P. v. Rios

Filed 10/26/06 P. v. Rios CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Dewey L. Falcone, Judge. Affirmed.

Rachel Lederman, 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, Assistant Attorney General, Lance E. Winters and Richard T. Breen, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Anthony Diaz Rios appeals the judgment entered after conviction by jury of first degree robbery and first degree burglary in which he personally used a firearm, unlawful possession of a firearm and two counts of grand theft of a firearm. (Pen. Code, §§ 211, 459, 12022.53, subd. (b), 12021, subd. (a)(1), 487, subd. (d)(2.)^[1] Rios admitted a prior conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) and section 667, subdivision (a)(1). The trial court sentenced Rios to a term of 23 years in state prison on this case and imposed a consecutive term of 5 years and 8 months on another robbery case, for a total term of 28 years and 8 months.

Rios contends the trial court committed prejudicial error in responding to a jury question and in instructing the jury on possession of recently stolen property. We reject these claims and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The prosecution’s evidence.

On April 15, 2004, at approximately 1:00 a.m., Ben King responded to a knock at the door of his South Gate residence. King saw Rios at the door and, believing he may have met Rios online, permitted Rios to enter the home. Once inside, Rios produced a .40 caliber pistol and directed King to lay face down on the floor while Rios searched the room. Rios asked whether King had any guns, narcotics or money. Rios then directed King into the back room and ordered King to lay face down on the bed. Rios rummaged through a back pack that contained three cameras, a Huntington Park Police photographer’s badge and other miscellaneous items. Rios collected property in the back pack and again asked whether King had any guns. King indicated he had a rifle in the closet and a .25 caliber Colt handgun in a drawer. Rios took both weapons, bound and gagged King and then left the residence. King, who worked as a tow truck driver, heard what sounded like a Volkswagen drive from the residence.

On April 21, 2004, a United States postal inspector detained Rios in an older model Volkswagen. Inside the Volkswagen, postal inspectors found a .40 caliber pistol, ammunition, King’s Huntington Park police photographer’s badge and one of King’s digital cameras.

King identified Rios in a photographic lineup eight days after the robbery and in court. King indicated he was 100 percent certain of each identification. King also identified the handgun found in Rios’s car as similar to the one used in the robbery.

2. Defense evidence.

Rios testified in his own defense. He denied robbing King and explained that he purchased the badge and the camera from a street vendor in Huntington Park for $100, thinking he would be able to resell them. Rios purchased the handgun for $200 from “a friend of a friend” two weeks prior to the alleged robbery of King.

Rios admitted on cross-examination that he had suffered three felony theft related convictions.

3. Jury question.

Shortly after deliberations commenced, the jury asked, in writing: “Were the two firearms that were alleged to be stolen [mentioned] in the police report and are they registered to Mr. King. The rifle and pistol that were taken from Mr. King.” The trial court responded, in writing, “It was in his possession and it doesn’t make any difference.”

DISCUSSION

1. The trial court’s response to the jury’s question does not require reversal.

Rios contends the trial court’s response to the jury’s question was inadequate and deprived him of the right to a jury trial. Rios suggests the jury likely construed the trial court’s response to mean that Rios had possession of the guns at some point, even though they were never recovered. The trial court’s additional comment, “it doesn’t make any difference,” implied the jury was not required to find beyond a reasonable doubt that the guns belonged to King or were in his possession. Rios argues the trial court’s response improperly eliminated the jury’s doubt with respect one element of the charge, an element that was weak as demonstrated by defense counsel’s argument to the jury that King appeared to have been reluctant to testify as if he were hiding something. Rios notes the offense of theft of a firearm requires the firearm to be taken from its owner. Thus, the response violated his right to jury trial on every element of the charged offense. (United States v. Gaudin (1995) 515 U.S. 506, 522-523 [132 L.Ed.2d 444].) He claims the error is subject to Chapman review (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]) because it omitted an element of the offense. (People v. Flood (1998) 18 Cal.4th 470, 503-507.)

This claim is meritless. Section 1138 imposes a duty on the trial court to clarify any confusion the jury may have with respect to the instructions.^[2] (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.) If “ ‘ “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 jury’s request for information.” ‘ [Citations.]” (People v. Smithey (1999) 20 Cal.4th 936, 985.)

Before addressing the merits of Rios’s claim, we note that Rios has waived this contention by failing to object to, or request modification of, the trial court’s response. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193; see also People v. Guiuan (1998) 18 Cal.4th 558, 570; People v. Beeler (1995) 9 Cal.4th 953, 983.)

Notwithstanding the waiver, the trial court’s response adequately addressed the jury’s question. The question essentially asked whether there was any corroboration of King’s claim that Rios took two firearms. The trial court’s response the guns were in his possession and it did not make any difference merely advised the jury the theft offense required only that the weapons be taken from King’s possession. This admonition was correct. Theft is defined as unlawfully taking “the personal property of another . . . .” (§ 484, subd. (a).) Where the property is a firearm, the offense is grand theft. (§ 487, subd. (d)(2).) Thus, there is no requirement the property be taken from its owner.

Rios’s claim the jury might have interpreted the response improperly to indicate the guns were in Rios’s possession is not persuasive. The question asked whether King mentioned the weapons to the police or if they were registered to King. The jury naturally would have interpreted “his possession” to refer to King’s lawful possession of the firearm and not a directive that Rios was guilty because he was in possession of the firearms. Because it is highly unlikely the jury interpreted the trial court’s response as an admonition that Rios possessed King’s firearms or that the possession element of the theft charge had been satisfied, Rios’s claim of error fails. (See People v. Beardslee (1991) 53 Cal.3d 68, 97-98.)

2. Instruction on possession of recently stolen property.

The trial court instructed the jury in the words of CALJIC. No. 2.15 as follows: “If you find that a defendant was in [conscious] 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 crimes charged. 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, [or] [any other evidence which tends to connect the defendant with the crime charged.”

Rios contends this instruction should not be given where a satisfactory explanation has been given for the possession of the recently stolen property because, in that circumstance, no inference of guilt may be drawn. (People v. Lyons (1958) 50 Cal.2d 245, 258; disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 32.) Rios further claims the instruction improperly permits the jury to disregard a believable explanation for possession of the stolen property based on conscious possession of the property and slight corroborating evidence. Thus, the instruction amounts to an improper presumption and it fails to advise the jury the inference of guilt is not applicable unless an unsatisfactory explanation is proved beyond a reasonable doubt. (County Court of Ulster County v. Allen (1979) 442 U.S. 140, 167 [60 L.Ed.2d 777].) Rios concludes the error requires reversal because the instruction reduced the People’s burden of proof and violated his right to a jury trial.

Rios failed to object to this instruction in the trial court. Accordingly he cannot now raise the point on appeal. (People v. Hart (1999) 20 Cal.4th 546, 622.)

Additionally, Rios’s primary claim, that CALJIC No. 2.15 should not be given where the defendant offers a satisfactory explanation for possession of the stolen property, was rejected in People v. Williams (2000) 79 Cal.App.4th 1157, 1173. Williams, citing Barnes v. United States (1973) 412 U.S. 837 [37 L.Ed.2d 380], held the failure to explain possession of recently stolen property is not a constitutionally mandated foundational requirement for drawing an inference of guilt. Although Barnes sets forth a common law rule that permits an inference of guilt from (1) recently stolen property, (2) the defendant’s possession of it, and (3) the lack of an explanation, “Barnes [does not] suggest that no circumstances other than the lack of an explanation can combine with conscious possession of recently stolen property to support an inference of guilt. Rather, as CALJIC No. 2.15 acknowledges, an inference of guilt may rationally arise from the concurrence of conscious possession and many other circumstances. . . .” (People v. Williams, supra, at p. 1173.)

Rios’s secondary claims, that CALJIC No. 2.15 impermissibly lightens the People’s burden of proof and gives rise to an impermissible mandatory inference, repeatedly have been rejected. (People v. Yeoman (2003) 31 Cal.4th 93, 131; People v. Prieto (2003) 30 Cal.4th 226, 248; People v. Smithey, supra, 20 Cal.4th at pp. 975-978; People v. Holt (1997) 15 Cal.4th 619, 677; People v. Gamble (1994) 22 Cal.App.4th 446, 454-455.) With respect to the assertion CALJIC No. 2.15 creates an impermissible mandatory inference, the instruction has been held to give rise only to a permissive inference which “violates due process ‘only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.’ “ (People v. Gamble, supra, at pp. 454-455.) Here, Rios’s conscious possession of King’s property five days after it was taken, combined with King’s testimony that he was 100 percent certain that Rios robbed him using a gun that resembled the one found in Rios’s possession, justified the conclusion suggested by the instruction. Thus, the inference did not relieve the People of the burden of proving guilt beyond a reasonable doubt.

Moreover, it has been recognized that CALJIC No. 2.15, in general, is favorable to the defendant in that it advises the jury that possession of stolen property, standing alone, is insufficient to permit an inference of guilt. (People v. Mendoza (2000) 24 Cal.4th 130, 176-177.)

In sum, the trial court committed no reversible error in giving the instruction.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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

^[2] Section 1138 provides, in relevant part: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant and his counsel, or after they have been called.”