Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF131168, Elisabeth Sichel, Judge.
Lauren E. Eskenazi, 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, Steve Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant of receiving stolen property (Pen. Code, § 496, subd. (a)), burglary of a motor vehicle (§ 459) and falsely identifying oneself to a police officer (§ 148.9, subd. (a)). In bifurcated proceedings, the trial court found true allegations that defendant had suffered two prior convictions for which he served prison sentences (§ 667.5, subd. (b)). He was sentenced to prison for four years. He appeals, claiming insufficiency of the evidence and instructional error. We reject his contentions and affirm, while directing the trial court to correct errors in the abstract of judgment.
All further references are to the Penal Code unless otherwise indicated.
Facts
Sometime after 7:00 a.m. on July 10, 2006, the left rear window of a Moreno Valley man’s locked Nissan, which was parked in his driveway, was smashed, the car’s navigation and DVD system were pulled out of the dashboard and were hanging on by a piece of metal, and the man’s cell phone was taken from inside the car. The car’s security system, which sounded an alarm when a door opened, had been activated by the man when he parked his car. Defendant was charged with burglary for this. Around 9:00 a.m. the same morning, about one-fourth of a mile away, a neighbor witnessed defendant trying to open the doors of two vehicles that were parked in the driveway of a Moreno Valley woman’s home. Defendant was successful with the second car and got inside. The neighbor watched as defendant later emerged from the car with a car radio, which looked like it had been pulled out of the dashboard, under his arm. The owner of the car testified that when she subsequently saw her car, she noticed that the stereo had been removed and the papers in her glove box had been disturbed. Defendant was charged with receiving stolen property for this. Around 9:30 a.m., defendant was pulled over by the police a short distance from the woman’s home. The stereo taken from the woman’s car was on the back seat of the car defendant was driving and the cell phone taken from the man’s car was on the front passenger seat. Defendant identified himself to the arresting officer and to the officer who booked him by a name other than his own.
The car’s owner testified that he parked the car at 7:00 a.m. and went to sleep at 8:00 a.m. Because he did not hear the window of his car break, it is likely that this occurred after he fell asleep at 8:00 a.m.
Defendant presented no evidence at trial.
Issues and Discussion
1. Insufficient Evidence That Defendant Burglarized the Man’s Car
Defendant contends there was insufficient evidence presented at trial that he was the one who burglarized the man’s car. We disagree. Not only did the police find the “spoils” of that burglary in defendant’s possession within a short period of time after the crime had been committed, the method defendant employed to commit the crime was strikingly similar to the one he used to enter the woman’s car, for which there was overwhelming evidence of defendant’s involvement. The latter constitutes the “other evidence that tends to connect the defendant to the crime charged” which defendant asserts must be present as “slight corroboration” of his “highly incriminating” possession of recently stolen property, i.e., the cell phone. The fact that defendant was forced to smash the window of the man’s car in order to avoid setting off his burglar alarm, but was able to enter the woman’s car merely by opening the door does not, as defendant contends, mean that there was not a shared modus operandi between the two crimes. The crimes were strikingly similar. Both occurred during the early morning hours, in Moreno Valley residential neighborhoods, in the owner’s driveways and one of the targets of both was the car’s sound system.
There were four vehicles parked in the woman’s driveway. When defendant was unsuccessful at getting into the first, he went to the second and obtained entry. There was no evidence of such an option at the man’s house, which explains why the window had to be broken to get inside. However, contrary to defendant’s assertion, this did not make the crimes dissimilar to each other.
2. Jury Instructions
a. Possession of Recently Stolen Property
Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 376 provides, “If you conclude that the defendant knew (he/she) possessed property and you conclude that the property had in fact been recently (stolen/extorted), you may not convict the defendant of ____ . . . based on those facts alone. However, if you also find that supporting evidence tends to prove (his/her) guilt, then you may conclude that the evidence is sufficient to prove (he/she) committed ____ . . . . [¶] 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/her) guilt of ____ . . . . [¶] [You may also consider whether ____ . . . .] [¶] 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.”
A version of this instruction pertinent to the charged possession of stolen property was given, however, a version pertinent to the charged burglary, stating that defendant’s possession of property stolen in that burglary, alone, was insufficient to prove he committed the burglary, was not. Defendant asserts that the trial court had a sua sponte duty to give the latter, citing People v. Clark (1953) 122 Cal.App.2d 342, 346 and People v. Smith (1950) 98 Cal.App.2d 723, 730. As the People correctly point out, in Clark, the People conceded there was such a duty, based on the holding in Smith. (People v. Clark, supra, 122 Cal.App.2d at p. 346.) In Smith, the trial court instructed the jury, “‘. . . [T]he method by which the People undertake to prove [that the defendant entered the building with intent to commit theft] is by showing . . . that this typewriter was in [the burglarized] building at a certain time, and that thereafter was in the defendant’s possession [and] was sold by him, at least disposed of, and under the various circumstances shown in the evidence . . . .’” (People v. Smith, supra, 98 Cal.App.2d at p. 729.) The instruction in Smith went a step further than what had been created here by the absence of a burglary-version of CALCRIM 376. Moreover, neither Smith nor Clark binds us, and, as the parties agree, the matter is currently pending before the California Supreme Court. (People v. Najera (2006) 135 Cal.App.4th 1125 [37 Cal.Rptr.3d 844], review granted April 26, 2006, S141654.)
However, we will assume, for purposes of this discussion only, that there is, indeed, a sua sponte duty on the part of the trial court to give CALCRIM No. 376 for all theft crimes. Defendant asserts that under state law, reversal of his burglary conviction is appropriate if it is reasonably probable that the jury would have reached a more favorable result had it received the missing instruction. We conclude that there is no such reasonable probability, in light of the evidence corroborating defendant’s guilt of the burglary, as already discussed. The fact that defendant was not the registered owner of the car containing the cell phone which the female victim’s neighbor saw him driving and which he was driving when stopped by the police is of no moment. Whoever the registered owner was, it was defendant who was seen driving the car around the time of both offenses. Also of no consequence is the fact that latent prints taken from the man’s car were useless for purposes of comparing them to the fingerprints of any person. Defendant overstates this fact by asserting that his prints were not found on the car. Defendant also attaches significance to the fact that when he was stopped, he was not found in possession of any instrument by which he could have smashed the window of the man’s car. However, the man’s car window was broken while it was parked in his driveway. Defendant could have picked up a rock, brick or any number of other items commonly found in a yard or could have used an instrument that he discarded before being pulled over by the police. The owner of the car testified that he saw blood on the back of his driver’s seat and defendant points out that there was no evidence that he had sustained any injuries. However, there was also no evidence that someone had done a thorough examination of defendant’s hands and found no injuries. The fact that the police found no shattered glass on defendant or in his car merely shows that if defendant had any on his person (there is no reason to believe there would be any in his car) he got rid of it before being pulled over by the police. Finally, defendant’s assertion that some unknown person smashed the man’s car window, defendant just happened to come along after and took the cell phone from inside is based on pure speculation.
The only evidence on the matter was the testimony of the arresting officer that he did not notice any cuts or injuries on defendant. (Italics added.)
Likening the trial court’s failure, sua sponte, to apply CALCRIM No. 376 also to the burglary charge to instructing a jury that it had to impose a 40-year sentence, when it actually had the discretion to impose a 10-year term, defendant asserts that the error here was also a federal due process violation, requiring reversal of his conviction absent proof beyond a reasonable doubt that it did not contribute to it. He provides no persuasive argument nor cites any authority for his premise and we disagree with it. Rather, for an instructional error to rise to the level of a federal due process violation, it has to have so infected the entire trial that the resulting conviction violates due process. (Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385].) This did not.
Defendant also asserts that the failure of the trial court, sua sponte, to apply CALCRIM No. 376 to the burglary lessened the prosecution’s burden of proof or “amounted to an improper mandatory presumption of guilt.” However, much like in the cases where the trial court fails to properly instruct on the need for accomplice corroboration, if corroboration is present, the error does not require reversal. So, too, here, there was sufficient evidence, aside from defendant’s mere possession of the cell phone, to convict him of that offense.
b. Tampering
The jury was given the following written instruction, “If all of you find that the defendant is not guilty of a charged crime, you may convict him of a lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. [¶] Now I will explain to you which crimes are affected by this instruction: [¶] Tampering with a vehicle is a lesser crime of vehicle burglary with the intent to commit theft, as charged in Count 2. [¶] You must consider the charged crime and decide whether the defendant is guilty or not guilty. [¶] I can only accept a guilty verdict on a lesser crime if you all agree that the defendant is not guilty of the charged crime and give me a signed verdict form of not guilty for the charged crime. [¶] You will receive verdict forms for all of the charged crimes and the lesser crime. You can consider the charged crimes in any order you wish. If all of you are convinced beyond a reasonable doubt that the defendant is guilty of the greater crime, do not fill out or sign a verdict form for the crime tha[t] is lesser than that crime. Give the unused forms back to me unsigned. [¶] If all of you find the defendant not guilty of a greater crime, but conclude that he is guilty of a lesser crime, indicate your verdict for that lesser crime on the appropriate verdict form and give the form for that lesser crime to me after the foreperson has signed it. [¶] If all of you cannot agree about whether the defendant is guilty or not guilty of a greater crime, inform me about your disagreement and do not fill out any verdict form. [¶] If all of you agree that the People have not proved that the defendant committed a greater or lesser crime, then complete the verdict form stating that he is not guilty of that crime.”
However, the jury was not given this instruction orally by the court.
Additionally, the jurors were not given either a written or oral instruction defining the elements of tampering with a vehicle, and despite being told in the written instruction that they would be given a verdict form for this offense, they were not. Nor was that offense mentioned in the oral and written instructions about the union of act and intent for each offense, which defendant, himself, requested.
The trial court had, on its own motion, intended to give the instruction but changed its mind and decided not to give it because there was no evidence that the man’s car had not been broken into. Therefore, the jury should not have been given the written instruction which made reference to tampering as a lesser included offense of the charged vehicle burglary. We disagree with defendant’s assertion that the jury should have been instructed on the elements of vehicle tampering because it had erroneously been given this written instruction.
Defendant contends that the trial court’s conclusion that there was insufficient evidence to support instructions on vehicle tampering as a lesser included offense of the charged burglary was improper because “there was very little evidence linking [him] to the . . . burglary other than [his] possession of the [man’s] cell phone. . . . [T]he possession of [the] cell phone equally supports a tampering charge where the evidence tended to show that [defendant] did not smash [the man’s] car window, and, therefore, did not forcibly enter [the man’s] car.” We have already rejected the assertion that there was little evidence linking defendant to the burglary other than his possession of the cell phone. Therefore, we cannot agree with defendant that there was an evidentiary basis for the giving of an instruction on tampering.
Thus, defendant appears to agree with the trial court’s conclusion that where there is no evidence to raise a reasonable doubt that the vehicle was locked, instruction on tampering is inappropriate. (See People v. Mooney (1983) 145 Cal.App.3d 502, 506.)
The only error left is the inclusion, in the written instructions, of the instruction that tampering was a lesser included offense to the charged burglary. The jury did not ask the trial court why it was not given a verdict form for this offense as the instruction stated it would be. Therefore, we can only assume that it either ignored the instruction, or unanimously agreed that defendant was guilty of burglary and, consequently, did not need to consider tampering. In either event, the error was nonprejudicial.
We, therefore, also reject defendant’s contention that the written instruction somehow improperly suggested the order in which the jury consider vehicle tampering and vehicle burglary.
Disposition
The trial court is directed to amend the abstract of judgment to show that this was a jury, not a court, trial, as the abstract currently states. The trial court is further ordered to amend the abstract and the minutes of the sentencing hearing to show that the trial court imposed a two-year midterm sentence on count 2 and a concurrent two-year midterm sentence on count 1, not the other way around, as the abstract and minutes currently state. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J., KING J.