P. v. Reyna

Filed 3/1/07 P. v. Reyna CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. William Silveira, Jr., Judge.

Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

______________________

*Before Harris, A.P.J., Wiseman, J., and Dawson, J.

In case No. VCF130264, appellant, Estevan Reyna, pled guilty to one count each of possession of methamphetamine (Health & Saf. Code, 11377) and being under the influence of methamphetamine (Health & Saf. Code, 11550, subd. (a)). In case No. VCF143290, a jury convicted Reyna of one count of possession of stolen property (count 3/Pen. Code, 496, subd. (a)). On December 5, 2005, the court sentenced Reyna to the midterm of two years on his possession of stolen property conviction and a concurrent two-year term on his possession of methamphetamine conviction. On appeal, Reyna contends that in case No. VCF143290 the court erred in charging the jury with CALJIC No. 2.62. We will affirm.

FACTS^[1]

In February 2005, someone stole Carlos Moraless 1998 Chevy Metro from the driveway of his house and Ishmael Covarrubiass Park Hurst utility trailer from the street in front of his house.

On February 22, 2005, California Highway Patrol Officer Robert Rickman was dispatched to Alvina Hernandezs (Alvina) residence in Orosi on a report that there might be stolen vehicles there. Rickman found a jet ski on a trailer and Moraless dismantled Chevrolet Metro in the yard, which he impounded after determining that it had been stolen. Alvina told the officer that she had seen her son, Alex Hernandez (Alex), and Reyna dismantling vehicles in her backyard. Alvina also saw Reyna in the front seat of the dismantled Metro bending down as if he was working on it.

Alvinas daughter, Cipriana Hernandez (Cipriana), testified that she saw Reyna, Alex, and an unidentified man dismantling the Metro. Cipriana saw Reyna come out of the Metro with items and then go back inside. She also retrieved two license plates from the roof of her mothers house.

California Highway Patrol Officer Michael Grove was assigned to investigate the stolen Metro found at Alvinas house. Grove inspected the Metro at the location where it had been impounded. The Metro had been stripped of its interior carpet kit, the seats, the drivers side front panel, the drivers door, the hood, and door panels. Inside the car, Grove found vehicle parts including an engine compartment hood that he determined came from a 1997 Metro that Reyna owned.

On March 8, 2005, Alvina gave Officer Grove the two license plates Cipriana had found. A check disclosed that one belonged to the trailer that was stolen from Covarrubias and the other belonged to the jet ski trailer found on Alvinas property.

On March 10, 2005, Grove went to Reynas house, where Reynas father gave Grove permission to search the premises. In the backyard, Grove found a Park Hurst utility trailer that was full of debris and did not have a license plate. A carpet kit, which was the right size for a Metro, lay on top of the debris.

Grove found the 1997 Metro belonging to Reyna parked on the street. The Metro had an engine compartment hood that Grove determined came from the stolen Metro. Further, the green stripping on the front fender and front door of Reynas Metro matched the stolen Metro.^[2]

Grove further testified that, during an interview with Reyna, Reyna stated he had been to Alvinas house while the stolen Metro and jet ski were there but that the Metro had already been stripped. He denied any involvement in stripping the Metro. Reyna also stated Alex brought the trailer over to his house to clean up the area. Reyna asked Alex if the vehicles were stolen and Alex said they were not.

Reyna testified that he met Alex in December 2004, and had been to his house approximately 10 times. He saw the stolen Metro at Alexs house when it was already dismantled. He did not participate in dismantling the Metro although he did sit inside to look at it.

Reyna further testified that the Park Hurst utility trailer got into Reynas yard because Alex brought it over with Reynas pick-up after Reyna told him they were going to clean the yard. The trailer had been at Reynas house four or five days before Detective Grove went there. Reyna did not know the trailer was stolen. Reyna allowed Alex to drive his Metro about four or five days prior to Alex being arrested. According to Reyna, he did not know how parts from the stolen Metro got on his car but he believed that Alex must have installed them. He noticed that his car was different but never had the opportunity to ask Alex about it because Alex had already been arrested. Reyna was impeached with a prior felony conviction.^[3]

DISCUSSION

During a discussion on jury instructions after both sides rested, the court overruled the defenses objection to charging the jury in the language of CALJIC No. 2.62. In so ruling the court stated,

. . . Court indicated over your objection that I intended to give [CALJIC No. 2.62] and the basis [on] which I intend to give [it] is the defendant, when confronted with the car mat kit evidence on the trailer, had no adequate explanation for it.

The court subsequently charged the jury in the language of CALJIC No. 2.62 as follows:

In this case defendant has testified to certain matters. [] If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. [] The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [] If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.

Reyna contends the court prejudicially erred in charging the jury with this instruction. Respondent concedes the court erred but argues that the error was not prejudicial. We agree with respondent.

[A]ssertions of instructional error are reviewed de novo. [Citation.] It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citations]. [Citations.] An appellate courts duty in reviewing a claim that CALJIC No. 2.62 was improperly given is to ascertain if [the] defendant . . . failed to explain or deny any fact of evidence that was within the scope of relevant cross-examination. [Citation.] In order for the instruction to be properly given [t]here [must be] facts or evidence in the prosecutions case within [the defendant's] knowledge which he did not explain or deny. [Citation.] A contradiction between the defendant's testimony and other witnesses testimony does not constitute a failure to deny which justifies giving the instruction. [Citation.] [T]he test for giving the instruction is not whether the defendant's testimony is believable. CALJIC No. 2.62 is unwarranted when a defendant explains or denies matters within his or her knowledge, no matter how improbable that explanation may appear. [Citation.]

Appellate courts have frequently warned that trial courts should carefully consider whether CALJIC No. 2.62 should be given. For example, in People v. Haynes (1983) 148 Cal.App.3d 1117, . . . the court stated: We heartily agree that in light of the hostile reception this instruction has received of late from legal logicians and semanticists [citations] it will always be unwise of a trial court to include it among its general instructions without prior inquiry of the parties concerning it. In fact, today it should not even be requested by either side unless there is some specific and significant defense omission that the prosecution wishes to stress or the defense wishes to mitigate. In the typical case it will add nothing of substance to the store of knowledge possessed by a juror of average intelligence. Furthermore, if its terms are adhered to, as presumably they will be, its message will be essentially irrelevant in the absence of some designated glaring hiatus in the defendant's testimony. In such an instance, of course, this lacuna will presumably be the subject of debate and emphasis during the parties' arguments to the jury, with or without the neutral guidelines contained in this recently disfavored instruction. [Citations.] (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469-1470, original italics and fn. omitted.)

[Moreover,] [o]ne reason courts have found the improper giving of CALJIC No. 2.62 to be harmless is that the text of the instruction itself tells the jury that it would be unreasonable to draw an adverse inference if the defendant lacks the knowledge needed to explain or deny the evidence against him. As the court in People v. Ballard (1991) 1 Cal.App.4th 752, 756, . . . noted: CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt). In addition, courts have noted that the fact that juries are instructed, pursuant to CALJIC No. 17.31, to disregard any instruction which applies to a state of facts which you determine does not exist, also mitigates any prejudicial effect related to the improper giving of CALJIC No. 2.62. [Citation.] (People v. Lamer, supra, 110 Cal.App.4th at p. 1472.)

Here, the court found that the instruction was applicable because Reyna failed to explain how the carpet kit got on the trailer. However, Reyna testified that he did not know how it got there. Thus, the court erred in charging the jury with CALJIC No. 2.62 because under Lamar, Reynas lack of knowledge did not amount to a failure to explain. However, we conclude that the prejudicial effect of the instruction was minimal for the reasons discussed in Lamar including that the court here charged the jury in the language of CAJIC No. 17.31. This instruction provides,

The purpose of the courts instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given I am expressing an opinion as to the facts.

Further, the prosecutor presented strong evidence indicating that Reyna possessed parts from the stolen Metro. In People v. McFarland (1962) 58 Cal.2d 748, 754, the California Supreme Court stated,

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. [Citations.] (P)ossession of stolen property, accompanied by no explanation or an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen. The rule is generally applied where the accused is found in possession of the articles soon after they were stolen. [Citation.] In People v. Citrino, supra, 46 Cal.2d 284, 288-289, 294 P.2d 32, 35, after pointing out that corroboration need only be slight and may be furnished by conduct of the defendant tending to show his guilt, we said, and the failure to show that possession was honestly obtained is itself a strong circumstance tending to show the possessors guilt of the burglary. [Citations.]

Here, the evidence established that the stolen Metro parts were on Reynas Metro within weeks after the Metro was stolen from Morales. Further, the jury could reasonably have found that Reyna provided an unsatisfactory explanation for how the parts from the stolen Metro wound up on his Metro and that this circumstance provided the requisite corroboration that Reyna was aware his Metro had stolen parts installed on it. Thus, in view of all the circumstances discussed above, we conclude that it is not reasonably probable Reyna would have received a more favorable result even if the court had not instructed the jury with CALJIC No. 2.62.

DISPOSITION

The judgment is affirmed.

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^[1] The facts underlying case No. VCF130264 are omitted because Reyna has not raised any issues relating to that case.

^[2] The parties erroneously assume that the possession of stolen property offense charged in count 3 was based on Reynas possession of the carpet kit which appeared to have been taken from the stolen Metro. However, during the prosecutors opening statement he clearly stated that this offense was based on Reynas possession of the stolen Metro parts that had been installed on Reynas Metro.

^[3] Reyna was originally charged with one count each of operating a chop shop (count 1/Veh. Code, 10801), possession of a stolen vehicle (count 2/Pen. Code, 496d, subd. (a)), and possession of stolen property. The possession of a stolen vehicle offense was based on Reynas possession of the trailer that was found in his yard. The possession of stolen property offense was based on his possession of stolen auto parts that were found mounted on his car. The jury acquitted Reyna on count 2 and hung on count 1, which subsequently was dismissed.