Arthur Martin, 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, Senior Assistant Attorney General, Eric A. Swenson and Kristine A. Gutierrez and Allison V. Acosta, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16NF1033) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed in part, reversed in part, and remanded. Arthur Martin, 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, Senior Assistant Attorney General, Eric A. Swenson and Kristine A. Gutierrez and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
Jonas Michael Riley McClanahan appeals from a judgment after the jury convicted him of eight counts of first degree burglary and one count of attempted first degree burglary. McClanahan argues the following: insufficient evidence supported six of his first degree burglary convictions because there was only evidence he possessed stolen property; insufficient evidence supported two of his first degree burglary convictions because the property was not "recently" stolen; and the trial court erred by instructing the jury with modified versions of CALCRIM Nos. 376 and 3220. After briefing was complete, we invited the parties to file supplemental letter briefs on the issue of whether the trial court erred by instructing the jury with CALCRIM No. 375.
As we explain below, we conclude the following: the trial court erred by instructing the jury with CALCRIM No. 375 and that error was prejudicial; sufficient evidence supported four of his first degree burglary convictions and insufficient evidence supported two of his first degree burglary convictions; the court did not err by instructing the jury with a modified version of CALCRIM No. 376; and because we reverse six of his convictions, we must reverse the aggregate loss enhancements and need not address his claim concerning CALCRIM No. 3220. We affirm the judgment in part, reverse it in part, and remand the matter.
An amended information charged McClanahan with numerous offenses, some of which were dismissed before and during trial. The information alleged the following: 13 counts of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a), 462, subd. (a), all further statutory references are to the Penal Code, unless otherwise indicated); receiving stolen property (§ 496, subd. (a)); and attempted first degree residential burglary (§§ 664, subd. (a), 459, 460, subd. (a)). As to all counts, the information alleged he was ineligible for probation because he committed the crime of theft of property valued in excess of $100,000 (§ 1203.045, subd. (a)), and he intentionally took, damaged, or destroyed property valued in excess of $200,000 (§ 12022.6, subd. (a)(2)). We recite only those facts relevant to the issues on appeal. I. Prosecution's Case
On the prosecution's motion, the trial court dismissed the following counts: before trial—counts 4, 7, and 8; and during trial—counts 14 and 15. --------
During voir dire, in response to a juror's comment suggesting the juror could not consider the counts individually, the trial court told counsel to review CALCRIM No. 375. The next day, the prosecutor stated he wanted to use charged offenses as evidence to prove other charged offenses. When the court asked him the theory of admissibility, he replied a common plan or scheme. After the prosecutor highlighted the similarities and acknowledged the differences, the court said it would consider the prosecutor's request after it heard the evidence. Later, the prosecutor filed a motion to allow the jury to consider other charged offenses to establish the charged offenses (Evid. Code, § 1101, subd. (b)). A. Home of K.L. and C.L.—December 23, 2014 (Count 6)
K.L. and C.L. left their upscale Yorba Linda home to spend the holidays out-of-state. The next morning, a neighbor called K.L. and told her that their garage door was open and both cars were gone. They had left K.L.'s BMW parked in the garage. When they returned home, the side door to the garage and the interior door from the garage to the house were both damaged. The house power had been turned off at the circuit breaker box. The safe and its contents (gold, coins, and cash worth about $5,000) were missing from the master bedroom. There were wheel tracks on the carpet leading from the bedroom to the garage. Jewelry worth about $15,000 was also gone. A pillowcase was missing from the bed. There was a ski mask on the garage floor—testing later revealed McClanahan could not be excluded as the major contributor to the DNA on the mask. C.L. subsequently recovered the BMW. B. Home of T.F. and R.F.—February 4, 2015 (Count 13)
One evening, T.F. and her family were not at their upscale Anaheim Hills home. When they returned home that evening, T.F. went into the office and saw the cabinet doors were open. Her husband noticed the house was in disarray. The French door leading to the master bedroom was broken, and a window was cracked. Missing items included T.F.'s deceased grandmother's watch worth $20,000, her and her husband's wedding rings, her husband's Rolex watch worth $12,000, other jewelry, and a "couple thousand dollars" in cash. Her adopted children's citizenship documents were missing from a safe, which had been pried open. Over a year later, T.F. and her husband went to the Anaheim Police Department (APD) and identified some of their coins. C. Home of J.R. and O.R.—August 22, 2015 (Count 9)
J.R. and his wife, O.R., traveled from their upscale Anaheim home to Laguna Beach. The next day, J.R. returned home and when he pulled into the garage he noticed his gun safe, which contained eight or nine guns, was gone. The door to the garage and its window were broken. A French door to the master bedroom was shattered. A safe from the master bedroom closet was gone. It contained $50,000 in cash, designer watches worth about $75,000, and important documents. Also missing from that bedroom was O.R.'s jewelry and coins. The following year, J.R. and O.R. went to the APD and identified coins. O.R. believed the coins were hers but she was not sure. D. Home of I.M. and Family—August 29, 2015 (Count 10)
One evening, I.M. and her family left their upscale Anaheim home about 5:30 p.m. When they returned about 9:00 p.m., I.M. went into her bedroom and saw a French door was shattered and the closet ransacked. Missing items included her and her husband's diamond rings, her costume jewelry, her coin collection, her husband's Rolex watch, and expensive bottles of tequila. The following year, I.M. went to the APD and identified five pieces of jewelry. She felt some of the coins were hers, but she could not prove it. E. Home of S.L. and Family—January 1, 2016 (Count 11)
N.L. was staying at her parents' upscale Yorba Linda house while her family was away. When she returned home one night, she opened the garage door and noticed the door from the garage to the house was propped open with a towel. The house had been ransacked. After confirming none of her family members had been to the house, she called the police. N.L.'s mother, S.L., returned home the next day. Missing items from the master bedroom included her wedding ring, her watch, her husband's Rolex watch, other jewelry, six designer handbags, and N.L.'s laptop computer. The value of the stolen property was about $40,000. Months later, S.L. went to the APD and identified three pieces of jewelry. F. Home of D.D. and Family—January 18, 2016 (Count 1)
D.D. operated a sports memorabilia business from his upscale Anaheim Hills home. When D.D. and his family returned home from a vacation, they opened the garage door, but the lights did not turn on. The lens covers and light bulbs were on the floor, and the interior door from the garage to the house was open. When D.D. went inside, he noticed the frame on a painting was broken, and he called the police. The house's front door had been forced open, and the interior was ransacked. The safe and its contents ($1,000 in cash and coins) was missing from the master bedroom closet. He was also missing several thousand certified, graded sports cards, worth a total of $30,000 to $40,000 and tens of thousands of other cards. They found a pillowcase full of cards on the floor. Missing items also included a painting worth $2,000 or $3,000, antique silverware, a television worth about $2,500, about 50 signed sports lithographs, and about 50 signed baseballs. The total value of the stolen property was about $120,000. Months later, D.D. went to the APD and identified some of the stolen property. G. Home of N.S. and Son—February 6, 2016 (Count 3)
In the late afternoon, N.S. and his son left their upscale Yorba Linda home to see a movie. When they returned home a couple hours later, N.S. noticed the garage door opener did not work because it was unplugged from the ceiling outlet. The side garage door had been kicked in. N.S. saw the front door was open and there was a laptop computer on the floor inside the door. He went outside and called the police. After the police arrived, N.S. went inside and saw his house had been ransacked. Missing items from the master bedroom closet included his deceased wife's jewelry and designer handbags. A pillowcase was missing from the master bedroom. The approximate value of the stolen property was $4,000 to $5,000. Months later, N.S. went to the APD and identified his wife's pearl necklace. H. Home of L.E. and R.E.—March 4, 2016 (Count 12)
L.E. and her husband were on vacation. While they were away, their son went to their upscale Yorba Linda home and saw the front door was open. He went inside, saw open drawers, and called the police. The side garage door had been pried open. Missing items from the master bedroom suite included diamond and gold jewelry, costume jewelry, $30,000 in cash, autographed sports memorabilia, and a pillowcase. The approximate value of the stolen property was $60,000. The following month, L.E. and her husband went to the APD and identified numerous pieces of jewelry, a couple pieces of sports memorabilia, and the missing pillowcase. I. Home of C.P. and C.P.—March 11, 2016 (Count 2)
When C.P. and her husband returned to their upscale Yorba Linda home from dinner, the garage door would not open because it had been unplugged from the ceiling outlet. When C.P.'s husband went inside, he noticed two of his guitars stacked neatly near the front door. When he went upstairs, their bedroom had been ransacked. Missing items included C.P.'s fine jewelry, including a ring worth $1,500 to $1,800 and a bracelet worth about $3,000. The approximate value of the stolen property taken was $5,000. A pillowcase was missing from the master bedroom. The following month, C.P. went to the APD and identified about 30 pieces of jewelry. J. Home of M.M. and C.M.—April 3, 2016 (Count 5)
One evening, M.M. and his wife were asleep in their upscale Yorba Linda home one when he heard a scratching noise and got out of bed. When he got to the door, he saw someone trying to pry the guest bedroom door open with a bar. M.M. startled the person, who fled. M.M.'s neighbor had security cameras that captured a large white sport utility vehicle (SUV) pull onto M.M.'s driveway and a person get out of and back into the SUV. The cameras captured the license plate, which led the police to a Hertz rental facility, where a 2016 GMC Yukon XLT had the same license plate. K. The Police Tracked the Stolen Property to McClanahan
Following the D.D. burglary, Detective James Rodriguez began trying to locate the stolen sports memorabilia. When one of the missing cards was listed for sale on eBay, Rodriguez identified M.Mc. as the seller and executed a search warrant for his home in March 2016. M.Mc. was cooperative, showed the officers the merchandise, and explained he had purchased it from McClanahan. M.Mc. provided the following details of the transaction with McClanahan: McClanahan contacted M.Mc. in response to his posting on Craigslist; M.Mc. paid McClanahan $6,000 for the property via PayPal; on January 22, 2016, McClanahan arrived at the designated meeting place in a Buick sport utility vehicle with the property; and McClanahan claimed to have obtained the property from a storage auction in Yuba City. Based on this information, Rodriguez located McClanahan.
In April 2016, Rodriguez and officers executed a search warrant at McClanahan's home and arrested him. In his garage, they located jewelry, sports memorabilia, and coins. They also found two pillowcases filled with expensive jewelry, costume jewelry, silver, and a painting like D.D.'s. In his backyard, they found a safe that D.D. later identified as his. McClanahan authorized the officers to search his two storage units. After McClanahan consented to the search, Rodriguez asked him questions, but McClanahan stated he did not want to talk to Rodriguez.
McClanahan rented over 30 vehicles from Hertz between October 2014 and March 2016. McClanahan rented the SUV that parked at M.M.'s residence (count 5). He was also in possession of a rental sport utility vehicle during the time of the burglaries of D.D. (count 1) and S.L. (count 11). He rented a vehicle within one week of the burglaries of T.F. and R.F. (count 13), I.M. (count 10), and J.R. (count 9), but there was no evidence when he returned those vehicles. He also rented vehicles from between two weeks to six weeks before the burglaries of K.L. and C.L. (count 6-car), N.S. (count 3-sport utility vehicle), L.E. and R.E. (count 12-sport utility vehicle), and C.P. and C.P. (count 2-sport utility vehicle), but there was no evidence when he returned any of these vehicles.
All the property seized from McClanahan was presented to victims at the APD. There were additional burglaries in Anaheim after McClanahan's arrest.
During a discussion towards the end of the prosecutor's case-in-chief, the trial court asked whether McClanahan intended to file a section 1118.1 motion. After defense counsel said she was, the court told the prosecutor to be prepared to provide evidence connecting McClanahan to each of the counts. The prosecutor again inquired about the admissibility of evidence pursuant to Evidence Code section 1101, subdivision (b). The court asked for his theory of admissibility, and the prosecutor responded common plan or scheme and absence of mistake or accident. The court told the prosecutor to provide it with case authority and declared a recess.
After the prosecution's case-in-chief, the trial court addressed McClanahan's section 1118.1 motion. The prosecutor asserted the primary issue was the perpetrator's identity and the possession of recently stolen property plus the common plan or scheme evidence established proof beyond a reasonable doubt. Defense counsel argued there was no evidence of a common plan or scheme because there were not sufficient similarities between counts 1, 5, and 6 and counts 2, 3, 9, 10, 11, 12, and 13.
The trial court denied McClanahan's section 1118.1 motion, explaining there were sufficient similarities to demonstrate a common plan or scheme. The court stated, "I do not feel from the totality of the circumstances that they're going to say just because he committed one, he's good for the other one." Defense counsel added the evidence was unduly prejudicial. The court replied, "And I respect you but I've already ruled, and so that's where we are."
The following week, the trial court and counsel discussed the jury instructions. As to CALCRIM No. 375, defense counsel was concerned the jury would use the evidence "for identity purposes." The court stated, "I think your point is well taken because it's not distinct[,]" but the cases allow it. The court explained the common plan or scheme evidence gets the prosecution past CALCRIM No. 376. The court added it would not instruct the jury on identity and the jury had to figure it out. Defense counsel requested the court include language the jury could not use the evidence for identity purposes. The court declined, stating it would be confusing. Defense counsel objected to instructing the jury with the modified CALCRIM No. 375. II. Defense's Evidence
McClanahan testified he worked at a group home for emotionally disturbed boys and built furniture until 2012. In 2012, he rescued his developmentally disabled brother from a mobile home fire but his mother died in the fire. After that he was unable to work. To "keep [his] mind going," he started studying coins. He soon realized he had to get a job because he was married and had three children, and he bought storage units and estates at auctions and sold the merchandise at flea markets, swap meets, and on Craigslist. After buying a storage unit, he had 24 hours to remove the property, and he would do so by renting large vehicles and moving the property to a unit in his own name. He also rented vehicles because his family's car was unreliable and to take long trips.
McClanahan admitted participating in the K.L. and C.L. burglary with an unidentified person (friend) and leaving a ski mask behind. McClanahan stated he was going to wait in the car but the noise of the break-in made him nervous and he had to use the bathroom, so he went inside. McClanahan used the bathroom, went through the drawers in the master bedroom, and found a safe. His friend, who was a large man, helped him move the safe. He purchased D.D.'s "sports stuff" from his friend who delivered it in his friend's girlfriend's "Chrysler 200." Additionally, he obtained D.D.'s safe from his friend, and he helped him break into the safe. He lied to M.Mc. about where he got the property before selling it to him. He said his friend gave him the remainder of the stolen property the police seized at his house. He obtained all the property from his friend except the coins. When questioned concerning some of the coins I.M. and T.F. identified as stolen, McClanahan explained he purchased the coins from coin shops, probably either in Whittier or Yuba City, and they were common coins without any identifying marks other than dates.
McClanahan admitted knowing his friend was a residential burglar and knowing much of the property was stolen. He did not want to reveal his friend's name because he feared for his family's safety. McClanahan admitted he rented the SUV that was outside M.M.'s home, but he claimed to have loaned it to his friend. McClanahan disputed he was in possession of a rental car during the time of each of the burglaries. He said, "there were a few dates or at least one that [he] had no rental." III. Closing Argument, Instructions, Verdicts & Sentencing
Before closing argument, the prosecution informed the trial court they had reached a plea agreement—McClanahan would plead guilty to three first degree burglaries in exchange for six years in prison and provide information on his accomplice. The court declined to accept the plea agreement (§ 1192.7). After closing argument, the trial court instructed the jury on the applicable law, including but not limited to CALCRIM Nos. 220, 375, 376, 3220, and 3515.
The jury convicted McClanahan of counts 1, 2, 3, 5, 6, 10, 11, 12, and 13, and found true all the allegations. The jury hung on count 9. After the trial court dismissed count 9, it sentenced him to 16 years in prison as follows: count 1—four years plus a consecutive two-year term for the section 12022.6, subdivision (a)(2), enhancement; counts 2 and 3—16 months each; count 5—eight months; and counts 6, 10, 11, 12, and 13—16 months each.
I. CALCRIM No. 375
McClanahan argues the trial court erred by instructing the jury with CALCRIM No. 375 for the following reasons: the court erred when it instructed the jury on common plan or scheme when it should have instructed the jury on identity; there were insufficient similarities of a common plan or scheme to prove identity; and there was a reasonable probability of a better result had the court not instructed the jury with CALCRIM No. 375. We agree the court erred by instructing the jury with CALCRIM No. 375 because there were insufficient similarities between counts 1, 5, and 6, and counts 2, 3, 10, 11, 12, and 13 to establish a common plan or scheme and the error prejudiced McClanahan. A. Law
Evidence of uncharged acts is generally inadmissible to prove criminal disposition. (Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) However, Evidence Code section 1101, subdivision (b), allows the trial court to admit "evidence that a person committed a crime . . . or other act when relevant to prove some fact (such as . . . intent, . . . plan, . . . identity . . .) other than his or her disposition to commit such an act." Although other acts evidence might be relevant to prove a material fact other than a defendant's criminal disposition, this evidence is subject to exclusion pursuant to Evidence Code section 352. (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) We review a trial court's evidentiary rulings for an abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 108.) The California Supreme Court has held that pursuant to Evidence Code section 1101, subdivision (b), the jury can consider evidence relevant to one of the charged counts as it considered the other charged count. (People v. Villatoro (2012) 54 Cal.4th 1152, 1166 (Villatoro).)
The least degree of similarity is required to prove intent, a greater degree to prove the existence of a common plan or scheme, and the greatest degree to prove identity. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.) "Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, '[i]n proving design, the act is still undetermined . . . .' [Citation.]" (Id. at p. 394, fn. 2.)
"[I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.'" (Ewoldt, supra, 7 Cal.4th at p. 402.) "To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. . . . Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]" (Id. at p. 403.)
Here, the trial court instructed the jury with CALCRIM No. 375 as follows: "The People presented evidence of offenses that were charged in this case in [c]ounts 1, 5, and 6. [¶] You may consider this evidence only if the People have proved by a proof beyond a reasonable doubt that these offenses were committed. [¶] If you decide that the defendant committed the offenses charged in [c]ounts 1, 5, and 6, you may, but are not required to, consider that evidence for the limited purpose of deciding whether: [¶] The defendant had a plan or scheme to commit the all [sic] of the offenses alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the offenses in [c]ounts 1, 5, and 6 and those in [c]ounts 2, 3, 9, 10, 11, 12, and 13. [¶] Do not consider this evidence for any other purpose except for the limited purpose . . . the defendant had a common plan and scheme to commit the offenses charged in [c]ounts 2, 3, 9, 10, 11, 12, and 13. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the offenses alleged in [c]ounts 1, 5, and 6, that conclusion is only one factor to consider with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of all the charged counts. The People must still prove every charge beyond a reasonable doubt." B. Similarities
Here, there was not a concurrence of common features between counts 1, 5, and 6, and counts 2, 3, 10, 11, 12, and 13 to establish a common plan or scheme. The Attorney General (AG) asserts there were numerous similarities between the burglaries, including they were during roughly the same time frame, were in the same geographic area, involved upscale homes, and targeted the master bedroom. It is true the burglar(s) targeted master bedrooms of upscale homes in Yorba Linda, Anaheim Hills, and Anaheim over the course of about 14 months. But those facts alone do not establish common features sufficient to tend to prove McClanahan committed all the burglaries pursuant to a plan. Burglars generally target homes in affluent areas because those homeowners typically possess more valuable items and many of those items are typically stored in bedrooms. These were "necessary concomitants" of the crime of burglary. (People v. Alvarez (1975) 44 Cal.App.3d 375, 386.)
The AG contends McClanahan admitted that on the dates of most of the burglaries, he had coincidentally rented a large, new, sport utility vehicle. The evidence is less compelling. It is true the evidence demonstrated McClanahan was in possession of a rental sport utility vehicle during counts 5, 1, and 11. The evidence also demonstrated he rented vehicles days and weeks before the other six burglaries but there was no evidence establishing when he returned those vehicles. Without evidence McClanahan possessed rental vehicles during all the burglaries we cannot conclude this fact demonstrated sufficient similarities.
The AG highlights what he thinks are similarities in access, tools, and stolen goods establishing a common plan or scheme. As to access, the AG states the following: the N.S. (count 3) and C.P. (count 2) burglaries involved unplugged garage door openers similar to the power that was turned off in the K.L. and C.L. burglary (count 6) and the garage door opener light that was off in the D.D. burglary (count 1); the L.E. burglary (count 12) involved prying open a door on the side of the garage like in the K.L. and C.L. burglary (count 6); and the I.M. burglary (count 10) involved a shattered French door like the K.L. and C.L. burglary (count 6). These facts do not show a common plan or scheme among all the burglaries but instead a series of spontaneous acts to access the homes. And the record reference the AG provides to establish the K.L. and C.L. burglary (count 6) involved a shattered French door actually concerned the T.F. and R.F. burglary (count 13), an offense the prosecution sought to prove with the charged crimes evidence. The K.L. and C.L. burglary (count 6) did not involve a shattered French door.
With respect to tools, the AG states the N.S. (count 3) and C.P. (count 2) burglaries involved the use of pillowcases from the master bedroom to carry loot like the K.L. and C.L. burglary (count 6) and the D.D. burglary (count 1). Again, this was not a concurrence of common features among all the burglaries to demonstrate they were sufficiently similar. That the burglar(s) grabbed pillowcases during four of the nine burglaries does not indicate the existence of a common plan or scheme but rather a series of similar spontaneous acts.
As to stolen goods, the AG states the T.F. burglary (count 13) involved the theft of a safe from the master bedroom like both the K.L. and C.L. (count 6) and D.D. (count 1) burglaries. Evidence the burglar(s) stole safes from three of the nine homes does not establish a common plan or scheme. Again, it demonstrates the burglar(s) spontaneously stole the valuables that happened to be in three of the homes.
The lack of similarity between the nine offenses is highlighted by the fact that none of the circumstances the AG details are common to all nine charges. The purpose of this evidence is to identify the defendant as the perpetrator of the charged crime based on a "peculiar behavior pattern" or "characteristic method or plan." (1 Witkin, Cal. Evidence (2019 supp.) Circumstantial Evidence, § 94, p. 487.) Isolated similar spontaneous acts between some of the counts is not a characteristic plan.
The AG does not site to any similarity in access, tools, or stolen goods between count 11 and counts 1, 5, and 6. Once the jury concludes the circumstances of counts 2, 3, and 13 were sufficiently similar to counts 1 and 6, could the jury rely on those similarities to convict McClanahan of count 11? The dissimilarities between counts 1, 5, and 6, and counts 2, 3, 10, 11, 12, and 13 are equal to if not greater than the similarities. (People v. Rivera (1985) 41 Cal.3d 388, 393, disapproved on other grounds in People v. Lessie (2010) 47 Cal.4th 1152, 1168, fn. 10.)
McClanahan asserts the trial court did not conduct an Evidence Code section 352 weighing. Without deciding, we note the California Supreme Court has stated that on review courts will infer an implicit weighing well short of an express statement. (Villatoro, supra, 54 Cal.4th at p. 1168.) The court stated it did not think the jury would convict McClanahan of any of the six counts based on counts 1, 5, or 6. Essentially, the court concluded the jury would not prejudge McClanahan based on extraneous factors. Although the court's comments establish it engaged in and Evidence Code section 352 weighing, we disagree with its conclusion.
"'Evidence is prejudicial within the meaning of Evidence Code section 352 if it "'uniquely tends to evoke an emotional bias against a party as an individual'" [citation] or if it would cause the jury to "'"prejudg[e]" a person or cause on the basis of extraneous factors'" [citation].' [Citation.]" (People v. Foster (2010) 50 Cal.4th 1301, 1331.) Here, as we explain above, there was not a concurrence of common features between counts 1, 5, and 6, and counts 2, 3, 10, 11, 12, and 13 to establish a common plan or scheme, and thus, evidence of those three counts had little if any probative value to the other six counts. The instruction allowed the jury to improperly use evidence of counts 1, 5, and 6 to conclude McClanahan must have committed the burglaries in counts 2, 3, 10, 11, 12, and 13. Evidence McClanahan's DNA evidence was found at K.L. and C.L.'s home (count 6), McClanahan possessed D.D.'s safe (count 1), and McClanahan rented the SUV spotted at M.M. and C.M.'s home (count 5) would uniquely tend to evoke an emotional bias against McClanahan. Thus, the trial court erred by instructing the jury with CALCRIM No. 375. C. Prejudice
We review the trial court's giving of an erroneous instruction pursuant to People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Prieto (2003) 30 Cal.4th 226, 249.) Under the Watson test, we may reverse the judgment if it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (Ibid.)
Here, there was a reasonable probability McClanahan would have received a more favorable result had the trial court not instructed the jury with CALCRIM No. 375. Contrary to the AG's claim, the evidence of McClanahan's guilt on these counts was not compelling. Without the common plan or scheme evidence, the evidence supporting counts 2, 3, 10, 11, 12, and 13 consisted of possession of stolen property, some of it recent and some of it not, and as we explain below, slight corroborating evidence as to four of the six counts.
CALCRIM No. 376 informed the jury possession of recently stolen property was not sufficient by itself to convict McClanahan of those counts. That instruction also informed the jury that if the supporting evidence proved his guilt, it could convict him of all the charged burglary offenses. During closing argument, the prosecutor repeatedly referenced the common plan or scheme evidence as supporting evidence proving guilt. CALCRIM No. 375 permitted jurors to find any similarity between a burglary in one of the proved counts (counts 1, 5, and 6) and a burglary from which McClanahan possessed recently stolen property. Once jurors found a similarity as to any particular count, CALCRIM No. 375 allowed the jury to find McClanahan guilty of burglary in that count. As we explain above, there was not a concurrence of common features between counts 1, 5, and 6, and counts 2, 3, 10, 11, 12, and 13 to establish a common plan or scheme. Because of the lack of similarities, it is reasonably probable the jury considered counts 1, 5, and 6 as propensity evidence and convicted McClanahan of counts 2, 3, 10, 11, 12, and 13 based on that evidence.
The AG argues CALCRIM No. 375 prohibited the jury from convicting McClanahan of counts 2, 3, 10, 11, 12, and 13 based on counts 1, 5, and 6 alone. But CALCRIM No. 376 instructed the jury it could consider evidence of recently stolen property and common plan or scheme and convict based on the synergistic effect of that evidence. In other words, the jury had before it evidence that by itself was legally insufficient (recently stolen property) and evidence that should not have been before it (common plan or scheme) to decide whether McClanahan was guilty of counts 2, 3, 10, 11, 12, and 13.
The AG also argues the fact the jury hung on count 9 demonstrates the common plan or scheme evidence was not prejudicial. Not so. During her testimony, O.R. could not confirm whether the coins she identified at the APD were hers. Thus, the evidence supporting the conclusion McClanahan possessed O.R.'s recently stolen property was insufficient. Finally, as we explain below, McClanahan's explanation for how he acquired the property was not implausible. Thus, it was reasonably probable that had the trial court not instructed the jury with CALCRIM No. 375, McClanahan would have obtained a better result. II. Sufficiency of the Evidence—Counts 2, 3, 10, 11, 12, and 13
McClanahan admits there was sufficient evidence supporting his convictions for counts 1, 5, and 6, but he disputes there was sufficient evidence supporting the remaining six residential burglary convictions. We disagree as to four of the counts and agree as to two of the counts.
"In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Our review is the same in a prosecution primarily resting upon circumstantial evidence. [Citations.] We do not redetermine the weight of the evidence or the credibility of witnesses. [Citations.] We must accept logical inferences that the jury might have drawn from the evidence although we would have concluded otherwise. [Citations.] 'If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.' [Citation.]" (People v. Vasquez (2015) 239 Cal.App.4th 1512, 1516-1517, italics added.)
A person who enters a house, room, or apartment with the intent to commit larceny or any felony is guilty of burglary. (§ 459.) The burglary of an inhabited dwelling is first degree burglary. (§ 460, subd. (a).)
"[P]ossession of recently stolen property by itself is not sufficient to support a finding of guilt of any offense—including theft-related offenses—and, accordingly, there must be other corroborating evidence of the defendant's guilt. [Citation.]" (People v. Moore (2011) 51 Cal.4th 1104, 1130-1131, first italics added.) But "[w]hen . . . a defendant is found in possession of property stolen in a burglary shortly after the burglary occurred, the corroborating evidence of the defendant's acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary convictions. [Citations.]" (People v. Mendoza (2000) 24 Cal.4th 130, 176, italics added, superseded by statute on other grounds as stated in People v. Brooks (2017) 3 Cal.5th 1, 63, fn. 8.) As corroborating evidence, the trier of fact may consider the time, place, and manner of the defendant's possession of stolen property, the defendant's conduct, and any other evidence that tends to connect the defendant with the crime. (People v. Parson (2008) 44 Cal.4th 332, 355.) In accordance with this rule, the trial court instructed the jury pursuant to CALCRIM Nos. 375 and 376, both of which we discuss herein.
When officers arrested McClanahan he possessed C.P.'s (count 2), N.S.'s (count 3), I.M.'s (count 10), S.L.'s (count 11), L.E.'s and R.E.'s (count 12), and R.F.'s and T.F.'s (count 13) property. This evidence alone was insufficient to sustain his convictions for residential burglary without corroborating evidence.
The AG claims there was corroborating evidence, which consisted of "numerous similarities" establishing McClanahan participated in all of the residential burglaries as part of a common plan or scheme and his implausible explanation for how he acquired the property. As we explain above, there was not a concurrence of common features between counts 1, 5, and 6 and counts 2, 3, 10, 11, 12 and 13 to demonstrate a common plan or scheme. But there was other evidence corroborating McClanahan's acts as to those counts where he possessed property "shortly after the burglary occurred." Before we discuss the corroborating evidence, we must address whether the property was recently stolen. A. Recently Stolen
The parties cite to People v. Anderson (1989) 210 Cal.App.3d 414 (Anderson), for guidance on whether property was recently stolen. Anderson concerned a prosecution for receiving stolen property, and whether the trial court erred by instructing the jury with CALCRIM No. 376's predecessor, CALJIC No. 2.15 because the property was not recently stolen. For guidance the Anderson court looked to People v. Lopez (1954) 126 Cal.App.2d 274, 278 (Lopez).
Lopez concerned inter alia a prosecution for receiving stolen property, but CALJIC No. 2.15 was not at issue because it was a bench trial. The Lopez court stated "the rule that possession of stolen property, accompanied by no explanation, or an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen." (Lopez, supra, 126 Cal.App.2d at p. 278.) The court acknowledged "The rule is generally applied where the accused is found in possession of the articles soon after they were stolen. [Citations.]" (Ibid., italics added.) The court explained the inference of defendant's guilty knowledge was weakened by the passage of nine months between the time the property was stolen and the time it was found in defendant's possession. (Ibid.) The Lopez court concluded there was sufficient corroborating evidence, defendant's conflicting statements and others' testimony, to support the inference, "regardless of the time when [defendant] received the" property. (Ibid.)
After discussing Lopez, the Anderson court stated the following: "We believe that, like other factual determinations, it is for the jury to conclude what time period qualifies as 'recent.' We are unwilling, as apparently other courts have also been, to attempt demarcation of any bright line between 'recent' and 'stale' time periods. Under the circumstances of this case, 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." (Anderson, supra, 210 Cal.App.3d at p. 422.)
We note both Anderson and Lopez addressed temporal proximity in addressing the knowledge element of receiving stolen property, while here we are concerned with the sufficiency of the evidence for burglary. But like the Anderson court, we conclude it was reasonable for the jury to have determined that possession within about three months (count 11) and about three weeks (count 2) of the theft could lead to an inference of knowledge of the stolen nature of the property. This inference would also be proper as to count 12 (about one month) and count 3 (about two months).
However, while we too are reluctant to demarcate any bright line between "recent" and "stale" time periods, there must be an upper limit to what a jury reasonably may characterize as "recent." As the Lopez court acknowledged, the stolen property "could have passed through several hands after the thief had disposed of it." (Lopez, supra, 126 Cal.App.2d at p. 278.) And the passage of time weakens the inference of defendant's guilty knowledge. (Anderson, supra, 210 Cal.App.3d at p. 421.) But here, the Attorney General relies on CALCRIM No. 376 not to establish McClanahan knew the property was stolen, but to demonstrate he committed burglaries that occurred months earlier. While we agree the inference is permissible on four of the counts, we conclude possession of stolen property within about seven months (count 10) and about 14 months (count 13) of the theft cannot alone support an inference McClanahan committed the burglaries. Simply stated, seven months and 14 months cannot be considered "soon after." Thus, the inference properly applied to the property in counts 2, 12, 3, and 11, but not counts 10 and 13. B. Corroborating Evidence
As we explain above, when a defendant possesses recently stolen property, a jury may infer he is the person who stole the property when there is slight corroborating evidence that links the defendant to the theft. That minimal standard was met on the evidence presented.
First, McClanahan provided an implausible explanation for how he acquired the property. People v. McFarland (1962) 58 Cal.2d 748 (McFarland), and People v. Citrino (1956) 46 Cal.2d 284 (Citrino), are instructive.
In McFarland, supra, 58 Cal.2d at pages 752-753 and 758, as relevant here, a jury convicted defendant of four counts of burglary after he was found in possession of recently stolen property. When police questioned defendant, he refused to answer some questions, gave vague responses to other questions, provided potentially incriminating statements, and remained silent at times. (Id. at pp. 753, 758.) At trial, defendant did not testify. (Id. at p. 754.) The McFarland court affirmed because the property was recently stolen—a few days to less than two months—reasoning that because the property was recently stolen, defendant could reasonably be expected to know how he acquired the property. (Id. at p. 758.) The court explained, "Yet, when questioned by the police, he either attempted explanations which the jury was entitled to reject as false in view of their vagueness and lack of important details, made statements which could be found to constitute admissions, or remained silent under circumstances of the type which could be found to permit use of his silence as reflecting consciousness of guilt." (Ibid.)
In Citrino, supra, 46 Cal.2d at page 286, the jury convicted defendant of two counts of burglary after he was found in possession of recently stolen property. A few days later, defendant sold some of the property to a man who required a bill of sale, which defendant signed as "Anthony Cotelli." (Id. at p. 287.) When an officer arrested defendant, he refused to answer whether he sold property under the alias Cotelli. (Ibid.) At trial, defendant testified a person named Gino Cotelli gave him the property but he did not know where Cotelli was. (Ibid.) The Citrino court affirmed, opining, "[I]n view of defendant's own use of that name and the fact that he did not know where Cotelli was at the time of the trial, the jury could reasonably conclude that Cotelli and his gift were both fictitious." (Id. at p. 289.)
Here, like in McFarland and Citrino, McClanahan provided an implausible explanation for how he acquired the property and he refused to disclose the identity of his friend who purportedly committed the burglaries. McClanahan's account of how he obtained the property was so lacking in plausible details that it indicated he fabricated a story to explain the evidence against him. Unlike M.Mc., who immediately explained how he came to procure stolen property and provided corroboration for his account, McClanahan blamed his unidentified friend. McClanahan gave no details about him, no corroboration for his story, and no specifics about why he was concerned about his family's safety if he revealed his friend's identity. The jury was entitled to reject his account as false in view of his vagueness and lack of important details.
Additionally, McClanahan testified he obtained all the property from his friend, but when questioned concerning some of the coins the victims identified as stolen, McClanahan explained he purchased the coins probably from one of his two primary coin shops. The jury was entitled to reject this account as false in view of the fact it was unbelievable. While he obtained all of the stolen property from his friend (except the coins), he lawfully purchased I.M.'s and T.F.'s coins from coin shops outside of Orange County, one of which was in Northern California. This explanation was implausible.
Second, McClanahan admitted that on the dates of most of the burglaries, he was in possession of a rental vehicle, some of which were sport utility vehicles. With respect to count 5, McClanahan rented the SUV that was detected during the attempted burglary of M.M.'s home. There was evidence McClanahan rented a sport utility vehicle one day before the burglary of S.L. (count 11), two weeks before the burglary of N.S. (count 3), six weeks before the burglary of L.E. and R.E. (count 12), and seven weeks before the burglary of C.P. (count 2). Although there was no evidence when he returned many of the vehicles, the evidence demonstrated he rented vehicles for long periods of time (a sport utility vehicle for three weeks), and the corroborating evidence need only be slight.
Third, McClanahan admitted he participated in the burglary of K.L. and C.L. (count 6), during which a pillowcase was stolen. A pillowcase was missing from the home of N.S. (count 3), L.E. and R.E. (count 12), and C.P. (count 2). When officers searched McClanahan's home, they found two pillowcases filled with stolen jewelry and other property. The jury could rely on this evidence to conclude McClanahan's modus operandi was to rent vehicles, often sport utility vehicles, before burglarizing a home and to use a pillowcase from the home to carry the stolen property. This evidence, in addition to McClanahan's implausible explanation for how he obtained the property, provided slight corroborating evidence tending to prove his guilt on counts 2, 12, 3, and 11. Thus, McClanahan may be retried on counts 2, 12, 3, and 11.
However, McClanahan may not be retried on counts 10 and 13 because that property was not recently stolen and those counts were not supported by sufficient evidence. The AG contends the offense of burglary does not require the property be recently stolen. (§ 459.) But if we do not consider evidence of the stolen property or evidence of common plan and scheme, what evidence is there to support his convictions on these two counts? We decline the AG's invitation to conclude his implausible explanation and the fact he rented vehicles days before the commission of counts 10 (sport utility vehicle) and 13 (car) were sufficient to support these convictions. III. CALCRIM No. 376—Possession of Recently Stolen Property as Evidence of a Crime
McClanahan contends the trial court erred by instructing the jury with a modified version of CALCRIM No. 376 and we must reverse his convictions on counts 1, 3, 10, 11, 12, and 13. He asserts the jury could have convicted him of all of those older crimes after finding he committed only one of the more recent crimes, such as count 2. With respect to counts 10 and 13, we conclude the court erred by instructing the jury with CALCRIM No. 376 because the property was not recently stolen. As to counts 1, 3, 11, and 12, we conclude there was no error.
CALCRIM No. 376 provided 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 all any [sic] charged offense of burglary. [¶] 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 any charged offense 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." (Italics added.) The trial court stated "all any" when instructing the jury. A. Counts 10 and 13
"'"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.]'" (People v. Breverman (1998) 19 Cal.4th 142, 154.)
The California Supreme Court has specifically stated that "when 'an instruction simply informs the jury that a fact or cluster of facts is not, without more, substantial evidence of guilt under the ordinary legal rules set forth elsewhere in the instructions,' there is no 'duty on trial courts to provide such an instruction sua sponte.' [Citation.] Thus, instructions as to . . . possession of recently stolen property, . . . 'while helpful in various circumstances, are not vital to the jury's ability to analyze the evidence and therefore are not instructions that must be given to the jury even in the absence of a request.' [Citations.]" (People v. Rangel (2016) 62 Cal.4th 1192, 1223-1224.) However, "[e]ven if the court has no sua sponte duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly." (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)
Here, as discussed above, property stolen about seven months (count 10) and about 14 months (count 13) before it was recovered from McClanahan does not support giving CALCRIM No. 376 in a burglary prosecution. Possession of this property could not lead to an inference McClanahan committed the burglaries charged in counts 10 and 13. Accordingly, the court erred by instructing the jury with CALCRIM No. 376 as to counts 10 and 13. B. Counts 1, 3, 11, and 12
"'It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions.' [Citation.] '"A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]" [Citation.] "'[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'"' [Citation.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.)
McClanahan argues that once the jury convicted him of count 2, a burglary which occurred about three weeks before he was arrested and was recent, the jury could convict him of the other older offenses, including counts 1, 3, 11, and 12, that he claims were not recent. After arguing McClanahan invited the error and forfeited appellate review of the claim, the AG concedes, "The 'all any' portion of the instruction is an obvious clerical error[.]" The AG continues the clerical error was "clarified by the context." Although there was an obvious clerical error the trial court orally delivered to the jury, based on the entire charge we conclude there was no error.
The final sentence of CALCRIM No. 376 instructed the jury it could not convict him of any count unless it was convinced beyond a reasonable doubt of each element of that offense. The trial court repeated the prosecution's burden in other instructions (CALCRIM Nos. 220, 375). Additionally, the trial court instructed the jury with CALCRIM No. 3515, which stated the following: "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one." Finally, counts 1 (about two and one-half months), 3 (about two months), 11 (about three months), and 12 (about one month) were recently stolen. (Anderson, supra, 210 Cal.App.3d at p. 422 [four and one-half months recent].) The trial court did not err in instructing the jury with CALCRIM No. 376. IV. CALCRIM No. 3220—Amount of Loss
McClanahan asserts the trial court erred by modifying CALCRIM No. 3220 to omit the requirement of a common plan or scheme or plan to aggregate the losses. We conclude the jury's true finding on the enhancement must be reversed but for a different reason.
At the time of trial, former section 12022.6, subdivision (a)(2), required the trial court to impose an additional and consecutive sentence enhancement of two years for a loss greater than $200,000. (Repealed by Stats. 2010, ch. 711, § 5.) Section 12022.6, subdivision (b), provided in relevant part, "the additional terms provided in this section may be imposed if the aggregate losses to the victims from all felonies exceed the amounts specified in this section and arise from a common scheme or plan." The trial court instructed the jury with CALCRIM No. 3220, "Amount of Loss," but did not instruct on the common plan or scheme requirement after a jury question and discussion with counsel.
We have reversed McClanahan's convictions on counts 2, 3, 10, 11, 12 and 13. Thus, McClanahan stands convicted of counts 1, 5, and 6. As to count 1, D.D. testified his total losses were about $120,000. There were no losses associated with count 5 because M.M. scared away the perpetrator before he could steal anything. With respect to count 6, C.L. and K.L. estimated their losses to be about $20,000. The total approximate losses of $140,000 do not satisfy the $200,000 threshold. Thus, we reverse the section 12022.6, subdivision (a)(2), enhancement as to counts 1, 5, and 6.
We reverse McClanahan's convictions on counts 2, 3, 10, 11, 12, and 13. We affirm his convictions on counts 1, 5, and 6, but we reverse the section 12022.6, subdivision (a)(2), enhancement as to each of those counts. McClanahan may be retried on counts 2, 3, 11, and 12, but he may not be retried on counts 10 and 13. The matter is remanded to the trial court.
O'LEARY, P. J. WE CONCUR: MOORE, J. ARONSON, J.