P. v. Garcia
Filed 6/26/07 P. v. Garcia CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, Plaintiff and Respondent, v. RICHARD RAY GARCIA, Defendant and Appellant. | B192585 (Los Angeles County Super. Ct. No. BA299227) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Luis A. Lavin, Judge. Affirmed.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
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Richard Ray Garcia was convicted of receiving stolen property (count 1) and possession of methamphetamine (count 2), with true findings on allegations that he had suffered one prior strike and served one prior prison term. (Pen. Code, 496d, subd. (a), 1170.12, subds. (a)-(d), 667, subds. (b)-(i), 667.5, subd. (b); Health & Saf. Code, 11377, subd. (a).) He was sentenced to state prison for a term of two years, eight months. He appeals, claiming instructional error. We affirm.
FACTS
In February 2006, Octavio Valdezs 2006 Ford Taurus was stolen by four armed assailants.
While on patrol a week later, Deputy Sheriff James Jordan spotted the Taurus in a Motel 6 parking lot. After confirming that the car was stolen, the deputy called for backup. While waiting, he saw Garcia approach the Taurus, open the trunk, reach inside, then close the trunk and walk toward the motel. Officer Jordan stopped Garcia, who was arrested and searched, at which time a glass pipe and methamphetamine were found in his pants pocket, and the car keys were found in some nearby bushes. Garcia was charged with receiving stolen property and possession of the drugs.
At trial, the People presented evidence of the facts summarized above, plus evidence that Garcia had told one of the deputies that he had bought the car on the street (from a stranger) three days before his arrest (for $1,700) but the seller had failed to give him a bill of sale. Garcia said he had tried to get rid of the drugs but had instead thrown the car keys into the bushes. Garcia was convicted as charged.
DISCUSSION
Garcia contends the trial court should have sua sponte instructed the jury according to CALCRIM No. 376 (mere possession of recently stolen property is insufficient to prove the crime of possession of stolen property). Assuming error, it was harmless by any standard.[1]
First, the jury was properly instructed according to CALCRIM No. 224 on the general use of circumstantial evidence, and that a finding of guilt cannot be based only on circumstantial evidence unless the proved circumstances cannot be reconciled with any other conclusion and that, if the proved circumstances point reasonably to guilt or innocence, the jury must adopt the interpretation pointing to innocence. Obviously, possession of a stolen car is circumstantial evidence of guilt.
Second, the jurors were properly instructed according to CALCRIM No. 225 that they could not convict Garcia unless the proved circumstances were irreconcilable with any rational conclusion other than a finding that he had the required intent or mental state and, again, that given a choice between interpretations pointing reasonably to guilt or innocence, the jurors must adopt the one leading to innocence.
Third, the jury was properly instructed according to CALCRIM No. 1750 that, with regard to the crime of receiving stolen property, the People had to prove 1. That [Garcia] bought or received property that had been stolen; and 2. When [he] bought or received the property, he knew that the property had been stolen. [] Property is stolen if it was obtained by any type of theft . . . . [] To receive property means to take possession and control of it . . . .
Fourth, assuming the jury should have been expressly instructed that the mere possession of the car was not itself sufficient to support his conviction, this omission was less likely to be prejudicial than a misstatement of the law (which Garcia does not claim occurred in this case). (Henderson v. Kibbe (1977) 431 U.S. 145, 155-156.) The cases relied on by Garcia (for example, People v. Smith (1950) 98 Cal.App.2d 723, People v. McFarland (1962) 58 Cal.2d 748, 758-759) suggest only that the instruction should be given, not that its absence when the jury is otherwise correctly instructed is prejudicial error.
Fifth, the presence of substantial corroborative evidence means the instructional omission could not have been prejudicial in this case. Garcia claimed he bought the car on a street corner from someone he didnt know; that he handed over $1,700 for a new Ford with nothing more than a promise of title papers which never materialized; and that, faced with immediate arrest and knowing he had both the car keys and illegal drugs on his person, Garcia tossed the car keys, not the drugs. On this record, it is not reasonably probable that the additional instruction would have affected the outcome of this trial. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
VOGEL, J.
We concur:
MALLANO, Acting P.J.
ROTHSCHILD, J.
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[1]CALCRIM No. 376, which is substantially similar to former CALJIC No. 2.15, provides as relevant: 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 [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 . . . . [] 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. The issue of whether the trial court has a sua sponte duty to instruct according to CALJIC No. 2.15 is currently pending before the Supreme Court. (People v. Najera, No. S141654, review granted Apr. 26, 2006.)
