Opinion
B160562.
7-2-2003
THE PEOPLE, Plaintiff and Respondent, v. ESTEBAN LUNA LUJANO, Defendant and Appellant.
Diana M. Teran, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Deborah J. Chuang and Myung Park, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Esteban L. Lujano appeals from the judgment entered following a jury trial that resulted in his convictions for second degree robbery and second degree burglary of a vehicle. Lujano was sentenced to a prison term of 11 years.
Lujano contends the trial court prejudicially erred by: (1) instructing the jury with a modified version of CALJIC No. 2.15; (2) failing to instruct on constructive possession; and (3) instructing with CALJIC No. 17.41.1. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. Peoples evidence.
Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 971 P.2d 618), the evidence established the following. Antonio Lopez lived with his 18-year-old son, Anthony Lopez, in San Pedro. At approximately midnight on January 11, 2002, Lopez returned from work and parked in his driveway, listening to a compact disc he had just purchased. Anthonys Buick was parked on the street in front of the house. A red car that Lopez did not recognize was parked in front of a neighboring house two doors away. Lopez noticed that three men, later identified as Lujano, Julio Saavedra, and Jose Medina, were inside Anthonys Buick. As Lopez watched, one of the men attempted to pry the trunk open with an object.
For ease of reference, we will hereinafter refer to Antonio Lopez as "Lopez" and to Anthony Lopez by his first name.
Lopez testified that the car was a Honda. Anthony and a police officer testified that it was a Nissan.
Lopez used his cellular telephone to call Anthony, who was inside the house sleeping, but received no response. He called 9-1-1, but was placed on hold and hung up. Lopez saw the three men emptying Anthonys backpack and stuffing it with stereo equipment, speakers, and items that had been in Anthonys glove box. When the men walked off with Anthonys full backpack, Lopez confronted them and asked what they were doing. Saavedra swung Anthonys backpack at Lopez, hitting and dislocating Lopezs arm and causing the stolen stereo equipment to fall to the ground. Lopez fought with Medina and Saavedra. Lujano, who had run off, returned and assisted Medina and Saavedra. Lopez, realizing that he could not fight all three men, ran to his home with the assailants in pursuit. Lopezs screams for help awakened Anthony. Upon seeing Anthony, the three assailants fled to the red car, attempting to pick up some of the stolen items as they went. They left the backpack and its contents on the street.
DISCUSSION
1. Any error in instructing with a modified version of CALJIC No. 2.15 was harmless.
Over Lujanos objection, the trial court instructed the jury with a modified version of CALJIC No. 2.15, as follows: "If you find that a suspect was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the suspect is guilty of the crime of robbery Lopez and Anthony pursued the robbers in Lopezs truck. Lopez again called 9-1— 1 and was again placed on hold. The red car eventually crashed into a brick wall. Lopez and Anthony stopped and attempted to apprehend the culprits. Lujano and Anthony struggled briefly. Lujano, Medina and Saavedra escaped but were apprehended by police shortly thereafter. Saavedra was apprehended while trying to scale a fence. Medina and Lujano were found lying behind a retaining wall.
In a field lineup, Lopez identified Lujano, Saavedra, and Medina as the persons who had been in the Buick. Anthony also identified all three men as the assailants. At trial, both Lopez and Anthony identified Lujano. A crowbar and a screwdriver were found in the red car. A pair of sunglasses found in Saavedras pocket belonged to Anthony.
b. Defense evidence.
Medina, who had pleaded guilty to the robbery prior to trial and was serving time in jail, testified for the defense. He admitted breaking into Anthonys car but claimed that Lujano did not participate. According to Medina, Medina and Saavedra were at the beach in San Pedro and were looking for a ride home. They became lost and encountered a man named "Alonzo," who was walking alone. Neither Saavedra nor Medina had met Alonzo previously. They asked Alonzo what the street address was, and at approximately 10:00 p.m., Saavedra called Lujano and arranged for Lujano to give the men a ride home. After Medina, Saavedra, and Alonzo waited for Lujano for approximately one half hour, they became worried he would not show. Alonzo, Saavedra, and Medina decided to break into Anthonys Buick. When Lopez appeared and struggled with them, Alonzo disappeared. Lujano happened to drive up while Saavedra and Medina were attempting to flee. They ran to Lujanos car and told him "just to go." Lujano drove off as requested, but lost control of the car and crashed. Because Lopez was still following them and purportedly had a gun, Medina, Lujano, and Saavedra exited Lujanos car and hid in the yard of a nearby house. Medina, Saavedra, and Alonzo did not have a screwdriver or a pry bar; these items were in Lujanos car. Two days after the incident, Medina informed a police detective that Lujano "didnt know anything."
2. Procedure.
Trial was by jury. Lujano was tried alone and was convicted of the second degree robbery of Lopez (Pen. Code, § 211 ) and second degree burglary of a vehicle (§ 459). Lujano admitted allegations that he had suffered a prior conviction for assault with intent to commit a felony (§ 220), a serious felony (§§ 667, subd. (a)(1), subds. (b) — (i), 1170.12, subds. (a) — (d)). The trial court denied Lujanos motions to strike the prior conviction allegation and for a new trial. It sentenced Lujano to a term of 11 years in state prison and imposed restitution and parole revocation fines. Lujano appeals. or burglary. Before guilt may be inferred, there must be corroborating evidence tending to prove defendants guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. [P] As corroboration, you may consider the attributes of possession — time, place, and manner, that the suspect had an opportunity to commit the crime charged, the suspects conduct, his false or contradictory statements, if any, and other statements he may have made with reference to the property, and any other evidence which tends to connect the suspect with the crime charged." (Italics added.) The trial court substituted the word "suspect," where italicized, for the word "defendant" in the standard jury instruction.
All further undesignated statutory references are to the Penal Code.
The evidence showed that Saavedra was in conscious possession of Anthonys sunglasses. There was, however, no evidence that Lujano personally possessed stolen property. The effect of the modified version of CALJIC No. 2.15 was to allow the jury to consider Saavedras possession of the sunglasses as evidence of Lujanos guilt. This, by itself, was correct; the evidence that Lujano was caught minutes after the robbery with a person who possessed property stolen from the Buick was strong circumstantial evidence of Lujanos guilt. However, modified CALJIC No. 2.15 went beyond this to tell jurors that if they found Saavedra consciously possessed recently stolen property, only slight corroborating evidence was necessary to convict Lujano of the offenses.
CALJIC No. 2.15 has repeatedly been upheld when applied to a defendants own possession of recently stolen property. (E.g., People v. Smithey (1999) 20 Cal.4th 936, 977-978, 978 P.2d 1171; People v. Holt (1997) 15 Cal.4th 619, 676-677, 937 P.2d 213; People v. Williams (2000) 79 Cal.App.4th 1157, 1173-1174; People v. Hernandez (1995) 34 Cal.App.4th 73, 81; People v. Gamble (1994) 22 Cal.App.4th 446, 454-455.) However, the People do not point us to any authority applying CALJIC No. 2.15 when the possessor of the stolen property is not the defendant, but the defendants companion.
Assuming, however, that the use and modification of CALJIC No. 2.15 was error on the facts presented, we conclude it was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) First, CALJIC No. 2.15 is a "permissive, cautionary instruction which inures to a criminal defendants benefit by warning the jury not to infer guilt" merely from the possession of stolen goods, without some corroborating evidence. (People v. Barker (2001) 91 Cal.App.4th 1166, 1174; People v. Mendoza (2000) 24 Cal.4th 130, 176 [CALJIC No. 2.15 is generally favorable to a defendant].)
Second, instructions are not considered in isolation. "Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt, supra, 15 Cal.4th at p. 677.) The jury was advised that it must consider the instructions as a whole. It was instructed on the burden of proof, aiding and abetting, and the elements of the charged crimes. It was expressly told that each of the elements of the crimes must be proven. There is no likelihood that jurors would have disregarded these instructions and read CALJIC No. 2.15 to suggest that they could find Lujano guilty even if they did not find all the statutory elements of the offenses had been proven beyond a reasonable doubt. (Id. at p. 677.)
Third, and most significantly, we do not discern any possible harm from the use of the instruction in the particular factual context presented here. Far more than slight corroborating evidence was presented by the People. Both Anthony and Lopez unequivocally identified Lujano at trial and in a pretrial field lineup. Just after the crimes, Lujano was found hiding with a person who, by his own evidence, admittedly committed the burglary. Contrary to Medinas testimony, Lopez saw the red car parked on the street before the burglars fled from him, contradicting Medinas story that Lujano drove up just in time to give the burglars a lift as they were fleeing. Lopez clearly saw three people in Anthonys car; the third person had to have been either Lujano or the mysterious Alonzo. Medinas testimony about Alonzo was incredible. The possibility that he and Saavedra would meet a perfect stranger in an unfamiliar neighborhood late at night, accompany him for one half hour for no apparent reason, and then decide to break into a car with the stranger as an accomplice, strains credulity. Lopez saw the burglars use an object to attempt to pry the trunk open, and a crowbar and screwdriver were found in the red car. According to Lujanos own witness, these items — the only ones found that could plausibly have been used to pry the trunk — were in Lujanos car, suggesting Lujano must have been present and participating in the burglary. Lujanos own witness Medina admitted that he and Saavedra committed the burglary and Lujano drove them from the scene. In short, the key question for the jury was not whether there was more than slight evidence sufficient to prove Lujanos guilt; instead, it was the credibility of the witnesses, i.e., whether Lopez and Anthony, or Medina, were telling the truth. CALJIC No. 2.15 had no bearing upon that question. Under these circumstances, the use of the modified instruction, even if error, was harmless beyond a reasonable doubt.
2. The trial courts error in failing to instruct on constructive possession was harmless.
Lujano next asserts that the trial court prejudicially erred by failing to instruct the jury that in order for Lopez to be a victim of robbery, he must have had constructive possession of the property, i.e., a legally recognized interest in it. We agree the trial court erred, but conclude the error was harmless beyond a reasonable doubt.
Robbery is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211; People v. Nguyen (2000) 24 Cal.4th 756, 759.) A robbery also occurs when the defendant uses force or fear in resisting attempts to retake the property before the robbery is complete. (People v. Estes (1983) 147 Cal. App. 3d 23, 27-28, 194 Cal. Rptr. 909 [defendant held to have committed robbery where he forcibly resisted a store security guards efforts to retake the property outside the store].) Section 211 "limits victims of robbery to those persons in either actual or constructive possession of the property taken." (People v. Nguyen, supra, 24 Cal.4th at p. 764.) "Constructive possession depends upon a special relationship with the owner of the property . . . ." (Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 484.) "The requirement that the property be taken from the possession of another may be established only by proving the victim has a legally recognizable interest in the property or actually possessed it." (People v. Galoia (1994) 31 Cal.App.4th 595, 599, fn. 1.) It is not necessary that the robbery victim be the owner of the property. (People v. Estes, supra, 147 Cal. App. 3d at p. 26; People v. Moore (1970) 4 Cal. App. 3d 668, 670, 84 Cal. Rptr. 771.) However, the victim must be more than a mere Good Samaritan who attempts to thwart the robbery or a mere visitor to a business from which property is taken. (People v. Nguyen, supra, 24 Cal.4th at pp. 760-761 ; People v. Galoia, supra, 31 Cal.App.4th at pp. 597-598;Sykes v. Superior Court, supra, 30 Cal.App.4th at pp. 481— 484.)
Here, the trial court did not instruct the jury on constructive possession. The People assert that because Lujano failed to request a constructive possession instruction below, he is precluded from raising the issue on appeal. We disagree. It is settled law that, even in the absence of a request, a trial court is charged with instructing the jury on those general principles of law closely and openly connected with the facts that are necessary for the jurys understanding of the case. ( People v. Breverman (1998) 19 Cal.4th 142, 154, 960 P.2d 1094; People v. Montoya (1994) 7 Cal.4th 1027, 1047, 874 P.2d 903.) The omitted instructions are of this nature and therefore Lujanos contention is not waived.
The People concede that, if the issue is not waived, the trial court erred by failing to instruct on constructive possession. We agree. Therefore, we consider whether the error was harmless. We conclude that it was. Parents constructively possess the property of an adult child living in their home. People v. Gordon (1982) 136 Cal. App. 3d 519, 186 Cal. Rptr. 373, is instructive. In Gordon, robbers entered the Lopes residence, bound and threatened Mr. and Mrs. Lopes, and then took from their adult sons bedroom a bag containing cash and marijuana. (Id. at pp. 523-524; see also People v. Nguyen, supra, 24 Cal.4th at pp. 761— 762.) There was no evidence that the parents physically possessed the bag. Both parents denied knowledge of the marijuana, and neither was questioned regarding the cash. The evidence was held sufficient to support the defendants robbery convictions, however, because "the jury determined the parents possessed these personal items of their adult son for purposes of the robbery statute and were therefore appropriately designated as victims of the robbery." (People v. Gordon, supra, at p. 529.) Gordon explained that courts had repeatedly held persons responsible for protecting and preserving property had properly been designated as robbery victims, including a purchasing agent, store clerks, a barmaid, janitors, watchmen, and gas station attendants. (Id. at p. 529.) Clearly, Gordon held, if these individuals "were responsible for the protection and preservation of the property entrusted to them, parents have at least the same responsibility to protect goods belonging to their son who resides with them in their home." (Ibid.)
Here, had the jury been properly instructed, it would assuredly have found Lopez constructively possessed Anthonys property. Lopez, the robbery victim, was Anthonys father. Anthony, who had recently turned 18, lived with Lopez. Lopez immediately tried to call Anthony when he discovered the group in Anthonys car, and turned to Anthony for help when he was attacked. Lopez also testified he initially assumed the persons in the Buick were Anthony and his friends, and he intended to tell them go inside because he did not want Anthony to be out so late. These facts unequivocally showed that the parental relationship between Anthony and Lopez was intact and that Lopez was protective of Anthony. From this, the jury would logically have inferred that Lopez, as a parent, had the responsibility to protect his sons property and therefore had constructive possession. Indeed, the contrary proposition — that Lopez should have stood by passively while Anthonys car was burglarized and property stolen — is not tenable. Even assuming arguendo the Chapman standard is applicable (Chapman v. California, supra, 386 U.S. 18), the error was harmless beyond a reasonable doubt.
Lujano attempts to distinguish Gordon on two grounds. First, Lujano argues that the issue in Gordon was whether the evidence was sufficient, not whether the jury had been properly instructed. While Lujano is correct, Gordons holding that parents have a responsibility to protect goods belonging to their son who resides with them in their home is applicable here.
Second, Lujano argues that "while it is reasonable and logical to hold that a parent is in constructive possession of items within his house, the same is not true of items outside of the home." We believe that on the facts of this case, this is a distinction without a difference. The relevant question is whether a father has the responsibility to protect the property of his child who lives with him. There were no facts suggesting the absence of such a responsibility. We do not believe the circumstance that the items were in the car which was parked in front of the house is significant, given that Anthony lived in the house. Gordons analysis was not based upon the stolen items location, but on the notion that parents have a responsibility to protect goods belonging to their son who resides with them. (People v. Gordon, supra, 136 Cal. App. 3d at p. 529.) The same is true here.
3. The trial court did not prejudicially err by instructing the jury with CALJIC No. 17.41.1.
Lujano finally argues that the trial court erred by instructing the jury with CALJIC No. 17.41.1. Lujano contends that CALJIC No. 17.41.1 was coercive and violated his rights to an impartial jury and a unanimous verdict. Lujano acknowledges that his contentions were rejected in People v. Engelman (2002) 28 Cal.4th 436, but raises the issue to preserve it for further appeal. As Lujano recognizes, we are bound to follow Engelman and reject this contention.
That instruction, as provided to the jury, read: "The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P.J., and KITCHING, J.