P. v. Evans

Filed 3/19/07 P. v. Evans CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Travis Evans urges us to reverse his robbery conviction because the trial court instructed the jury in the language of CALCRIM No. 376 that only slight corroboration is necessary when the accused is found in possession of recently stolen property. The instruction, in defendants view, violates California case law, reduces the prosecutions burden of proof, and is tantamount to a directed verdict. We disagree and affirm the judgment.

FACTS

The victim testified that while she was pumping gas at about 8:40 p.m. on September 13, 2005, a Black male slugged her in the eye, grabbed her purse from her shoulder, and rode off on a bicycle. Her purse contained a cell phone, keys, credit cards, and approximately $200 in cash. She picked the wrong suspect in a photographic lineup.

The gas station cashier got a good look at the robbers face and positively identified defendant in a photographic lineup and at trial.

Raianna Marie Singh testified under a grant of use immunity. Defendant was a friend of her roommate. On September 13, defendant came into her apartment with the bicycle she kept in the pantry, took $20 from a large purse-like bag, and then threw the purse to her roommate. Singhs roommate found credit cards, a cell phone, and a wallet in the purse. They took over $100 in cash and used the credit cards to buy groceries. Defendant told them he had snatched the purse from a woman at Target and got away on his bike.

DISCUSSION

Defendant contends that a jury instruction, such as CALCRIM No. 376, that allows a jury to infer a defendant committed a robbery if it finds he was in possession of recently stolen property as long as there is slight supporting evidence should not be given in a case, such as this, where the evidence was weak that he was in possession of recently stolen property and there was little supporting evidence to support an inference of guilt. Despite his failure to object to the instruction at trial, he asserts CALCRIM No. 376 impermissibly diluted the prosecutors burden of proof, effectively directed a verdict in the prosecutors favor, and denied him due process of law. These same objections have been soundly rejected in other cases.

The court instructed the jury in the language of CALCRIM No. 376 that: [I]f 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 robbery 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 robbery. [] 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 robbery. [] 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.^[1]

Because the instruction creates a permissible inference, it does not remove from the jury its prerogative of determining the applicability of the instruction (People v. Anderson (1989) 210 Cal.App.3d 414, 422) and in no way shifts the burden of proof or destroys the presumption of innocence; the prosecution must still satisfy the jury of a defendants guilt beyond a reasonable doubt (People v. McFarland (1962) 58 Cal.2d 748, 756). Nor does the instruction direct a verdict in the prosecutors favor, create an improper presumption of robbery, or in effect tell the jury that possession alone is sufficient to warrant a conviction for robbery. (People v. Holt (1997) 15 Cal.4th 619, 677 (Holt); People v. Johnson (1993) 6 Cal.4th 1, 37 (Johnson).) Rather, the ultimate question whether defendant committed a robbery was left to the jury through the instructions defining the elements of robbery and the entire charge to the jury, including the prosecutions burden of proof beyond a reasonable doubt. (Holt, supra, 15 Cal.4th at p. 677; Johnson, supra, 6 Cal.4th at p. 37.)

A defendant also accused of robbery challenged the earlier iteration of CALCRIM No. 376 in People v. Gamble (1994) 22 Cal.App.4th 446 (Gamble). The Court of Appeal rebuffed the defendants claims. It is settled that when a person is shown to be in possession of recently stolen property slight corroborative evidence of other inculpatory circumstances which tend to show guilt supports the conviction of robbery. [Citation.] (Id. at p. 453.) Moreover, it is not just the inference as to defendants knowledge that the property was stolen that may be drawn, but in the context of theft crimes other than receiving stolen property, CALJIC No. 2.15 by its very language permits the jury in a proper case to infer the identity of defendant as the one who committed the crime. (Gamble, at p. 453.)

But defendant insists that these cases have been misconstrued and misapplied. He complains that the evidence he was in possession of recently stolen property was weak because Raianna alone testified he brought in the bag of stolen property, and since she had been granted immunity by the prosecution, her credibility was tarnished. Nor, in defendants view, was there sufficient evidence to corroborate her testimony. He argues that the gas station attendants eyewitness identification at trial was weakened by his tentative identification of another suspect at one of two photographic lineups. Thus, he concludes, the instruction directed the jury to combine two pieces of potentially unreliable evidence into what the jury could easily understand to be a mandatory presumption of guilt. We disagree.

It was the jurys prerogative to assess the weight of the evidence. Defendant attempts to surmount this insurmountable obstacle by arguing the use of the slight corroboration language confuses the sufficiency of the evidence test on appeal with the proper jury instruction. Not so. The instruction has nothing to do with the scope of appellate review. Nor does it deflate the quantum of evidence of robbery. It simply allows the jury to draw the reasonable inference that a person in possession of recently stolen property may have stolen it. The instruction does not allow the jury to convict on this evidence alone but does allow only slight evidence to support it. We reject defendants notion that CALCRIM No. 376 somehow distorts the sufficiency of the evidence.

Nor do we agree that the court erred by giving CALCRIM No. 376 in this particular case because the evidence was weak. Defendant was identified by an eyewitness to the robbery, and the testimony of his friend Raianna that she saw him with the victims bag shortly after he returned on her bicycle provided far more than slight corroboration of the positive identification. While the jury was at liberty to accept defendants argument that Raiannas testimony should be discounted because she had been granted use immunity, her credibility does not affect the propriety of giving the instruction. That instruction has been upheld in multiple cases, and it was properly given to the jury in this case.

The judgment is affirmed.

RAYE , J.

We concur:

BLEASE , Acting P.J.

DAVIS , J.

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^[1] CALCRIM No. 376 is the recent revision to CALJIC No. 2.15. Defendant concedes that for purposes of this appeal the two instructions are similar in all material respects. He therefore relies on cases involving CALJIC No. 2.15.