Opinion
E052165 Super.Ct.No. FMB1000271
03-07-2012
THE PEOPLE, Plaintiff and Respondent, v. FRANK HENRY CHAPMAN, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed as modified.
Robert Booher, under appointment by the Court of Appeal for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant Frank Henry Chapman was convicted of first degree burglary (Pen. Code, § 459) and receiving stolen property (§ 496, subd. (a)). He admitted serving four prior prison terms within the meaning of section 667.5, subdivision (b). On October 29, 2010, the trial court sentenced defendant to 10 years in state prison. He appeals, contending the trial court erred in (1) failing to stay the sentence for his receiving stolen property conviction, and (2) instructing the jury on the amount of corroborating evidence necessary to prove the burglary charge.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
On June 30, 2010, defendant burglarized Corporal Kevin McDonald's home. Defendant took many items, including a laptop computer, video game console, DVDs, video games, jewelry, foreign currency, Japanese liquor, ancient Roman coins, watches, and digital cameras.
II. SECTION 654
The trial court sentenced defendant to concurrent prison terms for the burglary and receiving stolen property charges. Corporal McDonald's home was burglarized on June 30, 2010. The following day, defendant was found with the items of stolen property, as well as the shoes which left a distinctive print in Corporal McDonald's backyard. The charge of receiving stolen property was thus based entirely on the same theft that formed the basis for the burglary charge.
Under section 654, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision . . . ." With respect to the offenses of burglary and receiving stolen property, where the charge of receiving stolen property is based on the same theft of property underlying the burglary charge, both offenses are committed with a single intent and objective, and punishment for the lesser offense must be stayed under section 654. (People v. Allen (1999) 21 Cal.4th 846, 864-865; People v. Landis (1996) 51 Cal.App.4th 1247, 1253-1254.)
Defendant contends, and the People agree, that the trial court, during the oral pronouncement of sentencing, improperly imposed a concurrent sentence for defendant's receiving stolen property conviction when it should have been stayed pursuant to section 654. Both parties note that the minute order and abstract of judgment reflect that the sentence for receiving stolen property was stayed pursuant to section 654. Both concede the oral pronouncement of sentencing must be modified to reflect that the sentence for receiving stolen property is stayed pursuant to section 654. We agree.
III. CALCRIM No. 376
Defendant contends the trial court erred in instructing the jury with CALCRIM No. 376 (possession of recently stolen property) because it undermined his federal constitutional right to have a jury convict him only if it found him guilty beyond a reasonable doubt. The People claim the issue has been forfeited due to defense counsel's failure to raise any objection to the use of this instruction. We reject the People's assertion of waiver. When an appellant raises an issue that "asserts a violation of substantial constitutional rights," the matter is not waived for failure to object below. (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574.)
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, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) 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.)
In this case, 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 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. The supporting evidence need only to be slight and need not be enough by itself to prove guilt. You may consider how, when, and where 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 were convinced that each fact is essential to the conclusion that the defendant is guilty of that crime, has been proved beyond a reasonable doubt." (Italics added.)
Defendant contends use of the term "slight" rendered the instruction "constitutionally defective." In support of his contention, he cites the cases of United States v. Gray (5th Cir. 1980) 626 F.2d 494 (Gray); United States v. Hall (5th Cir. 1976) 525 F.2d 1254 (Hall); and U.S. v. Durrive (7th Cir. 1990) 902 F.2d 1221 (Durrive). These cases involved instructions regarding conspiracy charges. In Gray and Hall, conspiracy convictions were reversed on the grounds that "[t]he 'slight evidence' reference can only be seen as suffocating the 'reasonable doubt' reference." (Gray, supra, at p. 500; Hall, supra, at pp. 1255-1256.) In Durrive, the court found a jury instruction requiring "substantial evidence" in corroboration of the defendant's connection to a conspiracy to be unconstitutional. (Durrive, supra, at p. 1229, fn. 6.) Applying a similar analysis to this case, defendant argues that by giving CALCRIM No. 376, the "jury was instructed to utilize the wrong burden of proof . . . ." We disagree.
To begin with, as the People aptly note, the cases relied upon by defendant are inapposite to this case. The fact that defendant possessed recently stolen property is not "slight evidence" of his involvement in the burglary. Instead, "Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. [Citations.]" (People v. McFarland (1962) 58 Cal.2d 748, 754.
"Second, the inference that possession of stolen property creates is permissive, not mandatory. The case law is settled that requiring only slight corroborating evidence in support of a permissive inference, like the one that possession of stolen property creates, neither changes the prosecution's burden of proving every element of the offense nor otherwise violates the right to due process if, as here, the conclusion suggested is one that common sense and reason can justify 'in light of the proven facts before the jury.' [Citations.]
"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, 1035-1036; see also People v. Prieto (2003) 30 Cal.4th 226, 248.)
CALCRIM No. 2.15 is the predecessor to CALCRIM No. 376.
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Finally, CALCRIM No. 376 did not "reduce[] the burden of proof . . . convey[ing] to the jury that possession of stolen property plus any slight evidence of guilt equals proof beyond a reasonable doubt." The jury was instructed that the prosecutor had to prove each element of the charged offenses beyond a reasonable doubt. Defendant's claim that the jury failed to follow such instructions amounts to nothing more than mere speculation. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions. [Citation.]" (People v. Sanchez (2001) 26 Cal.4th 834, 852.) More importantly, the evidence of defendant's guilt was more than slight. The evidence before the jury included defendant's conduct, his possession of the stolen property the day after the burglary, the conversations between defendant and his girlfriend about the disposition of the stolen goods, the shoeprints that he left in the yard of the burglarized home, and his inconsistent stories to the police about where he obtained the stolen items. Given this evidence, CALCRIM No. 376 allowed a permissible inference that defendant's possession of the recently stolen property could corroborate that he was guilty of burglary.
IV. DISPOSITION
The oral pronouncement of sentencing is modified to stay the imposition of the prison term for receiving stolen property. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
CODRINGTON
J.