Opinion
D070883
09-21-2017
THE PEOPLE, Plaintiff and Respondent, v. CURTIS ARTHUR JENNINGS, Defendant and Appellant.
C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD261772) APPEAL from a judgment of the Superior Court of San Diego County, Yvonne E. Campos, Judge. Reversed. C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Curtis Arthur Jennings guilty of burglary (Pen. Code, § 459) (count 1) and receiving stolen property valued at over $950 (§ 496, subd. (a)) (count 2). The offenses arose out of the burglary of the maintenance shed at a condominium complex, during which valuable tools and construction materials were taken.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Jennings contends that the trial court erred in denying a motion for acquittal (§ 1118.1) that defense counsel made after the People rested their case at trial. We conclude that the trial court properly denied the motion because the People presented sufficient evidence of Jennings's commission of the charged crimes.
Jennings also claims that the trial court committed reversible error in improperly excluding, on hearsay and other grounds, evidence that the defense sought to offer with respect to the central contested issue in the case, namely, Jennings's state of mind as to whether he knew that property taken from the maintenance shed had been stolen.
The People expressly concede that the trial court committed numerous "errors" in excluding Jennings's testimony on this issue. We agree that the trial court made numerous erroneous evidentiary rulings, and we commend the People for electing not to defend the rulings on appeal.
By our count, Jennings's opening brief identified at least 12 such instances of erroneous evidentiary rulings during defense counsel's direct examination of Jennings, alone. In their respondent's brief, the People do not argue that a single one of these rulings was proper.
However, we reject the People's argument that the trial court's erroneous rulings were harmless "bumps along the way," that did not impede Jennings's ability to "fluidly present his defense." In addition to the sheer number of errors, the court's erroneous rulings dramatically encumbered the coherent presentation of the defense. In addition, the trial court's rulings precluded the defense from presenting several different categories of evidence related to the critical issue of Jennings's state of mind in obtaining the stolen property. Jennings's state of mind was the key issue in the case, and was related to required elements of both charges. Moreover, the evidence presented at trial that Jennings knew that the property taken from the shed had been stolen was far from overwhelming. Under these circumstances, we conclude that the trial court's evidentiary errors necessitate reversal under any standard of prejudice.
Finally, we reject Jennings's contention that there is no substantial evidence in the record that the value of the stolen property that he received was greater than $950.
Accordingly, we reverse the judgment. The People may retry Jennings on both charges on remand, if they so elect.
Jennings also contends that the trial court erred in failing to instruct the jury properly with respect to how to value the stolen property charged in count 2. Specifically, Jennings argues that the trial court erred in failing to instruct the jury to "use fair market value instead of retail replacement value," and erred in failing to instruct the jury "how to calculate fair market value." In light of our reversal of the conviction of count 2 on another ground, we need not address this claim.
As discussed in the text, we reject Jennings's contention that the trial court erred in denying his motion for acquittal and his claim that there is not substantial evidence in the record that the value of the property that he received exceeded $950. Thus, principles of double jeopardy do not bar his retrial on the charged offenses.
II.
FACTUAL BACKGROUND
A. The People's evidence
At approximately 6:30 one morning in February 2015, Jennings drove his truck to a condominium complex where he, and three other men, loaded the truck with various construction materials and tools taken from the complex's maintenance shed. Two of the men, including Jennings, remained at the truck, while the other two men went back and forth between the truck and the shed. After loading the truck for at least 30 minutes, the men left in two different vehicles—Jennings's truck and a gray car that was also at the scene.
The owner of the items in the shed, the condominium complex's homeowners' association, did not give the men permission to take the items. The men stole two ladders, an industrial drain snake, electrical wire, ten large buckets of paint, two power washers, fluorescent and incandescent light bulbs, nails, a gas blower, and fiberglass sheeting.
Although there were no signs of forced entry into the shed, a recently fired former employee of a company that performed maintenance at the complex still had access to the shed.
While the men were loading the truck, a neighbor who became suspicious of the men's actions took a photograph of the truck, which captured an image of the license plate. From the photograph of the license plate, police were able to identify the truck as belonging to Jennings.
A little over a week after the burglary, the police searched Jennings's garage and a room adjacent to the garage and found some of the stolen items. B. The defense
Jennings testified that he went to the condominium complex on the morning of the offenses after receiving a telephone call from his friend, Jesse Denton. Jennings stated that he went to the complex in order to purchase some supplies that were left over after some men working at the complex had completed a remodel of two of the condominiums at the complex. Jennings said that he negotiated to purchase paint, fiberglass resin, fiberglass sheets, a ladder, a blower, and a pressure washer. C. Rebuttal evidence
A police officer who interviewed Jennings at the time of the search of his garage testified that Jennings made statements concerning the circumstances of the manner by which he acquired the property in the garage that were not consistent with his trial testimony. For example, the officer testified that Jennings told him that he had gone to the condominium complex on the morning in question after his friend "Darren" called him. At trial, as noted above, Jennings testified that he had gone to the complex after "Jesse" phoned him.
III.
DISCUSSION
A. The trial court properly denied Jennings's motion for acquittal
Jennings contends that the trial court erred in denying his motion for acquittal on the charges of burglary (§459) (count 1) and receiving stolen property valued over $950 (§ 496, subd. (a)) (count 2). Jennings argues that, at the close of the prosecution's case, there was no evidence from which a reasonable jury could have found that he "knew a burglary was underway or that the property he possessed was stolen." (Boldface omitted.)
1. Governing law and standard of review
a. The law governing a motion for acquittal
Section 1118.1 provides in relevant part:
"In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
" 'The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' [Citation.] 'The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.' [Citations.] The question 'is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.' [Citation.] The sufficiency of the evidence is tested at the point the motion is made." (People v. Stevens (2007) 41 Cal.4th 182, 200 (Stevens).)
We review independently a trial court's ruling denying a motion for acquittal under section 1118.1 to determine whether the evidence presented at the time the motion was made was sufficient to support a conviction. (Stevens, supra, 41 Cal.4th at p. 200.)
b. Relevant law pertaining to the substantive offenses
"The crime of burglary consists of an act—unlawful entry—accompanied by the 'intent to commit grand or petit larceny or any felony.' (§ 459.)" (People v. Montoya (1994) 7 Cal.4th 1027, 1041 (Montoya).) A person who aids and abets a burglary is also guilty of burglary. (Id. at pp. 1042-1046.) " 'An aider and abettor is one who acts "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' " (People v. Smith (2014) 60 Cal.4th 603, 611 (Smith), italics altered.)
"To establish guilt of the offense of receiving stolen property proof of three elements is required: the property must have been stolen, the accused must have received it in his possession, and he must have known that it was stolen." (People v. Martin (1973) 9 Cal.3d 687, 695 (Martin), italics added.)
In People v. Vann (1974) 12 Cal.3d 220, the Supreme Court discussed the quantum of evidence necessary to prove a defendant's knowledge that property had been stolen in order to prove the crime of receiving stolen property:
"Knowledge that property was stolen can seldom be proved by direct evidence and resort must often be made to circumstantial evidence. However, no distinction is made between direct and circumstantial evidence in the degree of proof required. [Citation.] '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.' " (Id. at p. 224, italics added.)
Similarly, in People v. Anderson (1989) 210 Cal.App.3d 414 (Anderson), this court explained:
"A long line of authority . . . establishes that proof of knowing possession by a defendant of recently stolen property raises a strong inference of the other element of the crime: the defendant's knowledge of the tainted nature of the property. This inference is so substantial that only 'slight' additional corroborating evidence need be adduced in order to permit a finding of guilty." (Id. at p. 421.)
The slight corroboration requirement applies to numerous theft-related crimes, including burglary. (See, e.g., People v. Gamache (2010) 48 Cal.4th 347, 375 [instruction informing the jury of slight corroboration requirement "permits—but does not require—jurors to infer from possession of stolen property guilt of a related offense such as robbery or burglary"].)
2. Application
The People presented evidence during their case in chief that, nine days after the burglary, Jennings had several of the items stolen from the maintenance shed in his garage. Nine days is clearly sufficiently "recent" possession of stolen property to support an inference, upon slight corroboration, of Jennings's knowledge of the stolen nature of the property. (See Anderson, supra, 210 Cal.App.3d at p. 422 ["we believe it to have been well within reason for a jury to have determined that possession within four and a half months, and certainly possession within approximately one month, of the theft should lead to an inference of knowledge of the stolen nature of the property" (italics added)].)
Moreover, Jennings concedes that the People presented evidence that he "was at the scene of the burglary and helped load items into his truck." Jennings also agrees that it is undisputed that the items taken from the condominium complex's maintenance shed were, in fact, stolen. Thus, the People presented evidence that Jennings obtained possession of stolen goods (of substantial value) by helping men who were actively burglarizing a condominium complex's maintenance shed load the stolen goods into his truck. The relatively early hour, 6:30 a.m., at which the burglary took place, while far from dispositive, supports the inference that Jennings knew that criminal activity was afoot.
As discussed in part III.C, post, the People presented evidence that the replacement cost of the items taken exceeded $6,000.
We acknowledge that the People presented no direct evidence that Jennings knew that a burglary was ongoing and that the items that he was helping load in his truck were stolen. Further, the circumstantial evidence of Jennings's knowledge, set forth in the previous paragraph was, to put it bluntly, thin. However, given that "[c]atching a defendant with the goods in possession shortly after a theft rationally suggests a connection to and knowledge of the crime" (Anderson, supra, 210 Cal.App.3d at p. 421, italics added), we conclude that undisputed evidence of Jennings's possession of the stolen goods shortly after the burglary, when considered with the People's presentation of evidence of the circumstances under which he obtained those goods, constitutes sufficient evidence from which a reasonable jury could infer that Jennings had knowledge that a burglary was ongoing and that he was loading stolen property into his truck. B. The trial court committed reversible error in excluding evidence pertaining to Jennings's state of mind near the time of the burglary
Jennings claims that the trial court erred in excluding evidence pertaining to his state of mind near the time of the burglary that was relevant to establish his defense that he was unaware that a burglary was in progress and that he was receiving stolen property.
1. Standard of review
We review the trial court's evidentiary rulings for an abuse of discretion. (See, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1113 [abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence].)
A proper exercise of discretion is " 'neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Exercises of discretion must be " 'grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' " (Ibid.)
2. Factual and procedural background
Jennings contends that the trial court erred in sustaining numerous objections by the prosecutor to his testimony at trial related to three different lines of inquiry pertaining to his state of mind near the time of the burglary.
a. Rulings excluding evidence pertaining to the reason Jennings went to the condominium complex on the morning of the burglary
Jennings testified on direct examination that he had received a telephone call from a friend of his named Jesse Denton at around 6:00 a.m. on the morning of the burglary. Shortly thereafter, the trial court sustained several objections to defense counsel's questions seeking to elicit evidence pertaining to why Jennings went to the condominium complex on the morning of the burglary.
"[Defense counsel]: And what was the reason for the call?
"[Jennings]: He wanted --
"[Prosecutor]: Objection. Hearsay.
"[The court]: Sustained. [¶] You may rephrase the question.
"[Defense counsel]: What did he ask you to do?
"[The prosecutor]: Objection. Hearsay.
"[The court]: Sustained."
Shortly thereafter, the trial court sustained additional hearsay objections to evidence pertaining to the phone call between Denton and Jennings:
"[Defense counsel]: What did you do after the phone call from Jesse Denton?
"[Jennings]: Well, the phone call was for the purpose --
"[Prosecutor]: Objection. Calling for hearsay.
"[The court]: Sustained. Her question was what did you do after the phone call. You have to listen to the question and answer the question please.
"[Jennings]: After the phone call I went to the place where Mr. Denton told me to go to, which was his apartment complex on Ashford.
"[The prosecutor]: Objection. Misstatement. Again, it has hearsay in it.
"[Defense counsel]: Have you [-]
"[The court]: Counsel, hold on. If there's an objection, I have to rule. If you've got something to object to are you asking for the Court to strike the answer?
"[The prosecutor]: Yes, your Honor.
"[The court]: Okay. Motion granted. Disregard the last answer."
Defense counsel then asked how Jennings had known to go to the condominium complex at which the burglary took place:
"[Defense counsel]: How did you know to go to [the] Ashford Street address?
"[The prosecutor]: Objection. Calling for hearsay.
"[Defense counsel]: May I make an offer of proof?
"[The court]: No, you can rephrase it in a way such that it doesn't have to call for hearsay."
After turning to other topics, defense counsel again attempted to make an offer of proof concerning the nonhearsay nature of the testimony counsel sought to elicit concerning this issue. The trial court rejected counsel's request and informed the jury that defense lawyers generally are not skilled in direct examination:
"[Defense counsel]: Your Honor, I have an offer of proof on this line.
"[The court]: No.
"[Defense counsel]: It's a nonhearsay purpose.
"[The court]: You can ask him in a nonleading manner. I know that -- [¶] Here is what happens, folks. . . . [P]rosecutors, always have to do direct examination. So they generally are really good at that. Defense counsel in all types of cases specialize in cross-examination, so they're really good at that. When they flip sides and they're trying the other, it's not always as easy. [¶] So we're going to step back, and you can ask it in a nonleading manner, and I know that you can.
"[Defense counsel]: Thank you, your Honor. My offer of poof was the conversation earlier in the morning was a nonhearsay purpose to make him go to the Ashford place in the first place.
"[The court]: Well, speaking objections don't help your cause. Just restate the question of the witness."
b. Rulings excluding evidence pertaining to Jennings's state of mind during the burglary
Jennings also stated that, after arriving in the parking lot of the condominium complex, "[t]wo other gentlemen started coming out that [Denton] worked with and [began] loading the truck up with different supplies." The following colloquy then occurred:
"[Defense counsel]: Did you know where they came from?
"[Jennings]: Well, they told me they came from --
"[The court]: Hold on. Hold on. Hold on.
"[The prosecutor]: Objection. Hearsay.
"[The court]: Okay. Sustained."
Shortly thereafter, defense counsel asked Jennings what he thought the other men were doing:
"[Defense counsel]: And at that time what did you think they were doing?
"[The prosecutor]: Objection. Speculation.
"[The court]: Sustained. If he doesn't see him and he didn't go there, then he doesn't know what they were doing."
Immediately thereafter, the trial court sustained another hearsay objection:
"[Defense counsel]: When they -- did they ask your permission to lower --
"[The prosecutor]: Objection. Calls for hearsay.
"[The court]: Sustained. [¶] You want to rephrase your question in a nonhearsay manner."
Defense counsel returned to this line of inquiry later during his examination, and the court sustained additional objections:
"[Defense counsel]: Where did you think they [the men getting the items to load Jennings's truck] were coming from?
"[Jennings]: They said --
"[The prosecutor]: Objection. Speculation.
"[The court]: Sustained. [¶] You may ask another question.
"[Defense counsel]: What did you think in your mind that they were coming from?
"[The prosecutor]: Objection. Relevance.
"[The court]: Sustained. [¶] You may ask another question."
c. Rulings excluding evidence pertaining to the manner by which Jennings acquired some of the property taken from the shed
Defense counsel also asked Jennings about what he and the men loading the truck talked about. However, the court sustained the following objections to such inquiries:
"[Defense counsel]: What did you talk about?
"[Jennings]: I talked about purchasing --
"[The prosecutor]: Objection. Hearsay.
"[The court]: Depends. [¶] Sir . . . actually, I will sustain. [¶] Rephrase your question so it's clear and it's a nonhearsay statement.
"[The prosecutor]: Motion to strike as a limited response.
"[The court]: Okay. I will grant that. Disregard the last answer . . . ."
The court also sustained objections to testimony concerning the price that Jennings allegedly negotiated for some of the goods taken from the shed:
"[Defense counsel]: Now, how much was the price that you negotiated?
"[The prosecutor]: Objection. Calls for hearsay.
"[The court]: Sustained. [¶] You can rephrase it."
In addition to the rulings quoted above, Jennings contends that the trial court erred in making several other evidentiary rulings, many of which are similar to those quoted in this section. We need not address these additional contentions in light of our conclusion that the trial court committed reversible error in sustaining the objections referenced in the text.
3. The court committed numerous errors in excluding evidence pertaining to Jennings's state of mind near the time of the burglary
a. Governing law
i. The requisite state of mind necessary to prove the charged offenses
As outlined in part III.A.1.b, ante, in order to prove that Jennings committed a burglary, the People had to establish that Jennings either entered the shed with the intent to commit a larceny or any felony (see Montoya, supra, 7 Cal.4th at p. 1041) or that Jennings had knowledge that others were committing a burglary and that he acted with the intent to facilitate the burglary (see Smith, supra, 60 Cal.4th at p. 611).
In order to prove that Jennings committed the crime of receiving stolen property, the People were required to establish that Jennings knew the property was stolen. (Martin, supra, 9 Cal.3d at p. 695.)
Thus, as the prosecutor informed the jury during his closing argument, the critical issue as to both counts was, "determining what [Jennings's] knowledge and intent was when the burglary occurred." (Italics added.)
ii. Applicable evidentiary principles
(1) Relevant evidence
Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.)
(2) Hearsay evidence
" 'Hearsay evidence,' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).)
(3) Nonhearsay evidence offered to prove a defendant's state of mind
Out-of-court statements may be admitted for a nonhearsay purpose—i.e., to establish something other than the truth of the matter asserted in the statement. (People v. Hill (1992) 3 Cal.4th 959, 987 (Hill).) For example, a statement that is offered to help explain a defendant's "state of mind and conduct" and is not offered for the truth of the matter asserted, is not hearsay. (Ibid.)
The Supreme Court explained this well-established principle of evidence in People v. Livingston (2012) 53 Cal.4th 1145 (Livingston):
" ' "[O]ne important category of nonhearsay evidence [is] evidence of a declarant's statement that is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief. The statement is not hearsay, since it is the hearer's reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement." ' " (Id. at p. 1162.)
"The nonhearsay purpose must be relevant for the statement to be admissible for that purpose." (Livingston, supra, 53 Cal.4th at p. 1162.)
b. Application
The trial court erred repeatedly in sustaining hearsay objections to questions designed to elicit evidence relevant to Jennings's state of mind near the time of the burglary. As the People state in their brief, "[t]here appears to have been some misunderstanding on the contours of hearsay law; only some, not all, out-of-court statements amount to hearsay."
To begin with, the trial court erred in sustaining numerous objections to questions designed to elicit testimony pertaining to Jennings's phone call with Denton prior to the burglary. The defense was not attempting to offer these statements for their truth, but rather, to establish Jennings's "state of mind and conduct" (Hill, supra, 3 Cal.4th at p. 987) in traveling to the condominium complex on the day of the burglary. The People concede the error, explaining:
"[D]efense counsel started her direct examination of [Jennings] by asking about why he went to the condominium complex. His attempted response that his friend told him to go would not have been hearsay. The friend's directive language asserted nothing and certainly was not being offered for the truth of anything the friend stated. Yet, the prosecutor objected on hearsay grounds and the court sustained the objection."
Similarly, the trial court erred in sustaining hearsay objections to a second line of questioning related to what the men who were burglarizing the shed said to Jennings during the burglary. Again, the proffered evidence was not offered to prove the truth of what Jennings was told, but rather, to prove that Jennings lacked knowledge that a burglary was occurring and that Jennings was told that he was purchasing some supplies that were left over from a remodeling job.
For a related reason, the trial court also erred in sustaining two "speculation" objections to this line of questioning. As the People explain in conceding error with respect to these rulings:
"[D]efense counsel asked [Jennings] what he believed the men loading his truck were doing as they kept going back and forth from his truck to where they were going. The prosecutor objected that the answer would be speculative. [Citation.] Not true. If offered for the
sake of establishing [Jennings's] belief (or his state of mind), there was no speculation."
The trial court also erred in sustaining a relevance objection to defense counsel's question, "What did you think in your mind that they [the men loading the truck] were coming from?" As discussed above, Jennings's state of mind with respect to the other men's activities who were burglarizing the shed was highly relevant to the charged offenses, and was crucial to his defense.
The trial court also erred in sustaining hearsay objections to questions about Jennings's negotiations to purchase some of the goods taken from the shed. This evidence was offered not to prove the truth of the matters asserted in those negotiations but to show Jennings's state of mind with respect to whether the goods had been stolen.
As noted in part I, ante, the People do not contend that any of the 12 trial court rulings quoted in part III.B, ante, were correct. For the reasons discussed above, we conclude that the trial court erred with respect to each of these rulings.
As noted in footnote 5, ante, Jennings claims in his briefing on appeal that the trial court erred with respect to several additional evidentiary rulings beyond those that we have quoted in this opinion. We need not address the propriety of these rulings in order to determine that reversal is required based on the rulings that we have addressed. However, we note that the People do not attempt to defend any of these additional rulings in their brief in this court.
4. The errors require reversal
A judgment may be reversed on appeal for improper exclusion of evidence only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see, e.g., People v. DeHoyos (2013) 57 Cal.4th 79, 131 [applying Watson in determining whether trial court's erroneous exclusion of evidence was prejudicial].) Reasonably probable in this context "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, citing Watson, supra, at p. 837.)
In assessing prejudice, we begin by observing that the sheer number of errors weighs heavily in favor of reversal. Moreover, the errors impacted multiple lines of inquiry pertaining to the core of Jennings's defense, i.e. that he was unaware that a burglary had occurred and that he was in possession of stolen goods. The court's rulings dramatically limited Jennings's ability to present evidence as to why he went to the scene of the burglary, what he heard and observed while he was there, and how he came to possess the goods that were found in his garage.
The court magnified the prejudicial impact of its errors by suggesting that defense counsel was posing improper questions, refusing on two occasions to permit defense counsel to make an offer of proof with respect to the nonhearsay purpose of the testimony she sought to elicit, and telling the jury that defense lawyers are generally not very effective at direct examination.
We can appreciate the trial court's concern with speaking objections or an offer of proof made in the jury's presence. Counsel can be directed to sidebar or asked to wait until a convenient break in the proceedings. However, a court's concern with speaking objections does not justify a wholesale refusal to entertain an offer of proof for purposes of making an appellate record or comments to the jury denigrating defense lawyers.
Jennings is also correct that the trial court's rulings "forced him to communicate to the jury with half-statements, [and] awkwardly limited [his] responses." We agree with Jennings that the court's rulings, "forced [the defense] to leap from one event to the next without explaining intervening events or the reasons for [Jennings's] conduct."
Moreover, the evidence that Jennings was guilty of the charged crimes was far from overwhelming. As discussed in part III.A, ante, the People's case in chief contained no direct evidence of Jennings's state of mind at the time of the burglary, and very little circumstantial evidence of such. In addition, the circumstances surrounding the taking of the items from the maintenance shed were not obviously illicit.
The People's arguments in support of the harmlessness of the trial court's errors are not persuasive. The People acknowledge that, due to the trial court's erroneous rulings, "[Jennings's] testimony may have initially emerged a bit disjointed." However, they contend that, "by the end, he was able to fluidly present his defense . . . ." We disagree. As discussed above, the trial court's repeated and constant erroneous rulings materially affected the presentation of Jennings's testimony, and impeded the defense's attempt to present a coherent narrative to the jury.
The People's contention that Jennings was able to "fully present," his defense to the jury is equally unpersuasive. On the contrary, as discussed above, the trial court's rulings materially limited the presentation of that defense.
Finally, while the People contend that the jury would have found that Jennings lacked credibility even without the erroneous rulings, we cannot conclude that there is no reasonable probability that Jennings would have achieved a more favorable result given the magnitude of the court's errors and the lack of overwhelming evidence of Jennings's guilt.
Accordingly, we conclude that the trial court's numerous evidentiary errors mandate reversal under any standard of prejudice. C. There is substantial evidence in the record that Jennings received stolen property worth more than $950
In light of our conclusion in the text that the trial court's state law evidentiary errors require reversal under Watson, we need not consider whether the Chapman v. California (1967) 386 U.S. 18 beyond a reasonable doubt standard of prejudice applies on the ground that the trial court's errors were so pervasive as to violate Jennings's federal constitutional right to present a defense. (See People v. Boyette (2002) 29 Cal.4th 381, 428 [" 'Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense' "].)
Jennings contends that there is not substantial evidence in the record that the value of the stolen property that he received was greater than $950.
1. Governing law
a. Standard of review
In determining the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
b. Receiving stolen property
Section 496, subdivision (a) provides in relevant part:
"Every person who buys or receives any property that has been stolen . . . knowing the property to be so stolen . . . shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor . . . ."
"To establish guilt of the offense of receiving stolen property proof of three elements is required: the property must have been stolen, the accused must have received it in his possession, and he must have known that it was stolen." (Martin, supra, 9 Cal.3d at p. 695.)
We assume for purposes of this decision that the People and Jennings are correct that the fair market value test applies in determining the value of stolen property under section 496, subdivision (a), as it does under several theft statutes. " '[F]air market value' means the highest price obtainable in the market place" for a good. (People v. Pena (1977) 68 Cal.App.3d 100, 104.)
The $950 threshold was added to section 496, subdivision (a) in 2014 as part of Proposition 47. (People v. Sweeney (2016) 4 Cal.App.5th 295, 299.) While we are not aware of any currently published authority specifically addressing whether the fair market value test applies to section 496, subdivision (a), the Sweeney court referred to receiving stolen property as a "theft-related offense," and "courts have long required section 484's 'reasonable and fair market value' test to be used for theft crimes that contained a value threshold." (People v. Romanowski (2017) 2 Cal.5th 903, 914.) Further, both parties agree that the fair market value test applies.
2. Application
In his brief on appeal, Jennings contends that there is insufficient evidence in the record that the fair market value of the property recovered in his garage exceeded $950. Even assuming that this is so, the jury could have inferred from the evidence that all of the property taken from the maintenance shed was placed in his truck and thus, that Jennings received all of the property from the shed for the time that it was in his truck. The elements of receiving stolen property do not require that the property be recovered in the defendant's possession. (Martin, supra, 9 Cal.3d at p. 695 [listing elements as "the property must have been stolen, the accused must have received it in his possession, and he must have known that it was stolen"].)
We emphasize that we do not decide this question.
For example, a neighbor stated that the men loaded "the truck" with goods taken from the maintenance shed that was later determined to be Jennings's truck. The neighbor also stated that she saw "four guys loading up a truck of the maintenance equipment," and that it looked like "everything and the kitchen sink." At another point in her testimony, the neighbor stated, "there was so much stuff going into the truck." Jennings also testified that he drove his truck to the condominium complex and that while he was there, some men began "loading the truck up with different supplies." Jennings also suggested that he moved the goods taken from the storage shed to a job site in Lakeside. Neither the neighbor, nor Jennings, testified at trial that the men placed any of the stolen items in the second vehicle that was at the scene of the burglary. While Jennings told a police officer that some of the items taken from the shed had been placed in the second vehicle, the jury was not required to find that Jennings had been truthful with the officer.
Further, there is evidence in the record that the fair market value of the property stolen (and by inference, received by Jennings when he and the other men placed it in his truck) greatly exceeded $950. For example, a maintenance manager testified that the replacement cost of the items stolen included the following: an industrial drain snake ($2,500), two power washers ($900 for both), a gas blower ($200), a box of fluorescent lightbulbs ($65), two ladders ($450 for both), and ten buckets of paint ($2,000). Thus, the People presented evidence that the replacement cost of the items stolen totaled $6,115. Even assuming that the fair market value of the items was significantly less than the replacement cost, the People presented sufficient evidence from which a jury could infer that the fair market value of the stolen property received by Jennings exceeded $950.
The maintenance manager testified that the replacement costs to which he was testifying included a 30 percent markup charged to the homeowner's association by the maintenance company. We need not address whether it would be proper to include such markup in the fair market value of the items. Even without the markup, the replacement costs far exceeded $950 and the jury could infer from the manager's testimony that the fair market value of the items also exceeded $950. --------
Accordingly, we conclude that there is substantial evidence in the record that the stolen property that was in Jennings's possession was worth more than $950.
IV.
DISPOSITION
The judgment is reversed.
AARON, J. WE CONCUR: O'ROURKE, Acting P. J. DATO, J.