contrast, the Louisiana armed robbery statute requires merely that the defendant was armed with a gun, not that he used the gun. Again, however, the record of conviction does not reveal any conduct that would make defendant’s prior conviction a strike under California law.
We will therefore reverse the true finding on the prior strike allegation and remand the matter for retrial on that allegation and/or for resentencing. (People v. Monge (1997) 16 Cal.4th 826, 845.) Upon remand, the trial court may consider a preliminary hearing transcript, if one exists, or may take judicial notice of and examine the entire trial court file relating to the prior offense. (People v. Reed (1996) 13 Cal.4th 217, 230.)
IV. DISPOSITION
The true finding on the prior strike allegation is reversed, and the matter is remanded for retrial on that allegation and/or for resentencing. In all other respects, the judgment is affirmed.
We concur: RICHLI, J., MILLER, J.