P. v. Kuechler

Filed 8/14/06 P. v. Kuechler CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed in part and reversed in part.

Laura S. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

Following a jury trial, defendant was convicted of receiving stolen property (Pen. Code, § 496, subd. (a))^[1] (count 1) and first degree residential burglary (§ 459) (count 2). Defendant was thereafter sentenced to the middle term of four years on count 2 and the middle term of two years on count 1, which was stayed pursuant to section 654. On appeal, defendant contends (1) the trial court erred in preventing the defense from impeaching a prosecution witness with prior conduct involving moral turpitude; (2) the trial court erred in instructing the jury with instructions about aiding and abetting (CALJIC Nos. 3.00 and 3.01); (3) even if CALJIC Nos. 3.00 and 3.01 were properly given to the jury, the trial court erred in failing to instruct the jury with CALJIC No. 14.54; (4) the trial court's aiding and abetting instructions improperly introduced a new theory of culpability to a deliberating, deadlocked jury, without notice to counsel and without affording counsel the opportunity to argue the issue to the jury; and (5) the cumulative errors denied him his due process right to a fair trial. We agree with the parties that the trial court erred in instructing the jury with the aiding and abetting instructions and reverse the burglary conviction.^[2]

I^[3]

DISCUSSION

The prosecution's theory of the case here was that one person (defendant) had burglarized the victim's home. Defendant was in possession of the property taken from the victim's house when he was arrested. Defendant, however, contested that he had burglarized the victim's home and challenged the credibility of the prosecution's sole eyewitness. Defendant testified that he had purchased the property from two homeless men behind a grocery store and admitted that he knew the items were probably stolen when he bought them. Arguments and jury instructions comported with the prosecution's theory that defendant had burglarized the house himself; there was no evidence that defendant had aided and abetted in burglarizing the victim's home.

Jury deliberations began at 2:55 p.m. on July 27, 2005. The jury was excused for the day no later than 4:30 p.m. The jury resumed deliberations at 9:35 a.m. on July 28, 2005. About 2:30 p.m., the jury sent a note to the court indicating it was deadlocked on count 2 (the burglary charge). The jury inquired of the court if â€