Opinion
A150621
04-30-2018
THE PEOPLE, Plaintiff and Respondent, v. TOAN V. NGUYEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 15011755, SCN224392)
Following a jury trial, defendant was convicted of first degree burglary, misdemeanor theft, and misdemeanor trespass. Defendant's sole contention on appeal is the trial court erroneously instructed the jury with CALCRIM No. 376, "Possession of Recently Stolen Property as Evidence of a Crime." We reject defendant's claim and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Lauren K. shared a two-bedroom apartment with Sarah F. on the second floor of a building in San Francisco. Sarah was away during the Memorial Day weekend, May 23 to 24, 2015, leaving Lauren alone in the apartment. When Sarah departed from the apartment, she left a window in her bedroom, overlooking the garbage area, open.
On the night of May 23, Lauren slept with her bedroom door closed. When she woke up the morning of May 24, she heard some noise in the apartment which she first attributed to the upstairs neighbors. However, as the noise continued and seemed a "bit louder and closer than just normal upstairs noise," "like it was coming towards the kitchen and Sarah's room," she decided to investigate. Lauren stepped out of her bedroom and said, "hello." There was no response. She then took another step and saw a man, later identified as defendant, with his back to her facing the front door. Lauren told defendant to "get out of my house," approached him, and shoved him through the open door. As she was yelling at defendant, he said, "I didn't do anything, bitch."
After defendant left the apartment, Lauren ran to her neighbor's house. As she looked back, she observed defendant slowly walking down the stairs carrying a woven basket. It was her "roommate[']s trash can." From her neighbor's apartment, Lauren called the police, who arrived within five minutes.
Once the police arrived, Lauren and the officers entered Sarah's room where she saw the bedroom window was open and "things had been shifted around." While the police were there, Officer Daniel Espinoza met with another resident of the apartment building who informed him there was somebody, possibly the burglar, in a next-door parking lot. Accompanied by Lauren and another officer, Espinoza went to the parking lot where he found defendant laying on the ground in a corner. There, Lauren identified defendant after which Espinoza placed him under arrest.
Approximately 20 feet from where defendant was situated, Espinoza found some items behind a bush. The police brought the items over to Lauren, and she identified the basket defendant carried out of the building along with several items contained therein as coming from Sarah's bedroom. When Sarah returned to the apartment on the evening of May 24, Lauren showed her the basket and contents. Sarah identified the waste paper basket and its contents—perfume, glasses, some bottles of wine, and her boyfriend's packaged underwear. Neither her jewelry nor laptop computer was missing.
The parties stipulated a partial palm print lifted from the interior window frame of Sarah's bedroom and a partial fingerprint lifted from the cap of the perfume bottle found in the basket recovered by Espinoza matched those of defendant.
The defense consisted of the testimony of Jim Ritchie, who owned an interest in a piece of property located in San Francisco between 1999 and 2010. From 2003 to 2010, a building was constructed on this property. During construction, there were multiple break-ins. On two occasions, Ritchie saw an Asian man in his property who he thought was Vietnamese. He remembered calling the police in 2006, and the man was escorted out of the building. On a separate occasion, Ritchie spotted this same man sleeping in his building. While Ritchie was not 100 percent certain defendant was the man he found in his building, he testified defendant "looks familiar." Defendant called Ritchie as a witness in support of his defense theory that he was a trespasser looking for a place to sleep rather than a burglar.
An information was filed charging defendant with two counts of residential burglary (Pen. Code, § 459) and one count of receiving stolen property (§ 496, subd. (a)). The information alleged defendant committed the burglaries while another person, other than an accomplice, was present in the residence. (§ 667.5, subd. (c)(21).) It was also alleged defendant committed a violent or serious felony while on felony probation (§ 1203, subd. (k)) and he served a prior prison term (§ 667.5, subd. (b)).
All statutory references are to the Penal Code.
Before trial commenced, the court granted defendant's motion to dismiss the second charged burglary. And after the evidence was presented and prior to final argument, the prosecutor amended the information to allege misdemeanor theft of Sarah F.'s property (§ 484, subd. (a)) and misdemeanor trespass into Lauren K.'s and Sarah F.'s apartment (§ 602, subd. (m)).
The jury found defendant guilty of first degree burglary, misdemeanor theft, and misdemeanor trespass. As to the burglary, the jury also found true the allegation another person was present in the residence. As to the allegations under sections 667.5, subdivision (b) and 1203, subdivision (k), following the verdicts, the trial court granted the prosecution's motion to dismiss them. Less than a month later, pursuant to section 1385, the court granted the prosecution's motion to dismiss the receiving stolen property charge.
The receiving stolen property verdict form instructed the jury that if it found defendant guilty of theft to return the verdict form unsigned.
The court sentenced defendant to the low term of two years on the residential burglary, and with credit for time served, the sentence was deemed served. Defendant was also sentenced to 180 days in county jail on misdemeanor theft with 180 days of credit for time served, and the sentence for misdemeanor trespass was stayed under section 654.
Defendant filed a timely notice of appeal.
II. DISCUSSION
Defendant, prior to final argument, filed an objection to the court giving CALCRIM No. 376, "Possession of Recently Stolen Property as Evidence of a Crime," arguing the instruction lowers the prosecution's burden of proof. Again, defendant objected to CALCRIM No. 376 during the conference to settle jury instructions. The objection was overruled by the court.
The court then 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, recently been stolen, you may not convict the defendant of burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed burglary. Supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of burglary. Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
Defendant maintains the trial court erred in giving CALCRIM No. 376 because "this instruction is an alternative theory by which the jury could find guilt" if it concluded defendant possessed recently stolen property and found some other fact that tended to prove guilt. According to defendant, though the jury was told each "fact" essential to the conclusion defendant committed the crime must be proved beyond a reasonable doubt, "the instruction did not say all the elements of the crime of burglary, as described in CALCRIM No. 1700, must still be proved beyond a reasonable doubt."
In reviewing a challenge to jury instructions, we must consider the instructions as a whole. We assume the jurors are capable of understanding and correlating all the instructions given to them. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1294.) A single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge. (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) An appellate court conducts an independent review of issues pertaining to instructions. (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.) To reverse a judgment for instructional error, an appellate court must find a reasonable likelihood "any allegedly erroneous instruction would have led the jury to misapply the law." (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1155.) Such is not the case here.
Although defendant argues CALCRIM No. 376 "allows the jury to short-circuit the requirements of Jackson v. Virginia (1979) 443 U.S. 307, 316, which says that to find a defendant guilty of a crime, the jury must conclude that there was proof 'beyond a reasonable doubt of the existence of every element of the offense,' " the California Supreme Court and Courts of Appeal have repeatedly upheld the validity of CALCRIM No. 376 and its predecessor, CALJIC No. 2.15. (See, e.g., People v. Gamache (2010) 48 Cal.4th 347, 375-376 [CALJIC No. 2.15 "satisfies the due process requirement for permissive inferences, at least for theft-related offenses" and does not shift or lower prosecution's burden of establishing guilt beyond a reasonable doubt]; People v. Holt (1997) 15 Cal.4th 619, 677 ["We see no possibility that giving the jury the additional admonition that it could not rely solely on evidence that defendant possessed recently stolen property would be understood by the jury as suggesting that it need not find all of the statutory elements of burglary and robbery had been proven beyond a reasonable doubt."]; People v. Lopez (2011) 198 Cal.App.4th 698, 712 [CALCRIM No. 376 is not "reasonably susceptible of being misinterpreted to lower the prosecution's burden of proof concerning burglary, especially when that instruction is viewed in light of all of the court's instructions—specifically, CALCRIM No. 220, which requires the jury to find that the prosecution has proved the defendant guilty beyond a reasonable doubt"]; People v. O'Dell (2007) 153 Cal.App.4th 1569, 1576 [" 'As long as 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.' "]
While acknowledging the California Supreme Court and Courts of Appeal have upheld the validity of CALCRIM No. 376, and its predecessor, defendant seeks to distinguish these cases by arguing "none of these cases examined the effect of the circumstantial evidence instructions, which permit a jury to infer facts from proof of other facts." The trial court instructed the jury on "Circumstantial Evidence: Sufficiency of Evidence" under CALCRIM No. 224, and "Circumstantial Evidence: Intent or Mental State" under CALCRIM No. 225. These two instructions, like CALCRIM No. 376, instruct the People must prove each fact essential to the conclusion that defendant is guilty beyond a reasonable doubt. Examining these instructions together, defendant claims, "When the instructions on circumstantial evidence are considered, the instructions allow the jury to return a guilty verdict without making a finding on the actual elements of the offense, in violation of the Fourteenth Amendment."
As noted above, instructions are not to be considered in isolation, and must be considered as a whole. In this case, the trial court instructed the jury on reasonable doubt, and the elements of first degree burglary. The reasonable doubt instruction informed the jury defendant is presumed to be innocent and the prosecution must prove defendant guilty beyond a reasonable doubt. The jury was further instructed, "Unless the evidence proves the defendant guilty beyond a reasonable doubt, he's entitled to an acquittal and you must find him not guilty." The court also instructed the jury on the elements of burglary and specifically, told the jury: "The People have the burden of proving beyond a reasonable doubt that the burglary was first degree burglary. If the People have not met this burden, you must find the defendant not guilty of first degree burglary." Moreover, CALCRIM No. 376 informed the jury, "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." Lastly, and importantly, the instruction on duties of the judge and jury said, "Pay careful attention to all of these instructions and consider them together." Taking into account the instructions in their entirety, and crediting jurors with intelligence and common sense, we conclude the jury was adequately and correctly informed it must find beyond a reasonable doubt each element of the burglary charge to find defendant guilty.
Nevertheless, defendant insists federal cases support his position that CALCRIM No. 376 should never refer to "slight" evidence without incorporating into the same instruction "that the evidence to convict has to include all the elements of the crime." In support of this assertion, defendant seeks to analogize U.S. v. Partin (5th Cir. 1977) 552 F.2d 621, 628 (Partin), cert. denied, 434 U.S. 903, to the present matter. In Partin, the appellant was convicted of conspiring to obstruct the due administration of justice. The court reversed the appellant's conviction because the trial court's jury instruction that slight evidence was all that was required to connect the appellant to a conspiracy was a reduction of the government's burden of proof. Additionally, defendant cites to a number of other federal conspiracy cases that have reached the same conclusion. His reliance on these federal cases, however, is misplaced because they are irrelevant. Defendant was charged with residential burglary, not conspiracy, and the offending instruction used in Partin was not given here. In short, CALCRIM No. 376 has withstood prior challenges in the appellate courts of this state on the ground it lessens the prosecution's burden of proof. We see no reason to change course.
In Partin, the district court gave the jury the following "slight evidence" instruction: "Since a conspiracy by its very nature is born and clothed in secrecy, the first element of the offense—agreement—is seldom susceptible of direct proof. Proof of the agreement or common purpose must therefore rest upon inferences drawn from relevant and competent circumstantial evidence—ordinarily, the acts and conduct of the conspirators themselves. Once the existence of the agreement or common scheme of conspiracy is shown, however, slight evidence is all that is required to connect a particular defendant with the conspiracy." (Partin, supra, 552 F.2d at p. 628, italics omitted.) Significantly, unlike CALCRIM No. 376, the conspiracy instruction does not include language that to convict the defendant of a crime, each fact essential to the conclusion the defendant is guilty must be proved beyond a reasonable doubt.
Even assuming the trial court committed instructional error, the error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Gamache, supra, 48 Cal.4th at p. 376 [Watson test applies to harmless error analysis in challenge to CALJIC No. 2.15.) Defendant entered Sarah F.'s bedroom through an open window while Lauren K. was asleep, and carried out property belonging to Sarah F. when he was pushed out of the apartment. Shortly thereafter, police discovered him in a next-door parking lot where the stolen property was found 20 feet away from him hidden behind a bush. The evidence of first degree burglary was thus strong and defendant's evidence he was only a trespasser was weak. Under the Watson standard, there is no reasonable probability defendant would have obtained a more favorable result had CALCRIM No. 376 not been given.
Evidently the jury found the evidence of defendant's guilt overwhelming as it began deliberations after lunch at 1:30 p.m. and reached its verdicts by 1:33 p.m. on the same day.
The judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.