P. v. Munoz
Filed 1/31/14 P. v. Munoz CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
CODY MUNOZ,
Defendant and
Appellant.
A135661
(
Super. Ct. No. 05-111577-3)
Defendant Cody Munoz was convicted by jury of robbery, receiving stolen
property and petty theft. On appeal, he contends (1) the jury
instructions permitted the jury to convict him of robbery without proof beyond
a reasonable doubt of all elements of the offense, (2) the evidence was
insufficient to support the petty theft conviction, and (3) he could not
be convicted of both robbery and receiving the property stolen in the robbery. The Attorney
General concedes the receiving stolen property conviction must be reversed. We reverse that conviction, but we reject
Munoz’s other arguments and, therefore, affirm the judgment in all other
respects.
I.
BACKGROUND
On March
22, 2011, Gurbinder Sokhi was working in
his liquor store, Vintage Wine and Liquor, on Clayton Road in
Concord. At approximately 10:30
or 10:40 p.m., Munoz and D.W., a minor, entered the store. D.W. walked to the liquor section of the
store, and Munoz walked to the beer section. Both D.W. and Munoz appeared to be under 21
years of age.
Sokhi
saw D.W. pick up a bottle of Bailey’s liquor and hide it under his jacket. Sokhi yelled, “ ‘Put that back.’ †D.W. put the bottle back, but picked up a
bottle of Grand Marnier. Sokhi asked D.W.
to put the bottle back four or five times, but D.W. put it under his jacket and
walked to the front of the store. Sokhi
blocked the store exit to prevent D.W. from leaving. As D.W. approached the exit, Sokhi tried to
grab the bottle. D.W. called to Munoz to
help him.
Munoz joined
D.W., and together they pushed Sokhi out of the store. Once outside, Munoz and D.W. hit Sokhi on the
head and kicked his legs. Munoz hit
Sokhi more than six or seven times. Either
Munoz or D.W. hit Sokhi on the head with the bottle of Grand Marnier. At some point, the bottle fell to the ground,
and Munoz and D.W. picked it up and fled.
Later that night (at approximately 12:00 a.m. on March 23, 2011), Concord
Police Officer Scott Gillespie was notified that two males were breaking into
cars near the intersection of Walnut and Farm Bureau Road in Concord, about a
mile from the Vintage Wine and Liquor store.
When he arrived in the area, Gillespie saw Munoz and D.W. sitting inside
a gold Mercedes Benz 300 parked in front of Leroy Gerke’s residence on Farm
Bureau Road. The car doors were open. Munoz was in the driver’s seat, and D.W. was in
the passenger’s seat. Gillespie stopped
his police car 10 to 15 feet behind the Mercedes and approached it on foot.
When Gillespie
shone a light on the Mercedes, Munoz got out of the car. He was holding a bottle of Grand Marnier that
was three-fourths full. D.W. jumped into
bushes on the passenger side of the car.
After detaining Munoz, Gillespie searched Munoz and found a socket
wrench, wire cutters, and a screwdriver in his pockets. Based on his knowledge and
items could be used to break into or steal cars—a
screwdriver can be inserted into the ignition to start a car, wire cutters can
be used to “hot wire[]†older cars, and a heavy object like a socket wrench can
be used to break car windows.
Gillespie
searched the area where D.W. had attempted to hide, which was about five feet
from the Mercedes. Gillespie found a
large silver purse, a red flashlight, a blue knife, and a cell phone.
Gerke
told Gillespie the purse and flashlight had been inside his Honda Odyssey
minivan, which was parked in his driveway.
minivan and did not lock the Mercedes. Gillespie
did not believe Munoz or D.W. used the tools found on Munoz to enter the minivan.
Munoz was charged by information with (1) second degree robbery
of Sokhi (Pen. Code,
name="_ftnref2" title="">[2] §§ 211,
212.5, subd. (c), count one); (2) second degree vehicle burglary
(§§ 459, 460, subd. (b), count two); (3) receiving stolen
property (the bottle of Grand Marnier) (§ 496, subd. (a), count three);
and (4) petty theft from Gerke (§§ 484, 488, count four). The court later dismissed count two.
The jury found Munoz guilty on counts one, three, and four. The court suspended execution of sentence as
to count one and placed Munoz on probation, with the condition he serve 365
days in jail; the court imposed concurrent jail terms for counts three and four.
Munoz
appealed.
II.
DISCUSSION
A. The Jury Instructions
1. Background
The court
instructed the jury on the elements of robbery and the requirements for
conviction on an aiding and abetting theory. The court, using CALCRIM No. 376, instructed
the jury about the significance of a defendant’s knowing possession of recently
stolen property: “If you conclude that a
defendant knew he possessed property and you conclude that the property had in
fact been recently stolen, you may not convict the defendant of robbery based
on those facts alone. However, if you
also find that supporting evidence tends to prove his or her guilt, then you may
conclude that the evidence is sufficient to prove he committed robbery. [¶] 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 or her guilt of robbery.
[¶] Remember that you may not
convict a 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.†(Italics
added.)
The
trial court instructed the jury about the prosecution’s burden of proof, using
CALCRIM No. 220, which states in part: “A
defendant in a criminal case is presumed to be innocent. This presumption requires that the People
prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something,
I mean they must prove it beyond a reasonable doubt unless I specifically tell
you otherwise. [¶] . . . [¶]
Unless the evidence proves a defendant
guilty beyond a reasonable doubt, he or she is entitled to an acquittal and you
must find the defendant not guilty.â€
2. Analysis
Munoz argues the
jury instructions, especially CALCRIM No. 376, allowed the jury to convict
him of robbery without finding the prosecution proved the elements of the offense
beyond a reasonable doubt. We disagree.
“We review de novo
whether a jury instruction correctly states the law. [Citation.]
Our task is to determine whether the trial court ‘ “fully and
fairly instructed on the applicable law.†[Citation.]’ [Citation.]
[¶] ‘ “When reviewing a supposedly ambiguous [i.e.,
potentially misleading] jury instruction, ‘ “we inquire ‘whether there is
a reasonable likelihood that the jury has applied the challenged instruction in
a way’ that violates the Constitution.†’ †[Citation.]’
[Citation.]†(People v. Lopez
(2011) 198 Cal.App.4th 698, 708.)
As noted, CALCRIM
No. 376 informs jurors they may not convict a defendant of robbery based
solely on a defendant’s knowing possession of recently stolen property. But if “supporting evidence,†which may be
“slight,†also tends to prove the defendant’s guilt, the jury “may†conclude
the evidence is sufficient to prove the defendant committed robbery. (CALCRIM No. 376.)
Courts have consistently held CALCRIM No. 376 and its
predecessor, CALJIC No. 2.15, do not lower the prosecution’s burden of
proof. (E.g., People v. Letner and Tobin (2010) 50 Cal.4th 99, 189 [“there was no
suggestion in [CALJIC No. 2.15] that the jury need not find that all of
the elements of robbery (or theft) had been proved beyond a reasonable doubtâ€];
People v. Gamache (2010) 48 Cal.4th
347, 376 [CALJIC No. 2.15 does not lower prosecution’s burden of
establishing guilt beyond a reasonable doubt]; People v. Lopez, supra, 198 Cal.App.4th at p. 711 [CALCRIM
No. 376 does not lower burden of proof]; People v. O’Dell (2007) 153 Cal.App.4th 1569, 1576–1577
[same].) As courts have noted, the instruction is “generally favorable to defendants; its purpose is
to emphasize that possession of stolen property, alone, is insufficient to
sustain a conviction for a theft-related crime.†(People
v. Gamache, supra, at p. 375 [CALJIC No. 2.15]; see
[CALCRIM No. 376].) While the instruction
permits the jury to infer guilt when there is supporting evidence, this
inference is permissive, not mandatory.
(People v. Snyder (2003) 112
Cal.App.4th 1200, 1226 [CALJIC No. 2.15].)
“Because
a jury may accept or reject a permissive inference ‘based on its evaluation of
the evidence, [it] therefore does not relieve the People of any burden of
establishing guilt beyond a reasonable doubt.’ [Citation.]
Requiring only ‘slight’ corroborative evidence in support of a
permissive inference, such as that created by possession of stolen property, does
not change the prosecution’s burden of proving every element of the offense, or
otherwise violate the accuser’s right to due process unless the conclusion
suggested is not one that reason or common sense could justify in light of the
proven facts before the jury.†(
1173 [“As long as the corroborating evidence together with the conscious
possession [of recently stolen property] could naturally and reasonably support
an inference of guilt, and that inference is sufficient to sustain a verdict
beyond a reasonable doubt, we discern nothing that lessens the prosecution’s
burden of proof or implicates a defendant’s right to due process.â€].)
Despite the above case law, Munoz argues the instructions in this
case permitted the jury to convict him without finding the prosecution proved
the elements of robbery beyond a reasonable doubt. Munoz notes the trial court’s general
burden-of-proof instruction, CALCRIM No. 220, states “the
People [must] prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something,
I mean they must prove it beyond a reasonable doubt unless I specifically tell
you otherwise.†Munoz then asserts the
court, by using CALCRIM No. 376, “told the jury otherwise,†i.e., the
court stated an exception to the prosecution’s burden of proof beyond a
reasonable doubt. We disagree. First, for the reasons discussed above, the
permissive inference authorized by CALCRIM No. 376 (based on knowing
possession of recently stolen property and slight supporting evidence) does not
alter, or state an exception to, the prosecution’s burden of proof. Second, CALCRIM No. 376 itself expressly
confirms the burden of proof,
emphasizing jurors may not convict a defendant of any crime unless they are “convinced
that each fact essential to the conclusion that the defendant is guilty of that
crime has been proved beyond a reasonable doubt.†(CALCRIM No. 376.)
Munoz argues that,
because this portion of the instruction states the jury must find proof of each
“fact†essential to guilt (instead of referring to each “element†of the
offense), the jury could convict based only on proof of certain “factsâ€
specified in CALCRIM No. 376, without finding proof of all elements of
robbery. We do not find it reasonably
likely the jury applied the court’s instructions in a manner that allowed
conviction without proof of all elements of the crime beyond a reasonable
doubt. (See People v. Lopez, supra,
198 Cal.App.4th at p. 708.) The
court instructed the jury as to the elements of robbery. The court also emphasized
the burden of proof in its general instructions and in CALCRIM No. 376, as
well as in other instructions. It is
not reasonably likely the jury ignored the instructions on the elements of
robbery and the burden of proof and construed CALCRIM No. 376 (requiring proof
of each “fact†essential to guilt of robbery) to permit conviction without
proof of the elements of robbery specified by the court. (We note the court’s instruction on the
elements of robbery immediately followed its reading of CALCRIM No. 376.)
Finally,
Munoz suggests the court’s aiding and abetting instructions, in conjunction
with CALCRIM No. 376, could have caused jurors to be confused as to
whether they had to find the elements of robbery had been proved beyond a
reasonable doubt. We disagree. The court, using CALCRIM No. 401,
instructed the jury as to the elements of aiding and abetting liability.
at the scene of the crime or failed to prevent the crime, you may consider that
fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at
the scene of a crime or fails to prevent the crime does not, by itself, make
him or her an aider and abettor.†This
instruction favored Munoz by emphasizing that his presence at the scene of the
robbery, while relevant, was not sufficient to establish he was an aider and
abettor. The instruction did not state
or suggest jurors should disregard the court’s instructions that they could
only convict Munoz of robbery upon proof beyond a reasonable doubt that he committed,
or aided and abetted the commission of, robbery. It is not reasonably likely the jury applied CALCRIM
No. 401 (either alone or in conjunction with CALCRIM No. 376) in a
way that nullified the court’s instructions requiring such proof.
B. Sufficiency of the Evidence of Petty Theft
(Count Four)
Munoz contends there is insufficient evidence to support his
conviction of petty theft of property from Leroy Gerke. To determine whether the prosecution met its
burden to prove a charge beyond a reasonable doubt, we apply the “substantial
evidence†test. (People v. Cuevas
(1995) 12 Cal.4th 252, 260.) Under that
standard, we “ ‘must review the whole record in the light most favorable
to the judgment below to determine whether it discloses substantial evidence—that
is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citations.]†(Id.
at pp. 260–261, original italics.)
“ ‘Substantial evidence includes circumstantial evidence and any
reasonable inferences drawn from that evidence.
[Citation.]’ [Citation.] We ‘ “ ‘presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the
evidence.’ †[Citation.]’ [Citation.]â€
(People v. Clark (2011) 52 Cal.4th
856, 943.)
A person commits
theft if he takes possession of property without the owner’s consent, with the
intent to deprive the owner of it permanently, and moves the property, even a
small distance. (See
305; CALCRIM No. 1800.) Evidence a
defendant aided and abetted a theft also will support a conviction of theft. (See People v. Guzman (1996) 45
Cal.App.4th 1023, 1027.)
Applying the above standards, we conclude there is substantial
evidence supporting Munoz’s conviction of petty theft. Officer Gillespie testified that, after Munoz
was arrested, he stated he and D.W. had decided to walk up Farm Bureau Road to check whether parked cars were locked, and to take money or
property that could be sold for money. When Gillespie arrived at Gerke’s house, he
saw Munoz and D.W. sitting in Gerke’s Mercedes in front of the house. As Gillespie approached, D.W., who was sitting
in the passenger seat, jumped out of the car and into some bushes. Gillespie found in the bushes a silver purse
and a red flashlight. Gillespie
testified Gerke told him the purse and flashlight belonged to Gerke and had
been inside Gerke’s Honda Odyssey minivan, which was parked in his driveway.
Based on this evidence, the jury reasonably could have inferred
that, while Munoz and D.W. were checking parked cars for items to steal, they
entered Gerke’s minivan and took the purse and flashlight. The jury could have inferred Munoz and D.W. took
the items into the Mercedes, and D.W. then took them when he jumped into the
bushes.
Munoz argues the evidence does not support a logical inference that
he took possession of, or moved, Gerke’s property. We disagree.
The jury reasonably could have concluded Munoz and D.W. were working in
concert, based on the evidence they were checking parked cars together for
items to steal (and bolstered by the evidence they robbed Sokhi together
earlier in the evening). Moreover, as
noted, the testimony the purse and flashlight were found in the bushes where D.W.
attempted to hide allowed an inference the items were in the Mercedes with
Munoz and D.W. before D.W. jumped out. The
jury, therefore, reasonably could have concluded Munoz and D.W. took the items from
the minivan and moved them. Although the
evidence does not establish with certainty which individual physically carried
the items out of the minivan, the jury reasonably could have concluded Munoz
either took the items himself or aided and abetted D.W. in the theft of the
items.
Munoz also contends there is no evidence he knew that the items existed
or that anyone stole them. Again, we
disagree. Because Munoz and D.W. were
checking parked cars together for items to steal, and because the evidence
allows an inference the items were in the Mercedes before D.W. jumped out, the
jury reasonably could infer Munoz knew the items existed and were stolen.
After reviewing the record in the light most favorable to the
judgment, we conclude there is substantial evidence such that a jury reasonably
could find Munoz guilty of petty theft beyond a reasonable doubt. (See People v. Clark, supra, 52 Cal.4th at
p. 943.)
C. The Receiving Stolen Property Conviction
(Count Three)
The Attorney General concedes Munoz should not have been convicted
of both robbery and receiving the property stolen in the robbery (the Grand
Marnier). (See § 496,
subd. (a); People
v. Stephens
(1990) 218 Cal.App.3d 575, 586–587.) We
will reverse the conviction for receiving stolen property. (See People v. Ceja (2010) 49 Cal.4th
1, 10; People v. Stephens, supra, at p. 587.)
III.
DISPOSITION
The receiving stolen property conviction (count three) is
reversed. In all other respects, the
judgment is affirmed.
______________________
Becton, J.*
We concur:
______________________
Margulies, Acting P.J.
______________________
Banke, J.
* Judge of the
Contra Costa County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
his wife had just bought it.
stated.
