P. v. Ordonez

Filed 9/28/06 P. v. Ordonez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Following a jury trial, appellant Javier Ordonez was convicted of one count of residential burglary. (Pen. Code, § 459.) The information filed by the district attorney alleged two prior residential burglary convictions (serious felonies) and one prior prison term. (Pen. Code §§ 667, subd. (a), 1170.12, 667.5, subd. (b).) The trial court sentenced appellant to a prison term of 25 years to life, plus 10 years. Appellant appeals his conviction, arguing that the trial court erroneously instructed the jury with CALJIC No. 2.15, thus depriving him of his constitutional right of due process. We reject his contention and affirm the conviction.

FACTS

On the morning of March 31, 2004, Dona Soto and her husband, Michael Pusatere, left their townhouse in the 2500 block of Harbor Boulevard in Ventura for work. As she was leaving, Soto locked all the doors and drew the blinds over the rear sliding glass door.

Around 1:00 p.m. that afternoon, three Ventura Police Department officers responded to a call reporting a suspicious vehicle parked in the alley behind the 2500 block of Harbor Boulevard. One officer waited in the nearby Vons parking lot while the other two walked down the alleyway and observed a parked white car. The officers saw a woman sitting inside the car. Appellant walked toward the car carrying a white laundry basket full of clothes and other items and put the basket in the rear passenger side of the car.

The officers approached the car and asked appellant and the woman what they were doing. They did not respond. When asked for identification, appellant fled on foot. One officer ran after and detained appellant. Jewelry was discovered in his front pocket during a pat down search. The officers recovered an X-Box video game console, a DVD player, two beers, DVDs and CDs from the laundry basket, and a camera, two remote controls, and a pair of gloves from the front passenger seat.

An officer then scanned the townhouse complex for evidence of a break in. He found the gate leading to Ms. Soto's townhouse ajar and the sliding glass door open. When no one responded from inside the townhouse, the officer entered and found bare wires sticking out of an entertainment center and open boxes on one of the beds. Appellant was arrested.

When Ms. Soto arrived on the scene, she indicated that some electronic devices were missing from her townhouse. She also identified the items found in the car (except the gloves), in the laundry basket, and on the person of appellant as belonging to her. The police evidence technician was unable to recover any fingerprints from within the townhouse.

DISCUSSION

At trial, the court gave CALJIC No. 2.15,^[1] which allows the jury to infer that a defendant found in possession of recently stolen property is guilty of burglary if there is slight corroborating evidence tending to prove his guilt. CALJIC No. 2.15 "is a permissive, cautionary instruction which inures to a criminal defendant's benefit by warning the jury not to infer guilt merely from a defendant's conscious possession of recently stolen goods, without at least some corroborating evidence . . . ." (People v. Barker (2001) 91 Cal.App.4th 1166, 1174; People v. Holt (1997) 15 Cal.4th 619, 677.) "Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt." (People v. McFarland (1962) 58 Cal.2d 748, 754.) The time, place, and manner of possession, the opportunity to commit the offense, and the defendant's conduct may be considered. (See Barker, at pp. 1173-1175.)

Appellant's only contention on appeal is that the court erred when it instructed the jury with CALJIC No. 2.15. According to appellant, this error allowed the jury to convict him on a standard less than proof beyond reasonable doubt, thus depriving him of his constitutional right of due process. Appellant argues that the corroborating evidence identified by the prosecution "does nothing to prove that [he] entered the townhouse with the specific intent to steal," and therefore does not meet the burden of "slight" corroborating evidence.

The California Supreme Court rejected a similar argument in People v. Johnson (1993) 6 Cal.4th 1, 36, overruled on other grounds in People v. Rogers (2006) 39 Cal.4th 826. In Johnson, the court concluded that "the ultimate question whether or not a burglary occurred, and the subsidiary question whether the defendant possessed the requisite preexisting intent to steal, were left to the jury through the usual instructions regarding the elements of that offense. Thus, contrary to defendant's assumption, CALJIC No. 2.15 did not remove the issue of intent from the jury's consideration." (Id. at p. 37.) Appellant's presence at a residence where he did not live, for a short period of 15 minutes, while a companion waited in a car, corroborates the inference, not that he stumbled upon this basket of recently stolen property, but that he entered the townhouse with intent to steal. The use of CALJIC No. 2.15 as to intent was proper in this case, as it was in Johnson.

Appellant relies on Ulster County Court v. Allen (1979) 442 U.S. 140, for the proposition that CALJIC No. 2.15 creates a presumption which undermines the jury's "responsibility at trial, based on evidence adduced by the [prosecution], to find the ultimate facts beyond a reasonable doubt." (Id. at p. 156.) However, the court in that case found that a permissive presumption does not affect the reasonable doubt standard unless, "under the facts of the case, there is no rational way the trier [of fact] could make the connection permitted by the inference." (Id. at p. 157.) Here, the jury could rationally infer from appellant's possession of stolen property that a burglary had been committed. He was found near the burglarized home during the day when there were few residents around. He had time to commit the burglary. When approached by police, he fled. The stolen jewelry was found on his person, and the police, unable to recover fingerprints from the burglarized townhouse, found a pair of gloves in his car. The condensation on the two beers found in the basket indicated they had not been out of the refrigerator long.

The constitutionality of CALJIC No. 2.15 has been upheld where there was sufficient corroborating evidence to allow the jury to find that a defendant possessed stolen property and had an intent to steal. (People v. Smithey (1999) 20 Cal.4th 936, 977.) Jury instructions are not considered in isolation, and whether they are correct or adequate is determined by consideration of the entire charge to the jury. (People v. Holt, supra, 15 Cal.4th at p. 677.) Here, the jury was instructed with the elements of the charged crime, and the burden of proof would not have interpreted CALJIC No. 2.15 as lowering the prosecution's burden of proving appellant's guilt beyond a reasonable doubt. The trial court did not err in giving CALJIC No. 2.15.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Ronald N. Purnell, Judge

Superior Court County of Los Angeles

______________________________

Larry S. Dushkes, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Tasha G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] "If you find the defendant was in possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crime of burglary. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant's guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt.

"As corroboration, you may consider the attributes of possession--time, place, and manner, that the defendant had an opportunity to commit the crime charged, the defendant's conduct, [and] any other evidence which tends to connect the defendant with the crime charged."