P. v. Eustice

Filed 5/10/07 P. v. Eustice CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Eddie Eustice was convicted after jury trial of first degree burglary (Pen. Code, 459, 460, subd. (a)),[1]attempted first degree burglary ( 664, 459, 460, subd. (a)), and willful failure to appear in court while released on bail ( 1320.5). The trial court sentenced defendant to four years in state prison, the sentence consisting of the middle term of four years for the burglary count and concurrent terms of two years each on the remaining two counts.

On appeal defendant contends that the burglary conviction must be reversed due to prejudicial instructional error. He further contends that the failure-to-appear conviction must be reversed for various reasons, including due to the insufficiency of the evidence to support it. The Attorney General concedes that the failure-to-appear conviction must be reversed due to the insufficiency of evidence, and that defendant cannot be retried on that count, and we agree with the concession. However, we find no prejudicial instructional error. Accordingly, we will reverse the failure-to-appear conviction, modify the judgment by striking the concurrent sentence imposed for that conviction, and affirm the judgment as so modified.

BACKGROUND

Defendant was charged by first amended information with first degree burglary ( 459, 460, subd. (a); count 1), attempted first degree burglary ( 664, 459, 460, subd. (a); count 2), and willful failure to appear while released on bail ( 1320.5; count 3). Viewing the record in the light most favorable to the judgment, as we must (People v. Johnson (1980) 26 Cal.3d 557, 576-578; Jackson v. Virginia (1979) 443 U.S. 307, 318-319), the evidence presented at trial in support of the burglary counts was as follows.

Around 8:50 a.m. on November 10, 2003, Heather Steinbeck left her Kiner Avenue home in San Jose with her son and daughter to take her son to school. She left the front door unlocked when she left, and she and her daughter did not return home until after they had run an errand. Upon their return, they played in the family room for 30 to 45 minutes. Then, when Steinbeck went into her bedroom, she noticed that her drawers were open, things were disheveled, a $100 bill was missing from one drawer, and there were dirty footprints on the rugs in her room and in another bedroom. After calling her husband and determining that he had not done this, Steinbeck took her daughter to her neighbors house and called the police. She made the police report around 1:00 p.m., and the police talked to her later that afternoon.

Around noon on November 10, 2003, Carlos Ruiz was working in the backyard of his Husted Avenue home, a few blocks from Steinbecks home, when he heard his doorbell ring. He went into his den and looked out his kitchen window to see who was at the door. He saw a young man standing on his front porch who he did not recognize. Ruiz then heard a bathroom window at the back of his house rattling. He went through the backyard to the side of his house where the bathroom windows are and noticed that a previously closed side gate was open. He returned to his den and saw defendant walking by the den outside, toward the front of the house.

Ruiz picked up a bowie knife in his den, went to the backyard and picked up a hatchet, then went through the open side gate to the front yard. He confronted defendant and the young man he had seen earlier on his front porch and told them to leave. When they did, Ruiz followed them for three to four blocks while reporting the incident to the police on his cell phone. He lost sight of defendant and the young man after they turned a corner.

Ruiz returned home. Around 15 to 20 minutes later, an officer arrived and told Ruiz that he had two suspects down the street and that he wanted to know if Ruiz could identify them as the men Ruiz saw in his yard. Ruiz went to the location, which was less than one half mile away, and positively identified the two men. One of the men was defendant, and the other was a juvenile.

Officers searched defendant and the juvenile. They found a $100 bill, a $5 bill, and two $1 bills in the juveniles right front pocket. They found a pair of black mittens with a Loft label in defendants red backpack. Both the shoes worn by the juvenile and those worn by defendant had some residue of dirt or mud on them.

An officer later asked Steinbeck whether she was missing any black mittens. Steinbeck determined that the mittens which matched a black scarf from Ann Taylor Loft that she still had were missing from one of her bedroom drawers. She identified the mittens found in appellants red backpack as those mittens.

On the day before trial, San Jose Police Officer Brett Linden brought evidence from the police department evidence warehouse to the courtroom to show to the prosecutor and defense counsel. Defendant was in the courtroom with his counsel. When they were examining the black mittens, the officer commented that they looked like something his daughters would wear. Defendant said that the mittens were his. When they were examining a piece of paper with womens names and phone numbers that they had taken out of the red backpack, defendant said that those were the phone numbers of hot girls.

Based on this evidence, the jury found defendant guilty of burglary and attempted burglary ( 664, 459, 460, subd. (a)). The court sentenced defendant to the middle term of four years for the burglary, with a concurrent term of two years for the attempted burglary and a concurrent term of two years for the failure to appear.

DISCUSSION

CALCRIM No. 376

The trial court instructed the jury, without apparent objection from defendant, with language from 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 burglary 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 burglary. [] 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 burglary. [] 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.

Defendant contends that the instruction unconstitutionally reduced the prosecutions burden of proof by requiring only slight corroboration. He acknowledges that this contention was rejected as to CALJIC No. 2.15, the earlier comparable instruction, by the appellate court in People v. Snyder (2003) 112 Cal.App.4th 1200, 1225-1228. In that case the court held that CALJIC No. 2.15 does not create an improper presumption of guilt arising from the mere fact of possession of stolen property, or reduce the prosecutions burden of proof to a lesser standard than beyond a reasonable doubt. Rather, the instruction relates a contrary proposition: a burglary . . . may not be presumed from mere possession unless the commission of the offense is corroborated. [Citation.] The inference permitted by CALJIC No. 2.15 is permissive, not mandatory. 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 prosecutions burden of proving every element of the offense, or otherwise violate the accusers 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. [Citations.] (People v. Snyder, supra, 112 Cal.App.4th at p. 1226.)

CALJIC No. 2.15 has withstood numerous other constitutional challenges in the appellate courts of this state. (See, e.g., People v. Prieto (2003) 30 Cal.4th 226, 248-249, People v. Holt (1997) 15 Cal.4th 619, 676-677; People v. Johnson (1993) 6 Cal.4th 1, 36-38; People v. Williams (2000) 79 Cal.App.4th 1157, 1173-1174.) Nevertheless, defendant insists that federal cases support his position. (See United States v. Gray (5th Cir. 1980) 626 F.2d 494, 500; United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1255-1256; United States v. Durrive (7th Cir. 1990) 902 F.2d 1221, 1229, fn. 6.) We disagree with this contention. The cases defendant relies on dealt with a conspiracy instruction, not an instruction on possession of recently stolen property.

In our view, CALCRIM No. 376, like CALJIC No. 2.15 correctly prohibits the jury from drawing an inference of guilt solely from conscious possession of recently stolen property but properly permits the jury to draw such an inference where there is additional corroborating evidence. As long as the corroborating evidence together with the conscious possession 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 prosecutions burden of proof or implicates a defendants right to due process. (People v. Williams, supra, 79 Cal.App.4th at p. 1173.)

Failure to Appear

Defendant contends, and the Attorney General concedes, that the evidence is insufficient to support defendants conviction for violating section 1320.5. We find the concession appropriate.

Section 1320.5 states in pertinent part: Every person who is charged with or convicted of the commission of a felony, who is released from custody on bail, and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony. . . . Willful failure to appear within 14 days of the date assigned for appearance may be found to have been for the purpose of evading the process of the court.

In order to prove defendants alleged violation of section 1320.5, the prosecutor submitted the following documents: (1) the felony complaint in this case filed November 13, 2003 (exhibit No. 19A); (2) a bail bond for defendant from Aladdin Bail Bonds issued on November 20, 2003 (exhibit No. 19B); and (3) a superior court minute order for November 15, 2004 (exhibit No. 19C). The November 15, 2004 minute order indicates that defendant did not appear in court, that his OR status was revoked, and that a bench warrant issued.

Defendant contends and the Attorney General correctly concedes that this evidence failed to prove that defendant was still out of custody on bail at the time he failed to appear in court on November 15, 2004, because Exhibit 19C specifically states that [defendant] was on OR on the date of the hearing in question, November 15, 2004. (See Evid. Code, 664; Estate of Crabtree (1992) 4 Cal.App.4th 1119, 1125 [presumption that court clerk accurately recorded the order of the court].) The Attorney General also correctly concedes that defendant may not be retried for that offense (U.S. Const., 5th Amend.; Cal. Const., art. I, 15). Nor may defendant be tried for violating section 1320, the related offense of failing to appear while out of custody on his own recognizance. (See Kellett v. Superior Court (1966) 63 Cal.2d 822, 827.)

The trial court sentenced defendant to the concurrent term of two years for his conviction on count 3 of violating section 1320.5. Under the circumstances, we will reverse the conviction on count 3, order the abstract of judgment modified by striking the concurrent sentence imposed for that count, and affirm the judgment as so modified.[2]

DISPOSITION

The conviction on count 3 for violating section 1320.5 is reversed. The judgment is modified by striking the concurrent sentence imposed on count 3. As so modified, the judgment is affirmed. The superior court is ordered to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections.

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Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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MIHARA, J.

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duffy, J.

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[1]Further statutory references are to the Penal Code unless otherwise specified.

[2]As we have reversed defendants conviction on count three with prejudice, we need not address defendants remaining contentions relating to that count.