Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS231695, Timothy R. Walsh, Judge.
HALLER, J.
Jason Murphy appeals from a judgment convicting him of unlawful taking or driving a vehicle and receiving a stolen vehicle. He asserts the judgment must be reversed because the trial court erred by (1) instructing the jury in the language of CALCRIM No. 376 regarding the corroboration requirement for conviction based on possession of recently stolen property, and (2) admitting his prior conviction for unlawful taking or driving. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of August 15, 2009, Shawn Baker parked his mother-in-law's car on the street near a residence. The car was locked, but the car keys were left in the center console of the car. The next morning, Baker discovered the car was gone and notified the police.
Around 9:00 p.m. on August 18, 2009, Officer David Conley spotted the stolen car being driven on a street. Officer Conley activated his lights and siren, but the driver (later identified as Murphy) accelerated and attempted to evade him. Murphy drove the car at speeds up to about 60 miles per hour on surface streets, and then abandoned the car at the top of a steep residential driveway and fled on foot.
Officer Conley chased Murphy and repeatedly told him to stop. Murphy ran into some bushes and slid under a fence and into a drainage canal. Officer Conley followed and shot him with a taser gun. Murphy continued crawling through the bushes and then ran through several backyards. When backup patrol units arrived, Murphy finally stopped and laid down on the ground. After some initial resistance, Murphy walked with the officers to a patrol car. Officer Conley testified that he never lost sight of Murphy from the time he exited the vehicle until he was caught about 10 minutes later, except for about 30 seconds when Murphy was crawling through the bushes after being shot with the taser.
Testifying on his own behalf, Murphy claimed he was merely walking in the area when he encountered Officer Conley. He testified that Officer Conley yelled at him to stop as he was jogging across a busy street to avoid traffic. Murphy stated he did not take or drive the stolen car, and the reason he ran from the police was because he had marijuana in his possession and was on parole.
The jury convicted Murphy of unlawful taking or driving a vehicle and receiving a stolen vehicle, and the misdemeanor offenses of vehicular evasion of an officer and resisting an officer. He received a nine-year sentence, consisting of six years for the vehicular taking or driving offense (double the middle term based on a strike prior conviction) plus three years for three prior prison terms. Sentence on the receiving a stolen vehicle count was stayed.
DISCUSSION
I. Instruction on Corroboration Requirement for Guilt Based on Possession of Recently Stolen Property (CALCRIM No. 376)
Relevant to the offense of receiving a stolen vehicle, the trial court instructed the jury in the language of 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 receiving stolen property based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed the crime of receiving stolen property.
"The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of receiving stolen property.
"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." (Italics added.)
Murphy argues the instruction violated his constitutional rights by lessening the prosecution's burden to prove guilt beyond a reasonable doubt. Because defendant's instructional argument concerns his constitutional rights, we reject the Attorney General's forfeiture argument based on defense counsel's failure to object to the instruction before the trial court. (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574.)
Murphy contends that instructing the jury that only "slight" supporting evidence was needed to convict based on a defendant's possession of recently stolen property interfered with the jury's ability to weigh the evidence because it inferentially told the jury that the judge had determined the weight of the possession evidence. He posits there is no valid authority for instructing the jury that only slight corroborating evidence is needed to support guilt based on possession of stolen property, and the proper standard is that "possession of recently stolen property leads to a permissible inference that the person knew the property was stolen, but that the jury must determine guilt in light of such an inference, as well as all of the evidence in the case."
We agree with Murphy that the jury should properly consider the inference arising from the possession of recently stolen property, along with all the other evidence, to determine whether guilt has been established beyond a reasonable doubt. (See People v. McFarland (1962) 58 Cal.2d 748, 755.) CALCRIM No. 376 does not tell the jury otherwise. As recently explained by the California Supreme Court, the instruction benefits the defendant by "emphasiz[ing] that possession of stolen property, alone, is insufficient to sustain a conviction for a theft-related crime. [Citations.] In the presence of at least some corroborating evidence, it permits — but does not require — jurors to infer [guilt] from possession of stolen property...." (People v. Gamache (2010) 48 Cal.4th 347, 375.) To the extent the instruction tells the jury that the judge has made a determination of the weight of the possession evidence, the jury is told that the evidence has insufficient weight to alone support a conviction and that it requires corroborating evidence. (See People v. Najera (2008) 43 Cal.4th 1132, 1138 [mere possession of recently stolen property is insufficient for guilt because "there may be an innocent explanation for the circumstance of possession"].)
The Gamache case, and some of the other cases we cite below, discuss the CALJIC version of CALCRIM No. 376, which provides essentially the same instruction to the jury. (See CALJIC No. 2.15.)
Murphy argues the instruction tells the jury that possession of stolen property creates an "especially strong" inference of guilt, and the jury should then utilize the slight corroboration standard to find guilt. The instruction does not state this. Again, the instruction tells the jury that possession alone is not sufficient to support guilt, and that the jury may find guilt based on this evidence only if it is supported by at least some slight corroborating evidence. The instruction does not tell the jury that the possession evidence creates a strong inference of guilt, that slight evidence is sufficient to convict, or that it should ignore the other relevant evidence. The instruction merely cautions the jury that more than mere possession is needed to convict.
Murphy contends the instruction improperly pinpoints prosecution evidence because it implies what conclusion to draw from the evidence. This contention is likewise unavailing. Pinpoint instructions are improper if they are "argumentative instructions that imply certain conclusions from specified evidence." (People v. Yeoman (2003) 31 Cal.4th 93, 131.) In Yeoman, the court concluded the possession of stolen property instruction "has a proper purpose rather than [an improper] argumentative purpose" because it "informs the jury that conscious possession of recently stolen property is insufficient, without corroboration, to sustain a conviction." (Ibid.) The Yeoman court reasoned, " 'If the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence. ' " (Ibid.)
Moreover, although the instruction directs the jury's attention to possible evidence showing the defendant's possession of stolen property, it does not suggest that the jury should convict based on the evidence of possession in combination with slight corroborating evidence of guilt. The instruction merely tells the jury that it "may" convict based on the possession evidence if guilt is corroborated by other evidence and if guilt is proven beyond a reasonable doubt. (CALCRIM No. 376; see People v. Gamache, supra, 48 Cal.4th at p. 375; People v. Yeoman, supra, 31 Cal.4th at p. 131; People v. Snyder (2003) 112 Cal.App.4th 1200, 1226 [instruction concerning possession of stolen property creates permissive, not mandatory, inference of guilt based on possession plus corroborating evidence].) The instruction is not argumentative in favor of the prosecution, but rather is cautionary in favor of the defendant. (See People v. Yeoman, supra, 31 Cal.4th at p. 131.)
Murphy asserts the slight corroborating evidence rule should only be applied as an appellate review standard, and the jury should not be told it only needs to find slight supporting evidence to find guilt based on possession of stolen property. The courts have frequently recognized that when the jury's ability to base a conviction on a particular type of evidence is limited through the imposition of a corroborating-evidence requirement, the corroborating evidence need only be slight. (See People v. McFarland, supra, 58 Cal.2d at p. 754 [slight corroboration requirement for possession of recently stolen property]; People v. Solórzano (2007) 153 Cal.App.4th 1026, 1035-1036 [same]; People v. Snyder, supra, 112 Cal.App.4th at pp. 1225-1226 [same]; People v. Lewis (2001) 26 Cal.4th 334, 370 [slight corroboration requirement for accomplice testimony].) Because CALCRIM No. 376 sets forth a corroboration requirement, it was proper to inform the jury of the standard applicable to corroborating evidence.
To support his challenge to the slight corroborating evidence instruction, Murphy cites United States v. Gray (5th Cir. 1980) 626 F.2d 494. In Gray, the court concluded that the beyond-a-reasonable-doubt standard was "suffocate[ed]" by an instruction telling the jury that once a conspiracy is established the prosecution need only introduce "slight" evidence of the defendant's participation in the conspiracy. (Id. at p. 500.) Gray is inapposite because the defendant's participation in the conspiracy is an element of the charged conspiracy offense. CALCRIM No. 376 does not tell the jury that evidence of an element need only be slight, but merely states the required corroborating evidence may be slight.
There was no instructional error.
II. Prior Unlawful Taking or Driving Conviction
Murphy argues the trial court abused its discretion in admitting evidence of his prior conviction for unlawful taking or driving of a vehicle.
Background
Prior to trial, the prosecution moved to admit evidence of Murphy's prior conviction in a case in which he pleaded guilty to unlawful taking or driving a vehicle and receiving stolen property. The prosecutor explained the prior offense occurred in May 2008 when Murphy was driving a car that had been reported stolen a few days earlier. When the police attempted to stop him, he evaded them in a vehicular chase, fled on foot after he crashed the car, and was later apprehended in the area where he crashed. The vehicle had been stolen from a driveway when the car doors were unlocked and the keys were under the driver's seat. The prosecutor argued the facts of the current and past offenses were highly similar and were admissible on the issues of intent to deprive the owner of the car and knowledge that the car was stolen. Defense counsel opposed admission of the evidence, arguing that assuming Murphy was the person driving the car in the current case, the offenses were not sufficiently similar.
The trial court found the past offense was highly similar to the current charged offense. Both involved the taking of a vehicle outside a residence when the car keys were left in the car, a vehicular evasion when the police spotted the car a few days later, and flight on foot from the vehicle. The court noted the prosecution had the burden to prove intent and knowledge, and found the prior similar offense was relevant to support intent and knowledge for the current offense. The court found the evidence was "quite probative" on these issues and was not unduly prejudicial under Evidence Code section 352.
The prosecutor also asserted the evidence was admissible to show modus operandi, but the trial court rejected this ground of admissibility and found the evidence was not sufficiently similar for purposes of showing identity.
Analysis
Evidence of an offense committed by the defendant that is not charged in the current case is generally inadmissible for purposes of showing the defendant's criminal propensity, but it is admissible for the limited purpose of proving some other material fact such as intent or knowledge. (Evid. Code, § 1101; People v. Kipp (1998) 18 Cal.4th 349, 369.) To be relevant on intent or knowledge, the conduct during the past and current crimes must be sufficiently similar to support a rational inference that the defendant harbored the same intent or knowledge in each instance. (Kipp, supra, at p. 371; People v. Torres (1950) 98 Cal.App.2d 189, 192.) Because of the prejudice inherent in uncharged crimes evidence, the evidence must have substantial probative value, and the probative value must not be outweighed by the probability of undue prejudice, confusing the issues, or misleading the jury. (People v. Kipp, supra, 18 Cal.4th at p. 371 .) We review the trial court's rulings for abuse of discretion. (Id. at pp. 369, 371.)
To prove the offense of unlawful taking or driving of a vehicle, the prosecution had to establish Murphy intended to permanently or temporarily deprive the owner of the car. (Veh. Code, § 10851, subd. (a).) To prove the offense of receiving a stolen vehicle, the prosecution had to establish Murphy knew the car was stolen. (Pen. Code, § 496d, subd. (a).) On appeal, Murphy does not dispute the prior and current offenses were sufficiently similar to warrant admission on the issues of intent and knowledge. Rather, he argues the court should have excluded the evidence because his theory of defense was mistaken identity; i.e., that he was not the person seen by the police driving the stolen vehicle, and hence the issues of intent and knowledge were not in dispute. Because he was not disputing knowledge or intent, Murphy asserts the court should have excluded the evidence as irrelevant, cumulative, and more prejudicial than probative.
Defense counsel did not argue to the trial court that the uncharged crimes evidence should be excluded because intent and knowledge were not in dispute. Having failed to identify this ground of exclusion to the trial court, Murphy cannot raise it for the first time on appeal. (People v. Lindberg (2008) 45 Cal.4th 1, 25; Evid. Code, § 353.)
In any event, the contention fails on its merits. Contrary to Murphy's assertion, a defendant's not guilty plea puts in issue all the elements of the charges, and the prosecution is entitled to fully present all evidence that supports its case. (People v. Waidla (2000) 22 Cal.4th 690, 723 & fn. 5.) Further, a defendant's failure to dispute an issue does not necessarily foreclose the prosecution's presentation of relevant evidence on the issue. (Ibid.) The courts have noted that the " 'prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense.' " (People v. Ewoldt (1994)7 Cal.4th 380, 400, fn. 4.)
Murphy cites People v. Thompson (1980) 27 Cal.3d 303, 315, for the proposition that a not guilty plea is not sufficient to place all the elements of the offense at issue. Thompson has been disapproved on this point. (People v. Rowland (1992) 4 Cal.4th 238, 260; People v. Thornton (2000) 85 Cal.App.4th 44, 49.)
However, the trial court may consider the extent to which issues are disputed when evaluating if the potential for prejudice outweighs the probative value of the evidence. (See People v. Steele (2002) 27 Cal.4th 1230, 1243, 1246; People v. Thornton, supra, 85 Cal.App.4th at p. 49.) For example, potential prejudice may outweigh probative value when the uncharged crimes evidence is merely cumulative on an issue not reasonably subject to dispute. (See, e.g., People v. Balcom (1994) 7 Cal.4th 414, 423.)
Although Murphy's primary theory of defense was mistaken identity, he did not concede the issues of intent to deprive and knowledge that the vehicle was stolen. Indeed, in closing argument defense counsel noted there were no burglary tools inside the car, apparently to suggest that Murphy did not steal the car or know the car was stolen, and the prosecutor responded to this argument in his rebuttal closing argument. Thus, it is apparent the issues of intent to deprive and knowledge were in dispute notwithstanding the primary defense of mistaken identity.
Moreover, regardless of whether Murphy was disputing intent and knowledge, the trial court could reasonably conclude the prosecution should not be foreclosed from presenting evidence on these issues. (See People v. Steele, supra, 27 Cal.4th at p. 1243 [even if defendant conceded issue of intent, prosecution is still entitled to prove a "fact so central to the basic question of guilt as intent"].) This is not a case where it could not reasonably be disputed that whoever was driving the car necessarily knew it was stolen and intended to deprive the owner of the car. The car was stolen from the victim three days before the police spotted Murphy driving it, and there was no direct evidence that Murphy was the person who took the car. Once the jury concluded Murphy was the person driving the car, it still needed to decide if the prosecution had shown beyond a reasonable doubt that Murphy had not acquired the vehicle in a legitimate fashion.
Further, there was nothing inflammatory about the facts of the prior offense that might have evoked an emotional bias in the jury. (See People v. Doolin (2009) 45 Cal.4th 390, 439.) The trial court could reasonably conclude the prosecution was entitled to present the uncharged offense evidence to support the required elements of intent and knowledge. We note the trial court properly instructed the jury that it could consider the uncharged offense evidence solely on the issues of intent and knowledge, not to infer Murphy had a criminal disposition, and we presume the jury followed this instruction. (People v. Lindberg, supra, 45 Cal.4th at pp. 25-26.)
The court did not abuse its discretion in admitting the evidence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.