P. v. Tinker

Filed 10/10/07 P. v. Tinker 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Andrew Tinker was found guilty by a jury of receiving stolen property (Pen. Code, 496, subd. (a)),^[1]driving without a valid license (Veh. Code, 12500, subd. (a)) and driving on a suspended license (Veh. Code, 14601.1, subd. (a)). On appeal, he contends the trial court committed instructional error and failed to adequately respond to the jurys request for clarification of jury instructions. We affirm.

BACKGROUND

A detailed recitation of the facts underlying the offense is unnecessary to the resolution of the issues on appeal. Accordingly, we provide an abbreviated version.

Defendant was pulled over by Sacramento County Sheriffs Deputy Michael Beck for driving a car with an expired registration. Defendant told Beck he did not have a drivers license because it had been suspended. Defendant was not the registered owner of the car he was driving.

Inside the car defendant was driving were numerous items belonging to Brad Dacus, including his briefcase, checks, cellular phone and charger, Bible, and a case full of compact discs. These items, and others, had been stolen from Dacuss car the night before. The checkbook, bearing Dacuss name was found on top of the briefcase, which was in plain view on the front passenger seat. Dacuss residence was about 1.2 miles from defendants residence. A bag of tools was also found in the car defendant was driving.

Dacus did not know defendant, give him permission to have his property, or give anyone permission to remove those items from his car. Dacus, who was an asthmatic nonsmoker, could smell cigarette smoke in his car after it was burglarized. A carton of cigarettes was found in defendants car, under Dacuss briefcase.

Defendant argued at trial that the People had not proven he knew the items were stolen.

DISCUSSION

I

Defendant contends the trial court improperly instructed the jury that receiving stolen property is a general intent crime. He argues that the knowledge element of receiving stolen property converts it into a specific intent crime. We find no error.

In assessing claims of instructional error, the reviewing court must consider the instructions as a whole and must assume that the jurors are intelligent beings capable of understanding and correlating all the instructions which are given to them. [Citations.] The correctness of the jury instructions is to be determined from the entire charge of the court and not from parts of an instruction or from a particular instruction. [Citation.] (People v. Lonergan (1990) 219 Cal.App.3d 82, 91-92.)

Here, the trial court instructed the jury with CALCRIM No. 250,^[2]as follows: Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [] In order to be guilty of the crimes charged, a person must not only commit the prohibited act, but must do so intentionally or on purpose. The act required is explained in the instructions for each crime. However, it is not required that he intend to break the law. The jury was then instructed on the elements of receiving stolen property pursuant to CALCRIM No. 1750, including the requirement that [w]hen the defendant received, concealed or withheld the property or aided in concealing or withholding the property, he knew that the property had been stolen.

As set forth in these instructions, the crime of receiving stolen property includes the element of knowledge.^[3] (People v. Martin (1973) 9 Cal.3d 687, 695; People v. Reyes (1997) 52 Cal.App.4th 975, 984.) Contrary to defendants contention, however, the element of knowledge does not, in itself, convert the offense into a specific intent crime.

As a general rule, an offense is a specific intent crime when the definition refers to defendants intent to do some further act or achieve some additional consequence . . . . (People v. Hood (1969) 1 Cal.3d 444, 456-457.) Contrary to defendants assertion, section 496 makes no reference to the accuseds intent to do a further act or achieve an additional consequence. Instead, the knowledge element merely requires the People prove defendant had a certain mental state at the time of the offense -- specifically, that he knew the property was stolen at the time he received it. (People v. Reyes, supra, 52 Cal.App.4th at p. 983, citing People v. Cleaves (1991) 229 Cal.App.3d 367, 380.) Thus, it is not a specific intent crime.

Defendants reliance on People v. Reyes, supra, 52 Cal.App.4th 975, for the sweeping assertion that receiving stolen property is a specific intent crime, is misplaced. Reyes held that with regard to the element of knowledge, receiving stolen property is a specific intent crime, as that term is used in section 22, subdivision (b) [voluntary intoxication evidence admissible to negate specific intent], and section 28, subdivision (a) [evidence of mental disease admissible only on issue of whether accused formed required specific intent]. (Id. at p. 985, italics added.) But as Reyes explained, the criteria of specific intent for [the purpose of section 22] are not necessarily the same as the criteria of specific intent as a measure of the scienter required for an offense. (Id. at p. 984, quoting People v. Fabris (1995) 31 Cal.App.4th 685, 696, fn. 10.)

In this case, CALCRIM No. 1750 properly set forth the measure of the scienter required for the crime of receiving stolen property. (Reyes, supra, 52 Cal.App.4th at p. 984.) Since there was no need for instructions on specific intent for the purpose of section 22 (ibid.), the jury instructions were properly limited to the issue of general criminal intent.

II

Defendant contends the trial court committed reversible error when it failed to adequately assist and clarify jury instructions upon the jurys written inquiry.

The trial court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] (People v. Beardslee (1991) 53 Cal.3d 68, 97.) A court must consider as to each jury question whether further explanation is desirable or whether it should merely repeat the instructions already given. (Ibid.)

Here, the jury asked for clarification on two matters. Defendant contends the trial court did not provide an adequate response to either request. We shall address each request separately.

A.

During deliberations, the jury requested the following: Judge to clarify whether Section 224 or Section 376 is more important or supersedes the other. Specifically, we need clarification on the standard of proof regarding two reasonable conclusions versus slight evidence.

The jury had been instructed with CALCRIM No. 224, as follows: Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.

The jury had also been instructed with CALCRIM No. 376, 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 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 to prove he committed the crime of receiving stolen property. [] 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 the crime of receiving stolen property. [] 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.

After the jury requested clarification, the court discussed the request for clarification with both the prosecutor and defense counsel, and the trial court provided the following written response: All instructions are equally important. [] Instruction 376 refers to supporting evidence that, by itself, might not be enough to prove guilt, but, when considered with all the other evidence is sufficient to prove guilt beyond a reasonable doubt. However, the jury must still be convinced from all the evidence that defendant is guilty beyond a reasonable doubt. [] Instruction 224 relates to how to use and evaluate the reasonable conclusions, if any, that can be drawn from circumstantial evidence.

CALCRIM Nos. 224 and 376 were full and complete as to how to consider circumstantial evidence and defendants conscious possession of recently stolen property. The trial court considered how it could best aid the jury and responded directly to the inquiry by focusing the jurys attention on the subject matter each instruction addresses. The jury expressed no further confusion after the trial courts response to its inquiry. We find no abuse of discretion in the trial courts response.

To the extent defendant seeks to challenge CALCRIM No. 376 itself, he failed to clearly articulate it, failed to set forth any such argument under a separate heading, and failed to present any legal analysis of the law underlying the instruction.^[4] Thus, any such argument has been forfeited. (See, e.g., People v. Baniqued (2000) 85 Cal.App.4th 13, 29; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.)

In any event, CALCRIM No. 376 is a proper instruction. When a defendant is found in conscious possession of recently stolen property, an inference of guilt is permissible if there is at least slight corroborating evidence, either in the form of statements or conduct, that tends to show defendants guilt. (People v. McFarland (1962) 58 Cal.2d 748, 754.) The jury must determine whether the inference should be drawn in light of all the evidence. (Id. at p. 755.) CALJIC No. 2.15 -- the predecessor of CALCRIM No. 376 -- has repeatedly withstood challenge. (See e.g. People v. Williams (2000) 79 Cal.App.4th 1157, 1173-1174, and cases cited therein.)

B.

The jury also asked the trial court to provide a definition of possession.

The record contains no indication defense counsel objected to the response the trial court ultimately provided to the jury. In fact, the record specifically states that counsel had agreed in chambers that the response would simply be to see CALCRIM No. 1750, specifically at the last paragraph. Thus, defendant cannot now be heard to complain about the trial courts response.

It is a well-established principle that when a defendant approves of the trial courts response to a jury question during deliberations, any claim of error with respect to that response is forfeited. (People v. Bohana (2000) 84 Cal.App.4th 360, 373.) Furthermore, where trial counsel fails to object to the courts response to a jury question, the failure to object may be construed as approval of that response. (People v. Boyette (2002) 29 Cal.4th 381, 430; People v. Price (1991) 1 Cal.4th 324, 414; People v. Kageler (1973) 32 Cal.App.3d 738, 746.)

In any event, we find the trial courts response to the jury was adequate. The last paragraph of CALCRIM No. 1750, to which the jury was directed, adequately provides the jury with the definition of possession. That language states: Property is stolen if it was obtained by any type of theft, or

by burglary or robbery. To receive property means to take possession and control of it. Mere presence near or access to the property is not enough. A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.

Defendant loosely implies that the trial court should have provided the jury with the former definition of possession from CALJIC No. 1.24.^[5] He does not, however, present any actual argument that the court should have so instructed the jury. Nor does he suggest what he thinks is more clear about the former CALJIC instruction, nor does he suggest any other appropriate clarification of possession that he believes the trial court was required to provide.

The definition originally provided to the jury was adequate and, thus, the trial courts directive to reread the instruction was a reasonable and sufficient response.

DISPOSITION

The judgment is affirmed.

SIMS , Acting P.J.

We concur:

HULL , J.

BUTZ , J.

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

^[2]Undesignated references to CALCRIM jury instructions are to Judicial Council of California Criminal Jury Instructions (2006-2007).

^[3] Section 496, subdivision (a), provides in relevant part: Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year.

^[4] Defendants headings state that he contends the trial court erred when it failed to provide the jury with assistance and clarification to its request for further information. There is no heading in defendants brief contending that CALCRIM No. 376 is an incorrect statement of law or, even that the trial court erred in instructing the jury with it. At one point, however, defendant does assert that the CALCRIM No. 376 statement that supporting evidence need only be slight is contrary to law. As set forth herein, he is wrong.

^[5] CALJIC No. 1.24 provided: There are two kinds of possession[:] actual possession and constructive possession. Actual possession requires that a person knowingly exercise direct physical control over a thing. Constructive possession does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing either directly or through another person or persons. One person may have possession alone, or two or more persons together may share actual or constructive possession.