Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF131847. Roger A. Luebs, Judge.
Peter Dodd, 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 Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant guilty of unlawful receipt of a stolen vehicle by a person with a prior conviction for vehicle theft. (Pen. Code, § 666.5, subd. (a).) In a bifurcated proceeding, the trial court found true that defendant had suffered five prior prison term convictions. (§ 667.5, subd. (a).) Defendant was sentenced to a total term of seven years in state prison.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) the definition of reasonable doubt found in Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 220 violated his due process right; (2) the jury instruction on evaluating conflicting evidence found in CALCRIM No. 302 improperly states the law and undermines the presumption of innocence; (3) the trial court erred in instructing the jury pursuant to CALCRIM No. 376 (Recently Stolen Property as Evidence of a Crime); and (4) the abstract of judgment must be corrected to reflect the oral pronouncement of judgment as it relates to the imposition of the cost of the presentence probation report. We agree that the abstract of judgment and the court’s minute order of the sentencing proceeding must be amended but reject defendant’s remaining contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Sean Landess was the owner of a 1986 Toyota 4-Runner, which was reported stolen on May 6, 2004. On May 15, 2004, about 8:55 a.m., Riverside County Sheriff’s Deputy Martin Kennedy was dispatched to a vacant lot in Rubidoux, where he saw defendant wiping down the 4-Runner. Deputy Kennedy detained defendant.
When informed that the 4-Runner was reported stolen, defendant stated that he had purchased the vehicle and had a bill of sale for it. A search of the 4-Runner revealed clothes and personal effects, plus a bill of sale written on Winnie the Pooh stationery and a Department of Motor Vehicles (DMV) temporary operating permit document. The bill of sale related that “Martin Perez” had sold the 4-Runner to “Sharon Long” on May 6, 2004, for $1,000, which was paid in full. The DMV document was faded and was for a commercial vehicle. The DMV temporary operating permit was issued on May 3, 2004 (three days before the 4-Runner was stolen) and appeared to be forged.
The parties stipulated that the writing on the bill of sale was that of Sharon Long.
Deputy Kennedy saw no evidence that the 4-Runner had been “hot-wired” or that the ignition had been “punched.” He did however find a “shaved” Toyota key on defendant’s key chain. The shaved Toyota key was able to start the 4-Runner. Deputy Kennedy opined that, based on his experience, automobile thieves use a shaved key to steal vehicles.
Defendant’s girlfriend Sharon Long was located in a nearby van. She explained that in March 2004 she began dating defendant and had purchased the vehicle from Martin Perez in May 2004. In payment, she gave Perez a Toyota pickup plus $1,000 cash. Defendant was present when the transaction took place. Long asked Perez for title to the car, but he never gave her one. She did not notice that the Toyota key given to her by Perez was shaved. Long drove the 4-Runner to the vacant lot and indicated that defendant never drove the vehicle. On the day of the arrest, Long claimed that she had given the car key to defendant so that he could load it up to go to a swap meet. Long confirmed that she had written up the bill of sale but asserted that Perez had signed it. The parties, however, stipulated that Perez’s purported signature was actually Long’s.
Martin Perez, who had two prior automobile theft convictions, testified that he was an acquaintance of both defendant and Long and that he had never owned the 4-Runner. He explained that his modus operandi was simply to steal cars to “joy ride” in them, not to sell them. He also stated that he had never loaned, sold, or given the vehicle to defendant or Long and that he had never seen either the bill of sale or the DMV temporary operating permit relating to the vehicle. Perez further explained that none of the writing on the bill of sale was his.
A DMV employee related that the Toyota 4-Runner was registered to Landess at the time of the theft, and that it had never been registered to defendant, Long, or Perez. She noted numerous discrepancies between the recovered temporary operating permit and a valid temporary operating permit, suggesting that the temporary permit might have been forged.
II
DISCUSSION
Defendant contends three of the jury instructions used violated his constitutional right to due process. He asserts the instruction on reasonable doubt (CALCRIM No. 220) limited the jury to relying only on evidence received at trial and precluded them from taking into account the lack of evidence. Defendant also asserts the jury instruction regarding evaluating conflicting evidence (CALCRIM No. 302) misstates the law and undermines the presumption of innocence. Finally, defendant argues that the use of the phrase “slight supporting evidence” found in CALCRIM No. 376 misstates the law, lowers the prosecution’s burden of proof, and is “tantamount to a directed verdict . . . .”
In reviewing challenged jury instructions, we must determine whether it is reasonably possible the jury could have applied the instruction in a way that violates the Constitution. (People v. Frye (1998) 18 Cal.4th 894, 957.) In conducting this inquiry, we consider the instructions as a whole. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) We review de novo the validity of the trial court’s jury instructions. (People v. Burch (2007) 148 Cal.App.4th 862, 870.)
A. CALCRIM No. 220
The trial court here instructed the jury in accordance with CALCRIM No. 220 that the defendant is presumed innocent unless the People prove each element of the crime or special allegation beyond a reasonable doubt. The instruction defined “[p]roof beyond a reasonable doubt” as “proof that leaves you with an abiding conviction that the charge is true.” The jury was told that to decide whether the People had proved their case beyond a reasonable doubt it must “impartially compare and consider all the evidence that was received throughout the entire trial.” “Evidence” was then defined as “the sworn testimony of witnesses, the exhibits admitted into evidence,” and anything else the court instructed was to be considered as evidence. (CALCRIM No. 222.) Because it is presumed jurors follow the instructions given to them (People v. Osband (1996) 13 Cal.4th 622, 714), defendant argues the jury was precluded from considering the absence of evidence in making its determination.
The trial court read CALCRIM No. 220 as follows: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
Assuming, without deciding, that defendant did not waive this issue on appeal, we reject defendant’s challenge to CALCRIM No. 220. Although the beyond-a-reasonable-doubt standard is required for due process, the Constitution does not prohibit trial courts from defining reasonable doubt, as long as the court instructs the jury the defendant’s guilt must be proved beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5 [114 S.Ct. 1239, 127 L.Ed.2d 583].) Further, the Constitution does not require any particular wording to be used in instructing the jury as to the government’s burden of proof. (Ibid.) Reasonable doubt has been defined as one “based on reason which arises from the evidence or lack of evidence.” (United States v. Johnson (1965) 343 F.2d 5, 6 fn. 1.)
Contrary to defendant’s claim, CALCRIM No. 220 did not tell the jury reasonable doubt must arise solely from the evidence. (People v. Campos (2007) 156 Cal.App.4th 1228, 1238 (Campos).) CALCRIM No. 220 provides that if the evidence does not prove the defendant guilty beyond a reasonable doubt, the jury must find the defendant not guilty. Because the prosecution is required to prove every element of the crime, the jury presumably understands a lack of evidence could lead to reasonable doubt. Further, if CALCRIM No. 220 required the jury specifically consider the lack of evidence in a reasonable doubt determination, such an instruction may lead the jury to presume the defendant has some responsibility of proving reasonable doubt.
Defendant’s reliance on People v. Simpson (1954) 43 Cal.2d 553 is misplaced. The defendant in Simpson argued the trial court’s instruction on reasonable doubt shifted the burden to him to prove his innocence. The court instructed the term “reasonable doubt” meant “‘a doubt which has some good reason for its existence arising out of evidence in the case; such doubt as you are able to find a reason for in the evidence.’” (Id. at p. 565, fn. & italics omitted.) The California Supreme Court held this language was unnecessary and possibly confusing because “reasonable doubt . . . may well grow out of the lack of evidence in the case as well as the evidence adduced.” (Id. at p. 566.)
Here, in contrast, the instruction did not tell the jury reasonable doubt had to arise solely out of the evidence in the case. The court simply instructed the jury to consider all of the evidence presented, and defendant raised the specter of evidence that could be perceived as lacking in the prosecution’s case. Thus use of CALCRIM No. 220 did not violate defendant’s due process rights.
Additionally, as the court noted in Campos, the California Supreme Court and the Courts of Appeal in every appellate district have rejected similar challenges to the language used in CALCRIM No. 220. (Campos, supra, 156 Cal.App.4th at p. 1239.) These cases concluded that the contents of the reasonable doubt instruction did not violate due process or lessen the burden of proof below that of finding guilt beyond a reasonable doubt. (See, e.g., People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Rios (2007) 151 Cal.App.4th 1154; People v. Westbrooks (2007) 151 Cal.App.4th 1500.)
In fact, Guerrero rejected the very argument defendant raises here. There the defendant contended that CALCRIM No. 220 “prevented the jury from considering a lack of evidence in deciding whether reasonable doubt existed,” citing “the phrase ‘the evidence that was received throughout the entire trial.’” (People v. Guerrero, supra, 155 Cal.App.4th at p. 1267.) The defendant argued his due process rights were violated in that “‘the concept of lack of evidence’” was not included in the basic definition. (Id. at p. 1267.) Rejecting the defendant’s argument and finding no due process violation, the court stated: “Contrary to defendant’s suggestion, CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. In addressing defendant’s claim, we consider whether a ‘reasonable juror would apply the instruction in the manner suggested by defendant.’ [Citation.] The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendant’s guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant.” (Id. at pp. 1268-1269.)
In summary, we agree with the analysis of the appellate cases rejecting challenges to the reasonable doubt instruction found in CALCRIM No. 220 and hold that because there is no reasonable likelihood that the jury understood CALCRIM No. 220 in the manner suggested by defendant, the trial court did not err in giving such instruction to the jury. As Campos explains, “In light of this impressive and controlling array of legal authority, we find no compelling reason to revisit this issue. Moreover, we caution the Bar that adoption of the Judicial Council of California Criminal Jury Instructions is not an excuse for advocates to dust off the old, hackneyed arguments that were thoroughly discredited under similarly worded CALJIC instructions and recycle them before this court.” (Campos, supra, 156 Cal.App.4th at p. 1239.)
B. CALCRIM No. 302
Defendant also challenges CALCRIM No. 302, the instruction on evaluating conflicting evidence, on several bases. Specifically, he asserts that the instruction improperly states the law and undermines the presumption of innocence by (1) creating a presumption that all witnesses are telling the truth; (2) focusing the jury on which side presents the more compelling evidence; (3) instructing that if the defense witnesses are disbelieved, the prosecution witnesses should be believed; and (4) telling the jury to consider how many witnesses a party calls before reaching its verdict.
As given here, CALCRIM No. 302 read: “If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses or any witness without a reason or because of prejudice or a desire to favor one side over the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.”
Defendant’s arguments have been rejected in People v. Ibarra (2007) 156 Cal.App.4th 1174, 1190-1191 and People v. Anderson (2007) 152 Cal.App.4th 919, 938-940 (Anderson). (See also People v. Reyes (2007) 151 CalApp.4th 1491, 1497.) We adopt the reasoning of those two decisions and hold the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
C. CALCRIM No. 376
Defendant also contends that instructing the jury with CALCRIM No. 376 was error because the instruction misstates the law, reduces the prosecution’s burden of proof, and is “tantamount to a directed verdict . . . .”
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 possessing a stolen vehicle 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 the crime of possessing a stolen 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 his guilt. [¶] 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.”
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 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, 152 Cal.App.4th at p. 947.) To support his argument, the defendant, as here, relied on People v. McFarland (1962) 58 Cal.2d 748 and Barnes v. United States (1973) 412 U.S. 837 [93 S.Ct. 2357, 37 L.Ed.2d 380]. (Ibid.) 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 ‘“[p]ossession 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 substantively 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, Williams, and O’Dell and deny defendant’s invitation to reject the conclusion and analysis reached in Anderson.
Here, corroborating evidence was more than just slight -- it was overwhelming. Defendant was essentially caught red-handed with the stolen vehicle. He was also in possession of a shaved generic key for a Toyota, which was able to start the stolen vehicle. On the other hand, defendant’s defense was incredible. We therefore conclude there was no error in instructing the jury with CALCRIM No. 376.
D. Ability to Pay Presentence Probation Report
Lastly, defendant contends that the minute order of the sentencing proceeding and the abstract of judgment must be amended to delete the requirement that he pay the cost for the preparation of the presentence probation report in an amount not to exceed $318, because at the time of sentencing the trial court did not order defendant to pay such a cost. He further argues that this order was improper because there was no hearing on his ability to pay the fee.
The People curiously respond that the cost assessment must be upheld because defendant was afforded notice of the fee, and having received such notice, defendant has forfeited his “complaint about lack of a formal hearing because he never requested one.” The People do not address the discrepancy argument raised by defendant. We agree with defendant that the People misstate defendant’s argument and agree with defendant that the abstract of judgment and the minute order of the sentencing proceedings must be amended.
In analyzing the oral proceedings, the record is clear that the court did not impose the cost of the preparation of any probation report. “. . . ‘Rendition of judgment is an oral pronouncement.’” (People v. Mesa (1975) 14 Cal.3d 466, 471.) Entering the judgment in the minutes is a clerical function, as is the preparation of the abstract of judgment. Therefore, when the oral pronouncement of judgment is in conflict with the minutes and/or the abstract of judgment, the oral pronouncement controls. (Ibid.) An appellate court has the authority to order correction of clerical errors on request of either party or on its own motion. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.) We will therefore order the clerk of the superior court to correct the minutes and the abstract of judgment to reflect correctly the court’s findings on the cost of the presentence report. (Id. at p. 188.)
III
DISPOSITION
The clerk of the superior court is directed to correct the minute order of the sentencing proceeding and abstract of judgment in accordance with this opinion, i.e., to remove any imposition of a duty to pay for the preparation of the presentence probation report. The clerk of the superior court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation and to the parties. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST Acting P.J. KING J.