Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE605488
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant Dominic John DiGiacomo was found guilty after jury trial of one count of robbery (Pen. Code, §§ 211, 212.5, subd. (c)). On its own motion, the trial court dismissed a count of receiving stolen property (§ 496, subd. (a)) in the interests of justice pursuant to section 1385. The court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. On appeal, defendant contends that the prosecutor committed prejudicial misconduct, that his trial counsel rendered ineffective assistance by failing to object to the misconduct, and that the trial court denied him due process and lowered the prosecution’s burden of proof when it instructed the jury with CALCRIM No. 224 and with CALCRIM No. 376. As we disagree with all of defendant’s contentions, we will affirm the judgment.
All further statutory references are to the Penal Code.
BACKGROUND
Defendant was charged by second amended information with second degree robbery (§§ 211, 212.5, subd. (c); count 1), and receiving stolen property (§ 496, subd. (a); count 2.) As part of his motions in limine, the prosecutor sought leave to introduce a redacted CD and transcript of the police interview of codefendant White. After reviewing the transcript and listening to the CD in open court, the court ruled that White’s redacted statements were admissible up to when he invoked his right to counsel. Any reference to defendant by name would be deleted, but any use of the pronoun “he” would remain.
The information included similar charges against Jasper Isley White, who was tried with defendant but who is not a party to this appeal.
The Prosecution’s Case
Around 8:00 p.m. on the night of October 28, 2006, Ive Spadina went to a 7-Eleven on Fair Oaks Boulevard in Sunnyvale to buy a cup of coffee. He then took a Dell laptop computer that he had found some time earlier out of his backpack and sat on a section of wall in front of the store. After a vehicle drove into the parking lot and parked, White approached Spadina and asked him if he wanted to sell the laptop. White said that he had $400 on him, and he pulled out some money and started counting out $20 bills. Spadina declined the offer and White went inside the store.
Spadina was still sitting in the same spot when White came out of the store and stood to Spadina’s right. While defendant and another person stood about four or five feet in front of Spadina, White asked Spadina if he wanted to trade the laptop for a vehicle. Spadina declined the offer and went back to working on his laptop. Another man came up to Spadina on his left side and asked him what he was doing. Spadina did not respond to the question. Then, somebody to Spadina’s right grabbed the laptop from Spadina while whoever was on Spadina’s left pushed him over. Spadina did not think that the person to his left who spoke to him and who pushed him was defendant, but Spadina could not describe the person. Spadina got up, grabbed his coffee, and looked around. He saw the laptop in defendant’s hand while defendant was getting into the rear passenger’s side of a car. Defendant appeared to be passing the laptop to somebody or placing it inside the car. Defendant was having difficulty getting his right leg into the car, so Spadina approached the car. Spadina saw a female sitting in the back of the car next to defendant.
After defendant got inside the car and closed the door, the car took off. Spadina threw his coffee at the car, grabbed his cell phone and called the police. He described the car as being a tan or gold, older four-door car without a license plate, but with an “11” registration sticker, and he said that there were four or five people in the car. He thought that defendant was wearing tan pants and that the driver of the car, who was neither defendant nor White, was wearing a brown jacket.
About five or six minutes later, Officer Steven Rocheville arrived at the 7-Eleven. The officer interviewed Spadina, drove him to the location where a suspect vehicle had been stopped, and had him look at the people who had been removed from the vehicle. Spadina first recognized White, then he recognized the woman he had seen sitting inside the car, and then he recognized defendant.
Officer Gary Cortez responded to the report of a robbery at the 7-Eleven store. About five minutes after he heard the dispatch, and while he was stopped at a light on southbound Fair Oaks at Tasman, the officer saw a car that matched the car reported as being involved in the robbery. The car was an older brown sedan that had no license plates and had a red “11” DMV tag. It was heading westbound on Tasman crossing Fair Oaks. Officer Cortez reported to dispatch that he was following the car. The car pulled into an apartment complex and the officer initiated a car stop. He waited to remove the occupants of the car until another officer arrived.
Officer Joel Lockwood heard the report of a robbery involving a laptop computer at the 7-Eleven. While Officer Lockwood was en route to the store, Officer Cortez reported that he had stopped a car he suspected was involved in the robbery, so Lockwood went to Officer Cortez’s location and participated in ordering the car’s three occupants out of the vehicle. Defendant was the driver of the car, White was the front passenger, and a woman was the back passenger. Defendant was wearing black pants and a black jacket.
Officer Lockwood searched the car and found a laptop computer on the floorboard of the driver’s seat. After Spadina identified defendant, Lockwood showed Spadina the laptop that he had recovered from the car, and Spadina recognized it as his laptop.
Officer Cortez interviewed White at the police department after his arrest. After waiving his Miranda rights, White said that he had met up with a woman named Rachel and a man in Union City, and they had spent the day together at a mall. When they went to a 7-Eleven, White bought a “Swisher” and returned to the car. “Some dude” he did not know hopped in the backseat of the car and asked them to give him a ride. The man was in a hurry so they took him. They were pulled over by the police after they got on and off the freeway and dropped the man off. White said that he could not describe the man because he was half asleep during the trip and that he did not see a laptop computer in the car. White said that he got the over $300 that was in his pocket for his birthday, which was on October 14. He had pulled out the cash at the store only to count it out when he was at the cash register. He talked to a man sitting in front of the 7-Eleven about the man’s laptop computer before he entered the store, but he did not say anything to the man before he returned to the car.
A CD of the redacted interview (exhibit No. 2) was played for the jury and a transcript of the redacted CD (exhibit No. 9) was admitted into evidence.
Miranda v. Arizona (1966) 384 U.S. 436.
The Defense Case
Defendant testified in his own behalf that on October 28, 2006, he spent the day with Rachel and White. After they spent some time at Valley Fair, they went to the house of defendant’s friend Aaron who lives in an apartment complex near the Sunnyvale 7-Eleven. They left Aaron’s apartment a little after 8:00 p.m. and went to the 7-Eleven. Defendant saw Spadina outside the store when they pulled into the parking lot. White got out of the car and went inside the store to buy a cigar and returned to the car within a minute or two. As defendant was driving out of the parking lot, a man defendant had never seen before jumped into the back passenger’s seat of defendant’s car and angrily said, “Leave now.” The man was Hispanic, had long hair, was about six feet tall, and was wearing a red shirt. Defendant felt threatened and afraid, so he drove away. As he did so, somebody chased his car and threw a cup of coffee at it.
The man who got into defendant’s car forcefully said, “ ‘Drive, drive, hop on the freeway right now, now.’ ” Defendant entered the freeway but got off at the next exit, drove to the nearest street, and told the man to get out of his car. The man got out. Defendant has no idea how the laptop computer found in his car got there. It was not at his feet when he was stopped by the police, but it could have been passed underneath the seat from the back of the car. At the time the officer pulled him over, defendant had no idea why the officer had stopped him. He had not called the police to report that he had been the victim of a carjacking. He was removed from his car by officers at gunpoint. He told an officer that there had been a fourth person in his car but that he did not know who the person was.
Defendant admitted having prior misdemeanor convictions for hit and run and reckless driving.
Verdicts and Sentencing
On August 21, 2007, the jury found defendant guilty of robbery as charged in count 1 (§§ 211, 212.5, subd. (c)). As the court had instructed the jury that count 2 was charged as an alternative count to count 1, the court dismissed count 2 on its own motion in the interests of justice under section 1385. On December 27, 2007, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions.
DISCUSSION
Prosecutorial Misconduct
The court instructed the jury pursuant to CALCRIM No. 305 that “You have heard evidence that defendant Jasper Isley White made a statement out of court. [¶] You may consider that evidence only against him, not against any other defendant. You have heard evidence that defendant Dominic John DiGiacomo made a statement out of court. You may consider that evidence only against him, not against any other defendant.”
During his argument to the jury, the prosecutor argued that defendant lied on the stand and that the jury should consider not believing anything defendant said. In his opening argument, the prosecutor argued that the jury could conclude that defendant is lying because he is a dishonest person, as demonstrated by his misdemeanor convictions, and because he never reported his alleged carjacking to the police. The prosecutor continued: “We also know that [defendant is] lying because his statement doesn’t match up with his codefendant’s statement to the police. . . . Mr. White says a guy asked for a ride and we dropped him off. . . . [¶] White can’t describe the person because he’s asleep. And Mr. DiGiacomo could not give a straight answer about if Mr. White was asleep or not. [¶] And you can remember during cross-examination, I asked [defendant], Mr. White says he was asleep during this whole time; is that true? And he says yes. And I said well, this guy bursts into your car, you’re thinking he might get violent, you might need to use physical force to get him out of your car, he’s a big guy who’s bigger than Mr. White, so you’re checking to make sure th[at] White has your back, that he can help you out if something happens, right? And [defendant] finally says well, yes, which contradicts his earlier statement that he didn’t know if White was asleep or not, so he can’t even keep his stories straight.”
In his rebuttal argument, the prosecutor argued that when somebody gives a “completely ridiculous explanation, that cements that he is guilty. [¶] That’s what Mr. DiGiacomo said. He got on the stand, he lied to your face. We all know that story is a lie and that’s all the evidence you need to convict him. You just can – defendants don’t get to take the stand for free, tell as story, be caught in the lie and say, well, don’t consider that, and that’s basically what [defendant’s counsel] said because [counsel] realizes that you can see [defendant is] lying. [¶] So one of two things happened here. One is the defendants are guilty. The victim was robbed by the defendants. The defendant White wanted the laptop computer, the defendants had the laptop a few minutes later. The victim correctly identified both defendants, and both defendants lied, Mr. DiGiacomo in court and Mr. White out of court when he’s interviewed. And by the way, just think about the fact they’re possessing this laptop computer, they want the laptop and just by some miraculous event, they have the laptop computer five minutes later. [¶] Or they’re not guilty by what Mr. DiGiacomo tells you in court and what Mr. White told you out of court. And their stories don’t exactly match up. There’s some similarities so it’s basically one version of events that they give, they just don’t really make a whole lot of sense when you look at them together, but they would have you believe that defendants – they just happened to be at the scene of a crime, Mr. White wanted the computer, a mystery man just happened to rob the victim of the very same laptop computer that Mr. White wanted and was talking to the victim about not a minute before, the mystery man just happened to carjack these defendants. The mystery man then goes through all the effort and risk of robbing someone, carjacking someone and he leaves the laptop computer behind. The defendants were victims but they didn’t report it at any time either while it happened or thereafter. And the defendants cannot describe this mystery man. [¶] It just doesn’t make any sense and so when you look at both stories and ask which is reasonable and which is unreasonable, it’s clear that the explanation that points to guilt is the reasonable explanation, the explanation that they come up with is not reasonable, and therefore, they are guilty. Thank you.”
Defense counsel did not object when the prosecutor cross-examined defendant regarding White’s statement to the police. Nor did defense counsel object when the prosecutor referred to that cross-examination during argument. On appeal, however, defendant contends that the prosecutor committed prejudicial misconduct when he asked the jury to use White’s statement against defendant, and that defendant’s counsel rendered ineffective assistance by failing to raise the issue below. “[B]y impeaching [defendant] with White’s statements on cross-examination, and by urging the jury, both during his argument and rebuttal, to use them against him, the prosecutor violated [defendant’s] Sixth Amendment right to cross-examine the witnesses against him.” “[D]efense counsel’s failure to object deprived [defendant] of his right to the effective assistance of counsel. On either ground, reversal is required.”
“ ‘A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.’ [Citation.] A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel’s incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel’s actions or omissions can be explored. [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).)
“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746; Lopez, supra, 42 Cal.4th at p. 966.)
A defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating statement of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. (Bruton v. United States (1968) 391 U.S. 123, 135-137; Richardson v. Marsh (1987) 481 U.S. 200, 211.) The rule applies even where the confession has been redacted or sanitized to replace the nondeclarant defendant’s name with a blank space. (Gray v. Maryland (1998) 523 U.S. 185, 194-195.) On the other hand, the rule does not require exclusion of the codefendant’s confession if it is redacted to eliminate any reference to the defendant, even though the defendant is linked to the confession by other evidence introduced at trial. (Richardson v. Marsh, supra, 481 U.S. at p. 211.)
“ ‘ “It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . . A prosecutor may ‘vigorously argue his case and is not limited to “Chesterfieldian politeness” ’ [citation], and he may ‘use appropriate epithets . . . .’ ” ’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 221.)
In this case, when White spoke to the police after his arrest, he gave his version of the events leading up to his arrest. White’s redacted statement was exculpatory and was not facially incriminating or a confession. Although in his statement White made a direct reference to a female companion and an indirect reference to a male companion, the jury could not infer that the male companion was defendant without considering other evidence. Besides White’s statement, the prosecution presented testimony from the victim, who identified White as the person who asked him about his laptop and who identified defendant as the person who entered a car carrying the stolen laptop. The prosecutor also presented the testimony of officers who identified defendant as the driver and White as the front passenger of the car when the car was later stopped and when the laptop was found on the floorboard of the driver’s seat. Therefore, although other evidence pointed to defendant as a coparticipant with White in the robbery involving the laptop, White’s exculpatory statement was properly admitted at the joint trial with limiting instructions and the admission of the statement did not violate defendant’s rights under the confrontation clause. (Bruton v. United States, supra, 391 U.S. at pp. 135-137; Gray v. Maryland, supra, 523 U.S. at pp. 195-197; Richardson v. Marsh, supra, 481 U.S. at p. 211; see also Crawford v. Washington (2004) 541 U.S. 36, 68.)
After the jury heard the prosecution’s evidence, defendant testified in his own defense and gave his version of the events leading up to his arrest. Defendant admitted that he was the male companion that White had referred to in his statement to the police, and defendant’s testimony was generally consistent with White’s exculpatory statement. However, defendant’s testimony was inconsistent with White’s statement in some particulars and it also was internally inconsistent in some particulars. The prosecutor pointed out some of these inconsistencies when cross-examining defendant and when arguing to the jury that neither defendant’s testimony nor White’s out-of-court exculpatory statement should be believed. Defendant has cited no authority, and we have found none, which holds that it is misconduct for the prosecutor to either question the defendant about his codefendant’s out-of-court exculpatory statement or to argue to the jury that the defendant’s exculpatory testimony was inconsistent with his codefendant’s out-of-court exculpatory statement. The cases cited by defendant, United States v. Sherlock (9th Cir. 1992) 962 F.2d 1349, and Hardnett v. Marshall (9th Cir. 1994) 25 F.3d 875, do not help him. In Sherlock, the codefendant’s hearsay statement came in as an “ ‘admission’ ” by the codefendant. (Sherlock, supra, 962 F.2d at p. 1360.) In Hardnett, the prosecutor cross-examined a defendant about a codefendant’s out-of-court statement after the court had granted an in limine motion to exclude the entire statement. (Hardnett, supra, 25 F.3d at pp. 877-878.) Accordingly, we cannot say that defendant has demonstrated that defense counsel’s failure to object to either the prosecutor’s cross-examination or his argument to the jury constituted ineffective assistance rather than a sound trial strategy. (Lopez, supra, 42 Cal.4th at p. 966; People v. Ledesma, supra, 39 Cal.4th at pp. 745-746.)
Even if we were to consider the prosecutor’s conduct to be misconduct, we would find that defendant has failed to show that he was prejudiced by his counsel’s failure to object. White’s out-of-court statement was exculpatory and it did not mention defendant by name. Defendant’s testimony was also exculpatory, it was generally consistent with White’s statement, and in it defendant admitted that he was with White during the events that White described. In addition, the jury’s verdict is supported by other substantial evidence. Based on the testimony of the witnesses other than White and defendant, the jury could have reasonably found that, contrary to White’s and defendant’s claims, White and defendant robbed Spadina of his laptop. Spadina testified that White and defendant were both at the 7-Eleven when he was robbed and that he saw defendant getting into a car with the recently stolen laptop. Officers testified that defendant was the driver and White was the front passenger of the car when it was stopped near the 7-Eleven shortly after the robbery, and that Spadina identified the laptop found on the driver’s floorboard of that car as his laptop. Accordingly, we find that there is no reasonable probability that a result more favorable to defendant would have occurred but for counsel’s failure to object. (Lopez, supra, 42 Cal.4th at p. 966.)
CALCRIM No. 224
The court instructed the jury with CALCRIM Nos. 223 [direct and circumstantial evidence: defined] and 224 [circumstantial evidence: sufficiency of evidence] as follows: “Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat, covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence. [CALCRIM No. 223.]
“Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable. [CALCRIM No. 224.]”
Defendant contends that the court violated due process and the Sixth Amendment by effectively telling the jury that direct evidence could support a finding of guilt even if it was consistent with an innocent explanation. He argues that the court’s instructions “effectively told the jurors not only that direct evidence did not have to be proven beyond a reasonable doubt, but that they could rely on direct evidence to convict even if that evidence was consistent with an innocent explanation.” He argues that “it is both obvious, and logical, that by explicitly limiting the . . . principles [outlined in CALCRIM No. 224] to circumstantial evidence, the instructions logically told the jury that these principles did not apply to direct evidence.” “[T]here is a reasonable likelihood that this instruction told the jury it could convict based on direct evidence where they could draw two or more reasonable conclusions, even if one of them pointed to innocence.” “[O]n the record of this case – where the state placed great reliance on direct evidence and where that evidence did in fact have an innocent explanation – the court’s instruction violated [defendant’s] rights under state and federal law and requires reversal of his convictions.”
Defendant acknowledges that the appellate courts in People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson) and People v. Ibarra (2007) 156 Cal.App.4th 1174 (Ibarra) have approved CALCRIM No. 224, but he argues that the cases were wrongly decided. In Anderson, the defendant contended that, because CALCRIM No. 224 is limited to circumstantial evidence and sets forth basic reasonable doubt and burden of proof principles, it gives the false impression that these principles apply to circumstantial evidence but not to direct evidence. (Anderson, supra, 152 Cal.App.4th at p. 931.) In rejecting the defendant’s contention, the court stated that CALCRIM No. 224 “cautions the jury not to rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendant’s guilt. In other words, in determining whether a fact necessary for conviction has been proved beyond a reasonable doubt, circumstantial evidence may be relied on only if the only reasonable inference that may be drawn from it points to the defendant’s guilt. [¶] The same limitation does not apply to direct evidence. Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference. Thus, as to direct evidence, there is no need to decide whether there is an opposing inference that suggests innocence.” (Ibid.)
The defendant in Anderson also challenged CALCRIM No. 224 by contending that “California law has long recognized the principle that ‘if two reasonable interpretations of the evidence exist, the one favoring the defendant’s innocence must be adopted,’ and this principle applies to both direct and circumstantial evidence.” (Anderson, supra, 152 Cal.App.4th at p. 931.) In rejecting the contention, the court stated “[T]he question addressed by CALCRIM No. 224 is not how to consider the evidence as a whole but how to consider specific circumstantial evidence. The instruction concerns whether a necessary fact may reasonably be inferred from circumstantial evidence when that evidence can be construed in a way that points to the defendant’s innocence, not whether the evidence as a whole may reasonably be construed to point to the defendant’s innocence.” (Id. at p. 932, italics omitted.)
In Ibarra, the defendant challenged CALCRIM No. 224 in part by criticizing the “ ‘intentional omission’ ” of direct evidence from its scope. (Ibarra, supra, 156 Cal.App.4th at p. 1186.) The court rejected the defendant’s challenge, stating: “Implicit in Ibarra’s argument is the assumption that circumstantial evidence and direct evidence are similarly situated, but that is not so. Circumstantial evidence involves a two-step process—first, the parties present evidence and, second, the jury decides which reasonable inference or inferences, if any, to draw from the evidence—but direct evidence stands on its own. So as to direct evidence no need ever arises to decide if an opposing inference suggests innocence.” (Id. at p. 1187, citing Anderson, supra, 152 Cal.App.4th at p. 931.)
In this case, the prosecution did not present direct evidence that defendant was the person who grabbed Spadina’s laptop from him or who pushed him over while another person grabbed the laptop. Spadina specifically testified that he thought defendant was standing in front of him while White spoke to him from his left, and that he did not think that defendant was the one who spoke to him from his right and who pushed him over while the laptop was being taken from him from his left. No other witness testified to seeing defendant participate in the robbery of Spadina. The only evidence presented of defendant’s guilt was circumstantial evidence: Spadina saw defendant enter the car holding the laptop seconds after it was grabbed from him; when the car was stopped a few minutes later, defendant was driving the car; and Spadina’s laptop was found on the floorboard of the driver’s seat of the car. CALCRIM No. 224 informed the jury that they could not convict defendant of the robbery unless it found that the only reasonable conclusion supported by the circumstantial evidence was that defendant is guilty. On this record, we cannot say that the court erred or violated defendant’s due process rights when it instructed the jury with CALCRIM No. 224.
CALCRIM No. 376
The court instructed the jury without objection from defendant pursuant to 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 robbery 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 robbery. [¶] 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 robbery. [¶] Remember that you may not convict a 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.”
Defendant contends that the trial court created an unconstitutional presumption and lightened the prosecution’s burden of proof by instructing the jury with CALCRIM No. 376. He argues that the instruction permitted a conviction based on proof less than beyond a reasonable doubt. “[T]he jury was told that it could convict based on (1) proof of a fact which is alone insufficient to prove these offenses (possession of stolen property), and (2) some other ‘slight’ evidence.” “Several courts have considered similar instructions permitting a conviction on the basis of proof of some fact that is insufficient to establish guilt plus other ‘slight’ evidence [and t]hese courts have found such instructions violate due process.” Defendant also contends that the issue must be addressed despite his lack of objection to the instruction below.
Defendant acknowledges that his contention was rejected as to CALJIC No. 2.15, the earlier comparable instruction, by the appellate court in People v. Snyder (2003) 112 Cal.App.4th 1200, 1225-1228. In that case the court held that “CALJIC No. 2.15 does not create an improper presumption of guilt arising from the mere fact of possession of stolen property, or reduce the prosecution’s burden of proof to a lesser standard than beyond a reasonable doubt. Rather, the instruction ‘relates a contrary proposition: a burglary [or robbery] may not be presumed from mere possession unless the commission of the offense is corroborated.’ [Citation.] The inference permitted by CALJIC No. 2.15 is permissive not mandatory. Because a jury may accept or reject a permissive inference ‘based on its evaluation of the evidence, [it] therefore does not relieve the People of any burden of establishing guilt beyond a reasonable doubt.’ [Citation.] Requiring only ‘slight’ corroborative evidence in support of a permissive inference, such as that created by possession of recently stolen property, does not change the prosecution’s burden of proving every element of the offense, or otherwise violate the accuser’s right to due process unless the conclusion suggested is not one that reason or common sense could justify in the light of the proven facts before the jury. [Citations.]” (Id. at p. 1226.)
“The permissive inference that CALCRIM No. 376 authorizes if the jury finds slight supporting evidence is linguistically synonymous with, and constitutionally indistinguishable from, the permissive inference that CALJIC No. 2.15 authorizes if the jury finds slight corroborating evidence. CALJIC No. 2.15 has withstood repeated constitutional attack. [Citations.] Like CALJIC No. 2.15, CALCRIM No. 376 neither undermines the presumption of innocence nor violates due process.” (People v. Solorzano (2007) 153 Cal.App.4th 1026, 1036; see also People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574-1575; People v. Anderson, supra, 152 Cal.App.4th at pp. 949-950.)
Defendant insists that federal cases support his contention. (See United States v. Partin (5th Cir. 1977) 552 F.2d 621, 628-629; United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1255-1256; United States v. Gray (5th Cir. 1980) 626 F.2d 494, 500-501; United States v. Durrive (7th Cir. 1990) 902 F.2d 1221, 1228-1229: United States v. Dunn (9th Cir. 1977) 564 F.2d 348, 356-357.) We disagree. The cases defendant cites dealt with a conspiracy instruction, not an instruction on possession of recently stolen property.
In our view, CALCRIM No. 376, like CALJIC No. 2.15, “correctly prohibits the jury from drawing an inference of guilt solely from conscious possession of recently stolen property but properly permits the jury to draw such an inference when there is additional corroborating evidence. As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inference is sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecution’s burden of proof or implicates a defendant’s right to due process.” (People v. Williams (2000) 79 Cal.App.4th 1157, 1173-1174.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J.
I CONCUR IN THE JUDGMENT ONLY MCADAMS, J.