P. v. Horsman

Filed 2/16/07 P. v. Horsman CA1/4

Received for posting 3/28/07

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury found appellant Aaron Matthew Horsman guilty of receiving stolen property. (See Pen. Code,^[1] 496, subd. (a).) He was granted probation and required to serve 120 days in county jail as a condition of probation. Horsman appeals the judgment, contending that prejudicial error occurred because the court failed to instruct the jury on the corpus delicti rule. (See CALJIC No. 2.72.) The Attorney General concedes that the court should have given this instruction but contends that the error was harmless. We affirm the judgment.

I. FACTS

On May 14, 2004, appellant Aaron Matthew Horsman spent the night at Scott Carpenters Vacaville home. Angie Roberts also lived there but she was away on a camping trip that night. After Horsman left the next day, Carpenter went to join Roberts. Carpenter locked all of the doors to the house but did not go into Robertss room to close the bedroom window that she usually left open.

On May 16, 2004, Roberts returned home to find the window closed and locked. She also saw that a black leather CD carrying case, two CD players, some CDs, and a DVD were missing. There was other evidence that her room had been disturbed: Two cats were locked in her bedroom closet, a window screen was on backward, and plants outside her window had been trampled. Roberts called the police, giving Vacaville Police Officer Rod Neal a list of missing items. She told him that she suspected that Horsman had taken them.

Later that day, Officer Neal went to Horsmans house. Horsmans father let him in. Horsmans father and mother searched Horsmans room while Officer Neal watched. During this search, the officer saw a portable CD player, several CDs, a black leather CD case, and a DVD in plain view. Roberts was called to the house. She verified that she owned these items.

When Horsman returned home, Officer Neal was still there. The officer told Horsman that he was investigating stolen property. Officer Neal told Horsman that he was not under arrest. He also stated that stolen property had been found in Horsmans room. When Officer Neal asked Horsman how the property came to be in his room, Horsman admitted that he had taken it. When the officer asked him why, Horsman said, Because Im stupid.^[2] In August 2004, Horsman was arrested.

In January 2005, the Solano County District Attorney filed an information charging Horsman with first degree residential burglary, receiving stolen property, and grand theft. (See 459, 487, subd. (a), 496, subd. (a).) In September 2005, an amended information was filed charging petty theft instead of grand theft. (See  484, subd. (a).) At trial, Officer Neal testified that Horsman told him that he had taken Robertss property [b]ecause Im stupid. In his defense, Horsman and his mother both testified that he actually said Do you think Im stupid? Ultimately, the jury convicted him of receiving stolen property but acquitted him of the other charges. The trial court sentenced Horsman to three years probation on condition that he serve 120 days in county jail.

II. DISCUSSION

A. Prejudice

On appeal, Horsman contends that the trial court did not meet its sua sponte duty to give the jury a corpus delicti instruction. The omitted instruction would have informed the jury that some independent proof, beyond his extrajudicial statements, was required to prove each element of a charged crime before the jury could convict him of it. (See CALJIC No. 2.72.)^[3] Horsman asserts that the prosecution improperly established the knowledge element of receiving stolen property using his extrajudicial statement^[4]alone.^[5] The instruction was not given^[6]and Horsman contends that this failure constituted prejudicial error.

The prosecution must establish the corpus delicti of the crimethat is, it must prove the body or elements of the charged offense. (See People v. Ochoa (1998) 19 Cal.4th 353, 404.) If the prosecution offers the defendants extrajudicial statements into evidence, then the trial court has a sua sponte duty to instruct the jury that those statements alone cannot establish the elements of an offense. (People v. Alvarez (2002) 27 Cal.4th 1161, 1170 (Alvarez); see CALJIC No. 2.72.) The statutory elements of receiving stolen property are that property was obtained by theft or extortion; that the defendant received, concealed, sold, or withheld the property; and that the defendant had knowledge of the theft or extortion. (See 496, subd. (a); see also 2 Witkin, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, 72, pp. 100-101.) In this case, Horsmans knowledge of the stolen nature of the property is the element of receiving stolen property that is in dispute. His extrajudicial statement suggests that he knew the property was stolen. The Attorney General concedes that the trial court had a sua sponte duty to inform the jury of the corpus delicti rule in this case and failed to do so. We agree that the trial court erred by failing to give CALJIC No. 2.72.

The parties disagree about the appropriate standard of prejudice to be applied in this matter. Horsman contends that the Chapman standard should apply to his case. (See People v. Jensen (2003) 114 Cal.App.4th 224, 241; see also Chapman v. California (1967) 386 U.S. 18, 24.) Under Chapman, an error is not prejudicial if it was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) The Attorney General would apply the Watson test. (See People v. Watson (1956)46 Cal.2d 818, 836.) The California Supreme Court has applied the Watson test in the specific context before us. Under that standard, if there is no reasonable probability that the jury would have reached a result more favorable to the defendant had the corpus delicti instruction been given, then the error is harmless. (Alvarez, supra, 27 Cal.4th at p. 1181; see People v. Watson, supra, 46 Cal.2d at p. 836.) Thus, we apply the Watson test to determine whether that omission prejudiced Horsman or was harmless error. (See People v. Watson, supra, 46 Cal.2d at pp. 834-835.)

Under the corpus delicti rule, the independent evidence need not constitute proof beyond a reasonable doubt. A mere inference of criminal conduct is sufficient, even if that evidence could also have a plausible noncriminal explanation. (Alvarez, supra, 27 Cal.4th at p. 1171.) The independent evidence may also be circumstantial, requiring only a slight showing to permit an inference of injury or loss resulting from a criminal agency. If such an inference may be drawn, then the defendants statements may be considered as additional evidence strengthening the prosecutions case. (Id. at p. 1181.) If, as a matter of law, this slight showing was made, then a rational and properly instructed jury could not have found otherwise. In such circumstances, the omission of CALJIC No. 2.72 is necessarily harmless error. (Alvarez, supra, 27 Cal.4th at p. 1181.)

The jury was instructed on the elements of receiving stolen property, including the requirement that Horsman must have actually known that the property was stolen at the time that he had it in his possession. (See CALJIC No. 14.65.) A strong inference of the defendants knowledge of the stolen nature of the property may be drawn when the defendant knowingly possessed property that was recently stolen, if that fact is combined with even slight corroborating evidence of knowledge. (People v. Anderson (1989) 210 Cal.App.3d 414, 421.) When a defendant has goods in possession shortly after a theft occurred, this circumstance rationally suggests a connection to and knowledge of the theft. (Ibid.)

There was evidence of Horsmans knowledge of the stolen nature of the property, independent of his statements to the police. Horsman was present at the scene of the crime two days before the property was found to be missing. He knew that the house would be unoccupied the next day. These missing items were discovered in Horsmans bedroom mere hours after they were reported missing and only two days after Roberts last saw them. This circumstantial evidence rationally suggests a connection to and knowledge of the theft, even if the jury was not convinced beyond a reasonable doubt that Horsman was the thief. (See People v. Anderson, supra, 210 Cal.App.3d at p. 421.) This evidence supports an inference of Horsmans knowledge of the stolen nature of the property, even without considering his extrajudicial statement. As there is no reasonable probability that the jury would have found that Horsman did not have this knowledge if they had been given CALJIC No. 2.72, the failure to give this instruction was harmless error. (See Alvarez, supra, 27 Cal.4th at p. 1181.)

B. Due Process

Horsman also contends that his due process rights were violated when the trial court failed to instruct the jury on CALJIC No. 2.72. He reasons that it impermissibly lightened the prosecutions burden of proof of knowledge of the stolen nature of Robertss property below the requisite proof beyond a reasonable doubt. It is true that due process requires the prosecution to bear the burden of proving all elements of a crime beyond a reasonable doubt. (See In re Winship (1970) 397 U.S. 358, 363-364.) However, when we evaluate this due process issue, we consider all the evidence presented at trial, including the independent evidence of Horsmans knowledge of the stolen nature of the property that we have already outlined. (See pt. II.A., ante.)

The California Supreme Court has held that the federal Constitution does not require a corpus delicti jury instruction. (Alvarez, supra, 27 Cal.4th at p. 1173.) Thus, Horsman had no separate due process right to this instruction. As a rational jury could not have found that Horsman lacked knowledge that Robertss possessions were stolen even without considering evidence of his extrajudicial statements, his due process rights were not implicated by the instructional error.

The judgment is affirmed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Sepulveda, J.

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^[1]All statutory references are to the Penal Code.

^[2]It is unclear from the facts brought out at trial whether or not the officer elicited Horsmans extrajudicial statement in a manner that might implicate his rights under Miranda v. Arizona (1966) 384 U.S. 436. There is no evidence of any Miranda motion or other motion to suppress the statement raised in the trial court, nor is Miranda raised as an issue on appeal.

^[3]In 2005, CALJIC No. 2.72 provided that no one may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [confession] [or] [admission] made by [him] [her] outside of this trial.

^[4]Horsman also contests whether his extrajudicial statement constituted an admission. At trial, the officer testified that, when asked why he stole the property, Horsman replied Because Im stupid, implying that he stole Robertss possessions. Horsmans mother testified that her sons reply was Do you think Im stupid? suggesting that he did not make any admission. Horsmans own testimony was consistent with that of his mother. On appeal, Horsman reasons that the jury did not believe the officer on this disputed point of evidence because he was acquitted of theft and burglary. We disagree. On appeal, all conflicts in the evidence and reasonable inferences are resolved in favor of the jurys verdict. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) Thus, we infer that Horsmans extrajudicial statement was made as described by Officer Neal and constituted an admission.

^[5]Horsman notes that the prosecutors argument about his knowledge of the stolen nature of the property in the receiving stolen property charge turned on the assumption that he knew that Robertss possessions were stolen because he took them. On appeal, he reasons that his acquittals of burglary and petty theft necessarily discredit the prosecutions theft theory and increase the likelihood that the jurys finding of knowledge for purposes of receiving stolen property was based on his extrajudicial statement alone. If that extrajudicial statement and the evidence of the disputed theft was excluded from consideration, Horsman suggests that there is no evidence from which a jury could reasonably conclude that he knew of the stolen nature of the property found in his possession. We disagree with his conclusion. Even if Horsman was not himself the thief, the circumstances of his presence at the scene of the theft shortly before the crime occurred and his knowledge that the home would soon be unoccupied are still facts that may rationally tend to prove his knowledge of the stolen nature of the property later found in his possession. As the jury could properly rely on this circumstantial evidence to prove this disputed element of receiving stolen property even though it acquitted Horsman of burglary and theft, this evidence could constitute the slight evidence needed to allow that jury to consider his extrajudicial statement as evidence of that element as well.

^[6]We note that CALJIC No. 2.71 was given at trial. This instruction provides, in part, that an admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence.