P. v. Najera 1/24/06 CA4/1

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2006 » P. v. Najera 1/24/06 CA4/1

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D046044

Case Date: 04/26/2006

Preview:Filed 1/24/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JESSE NAJERA, Defendant and Appellant.

D046044

(Super. Ct. No. SCN181843)

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Boyce & Schaefer and Laura G. Schaefer for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

Michael Jesse Najera was convicted of vehicle theft and possession of burglary tools. He was sentenced to four years in prison. Najera appeals, arguing the trial court

erred in failing to instruct sua sponte in the terms of CALJIC No. 2.15. That instruction states the possession of recently stolen property is alone insufficient to support a conviction of a theft-related offense; however, any corroborating evidence need only be slight and need not be sufficient itself to prove guilt. We depart here from the rule laid down in People v. Clark (1953) 122 Cal.App.2d 342 and conclude the trial court was not required to give CALJIC No. 2.15 sua sponte. FACTS On the evening of July 21, 2004, Joseph Donato parked his car in front of his apartment complex. The following morning the car was gone. Donato reported the theft to police. Shortly after midnight on July 23 Officer Tim Reiley saw Donato's car and stopped it. Appellant was driving the car and his sister Erica was in the passenger seat. The police searched the occupants and discovered three keys in Erica's pocket. The keys had been altered or "shaved" to bypass a vehicle ignition system. There was a shaved key in the car's ignition, as well as a second key showing some signs of alteration on the same key ring. Officer Reiley inspected the ignition and discovered it had no visible damage but was very loose and seemed to be damaged internally. Officer Reiley was able to start the vehicle by inserting a flathead screwdriver into the ignition. At the police station a further search of Erica's purse revealed items that were later identified as belonging to Donato. Appellant did not have anything belonging to Donato in his possession.

2

DISCUSSION Citing People v. Clark, supra, 122 Cal.App.2d 342, appellant argues the trial court was required to instruct sua sponte in the terms of CALJIC No. 2.15. The instruction states in part: "If you find that a defendant was in [conscious] possession of recently [stolen] [extorted] property, the fact of that possession is not by itself sufficient to permit an inference that the defendant ____ is guilty of the crime of ____. 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."1 CALJIC No. 2.15 also lists examples of evidence that may corroborate the defendant's guilt, such as the attributes of possession, opportunity to commit the crime, the defendant's conduct or statements, or any other evidence tending to connect the defendant with the crime. A. Procedural Background At trial, the prosecutor presented testimony from the victim and two police officers who arrested appellant. The prosecutor also introduced as exhibits the three shaved keys found in Erica's pocket, the shaved keys in the ignition, the shaved key on the key ring and a gaming card belonging to the victim that Erica had in her purse. Appellant offered no witnesses or exhibits. In closing argument, appellant's attorney argued the circumstances could be reasonably interpreted in a manner consistent with appellant's innocence.

3

Following the close of evidence, neither party requested the judge give CALJIC No. 2.15. The judge instructed the jury on the presumption of innocence and the prosecutor's burden of proof as well as the elements of the charged offenses. The court also gave CALJIC Nos. 2.00 and 2.02, defining circumstantial and direct evidence and instructing that the jury was required to adopt any reasonable inferences in favor of appellant's innocence that could be drawn from the circumstantial evidence. B. General Duty to Instruct Sua Sponte The oft-repeated general rule is that even without a request, the trial court must instruct on the " ' ''general principles of law relevant to the issues raised by the evidence." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) Courts have taken the term "general principles" to mean "those principles of law closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." (Ibid.) The broad question raised by this rule is what types of principles are necessary for the jury to understand a case. The answer is found not in some general rubric but in the policy considerations that support the giving of sua sponte instructions, statutory and decisional requirements for the giving of such instruction and, in the case of a particular instruction, any countervailing interests arguing against a sua sponte requirement.

1 Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 376 incorporates this language. 4

With this in mind we review the requirement that CALJIC No. 2.15 be given sua sponte. C. People v. Clark and People v. Smith Respectfully, the case authority requiring CALJIC No. 2.15 be given sua sponte is less than compelling. Appellant refers us to the use note following CALJIC No. 2.15. It states: "An appropriate instruction that unexplained possession of recently stolen property will not alone support a conviction of burglary must be given sua sponte." (Use Note to CALJIC No. 2.15 (Oct. 2005 ed.) p. 46.) The use note cites People v. Clark, supra, 122 Cal.App.2d 342.2 The Clark opinion does not analyze why CALJIC No. 2.15 must be given sua sponte. It is notable that in Clark the Attorney General conceded that the trial court erred in failing to give the instruction, so there is no consideration or analysis of opposing arguments. (People v. Clark, supra, 122 Cal.App.2d at p. 346.) Moreover, the Clark opinion attributed the sua sponte rule to People v. Smith (1950) 98 Cal.App.2d 723, stating Smith "undoubtedly held that the failure of the trial court to give such an instruction sua sponte was error." (Ibid.) This conclusion is, however, suspect. In Smith, a typewriter was found to be missing from a county office and was recovered the following day when the defendant offered it for sale at a tavern. (People v. Smith, supra, 98 Cal.App.2d at p. 724.) The defendant was charged with burglary, but

2 CJER Mandatory Criminal Jury Instructions Handbook (CJER 13th ed. 2004) also requires this instruction sua sponte in section 2.97(d). CJER categorizes the instruction

5

not theft. The trial court informed the jury that " 'the method by which the People undertake to prove [burglary] is by showing from their testimony that this typewriter was in that building at a certain time, and that thereafter was in the defendant's possession, was sold by him, at least disposed of, and under the various circumstances shown in the evidence of this case. It is up to the jury to determine whether or not the defendant entered this building with the intent of stealing, committing larceny.' " (Id. at p. 729.) The defendant appealed his conviction and the Court of Appeal affirmed. We note that Smith did not involve the trial court's failure to instruct on applicable legal principles that were necessary for the jury's proper consideration of the case. Rather, the case concerned an instruction that improperly suggested the jury could rely on circumstantial evidence of possession in a manner contrary to existing law. The instruction failed to communicate to the jury the evidentiary significance of the defendant's possession of the stolen typewriter. (People v. Smith, supra, 98 Cal.App.2d at p. 730.) The Court of Appeal concluded the trial court should have instructed the jury that possession of stolen property is one circumstance to consider in deciding whether the defendant had the specific intent to steal the typewriter. Further, the jury should have been informed that the possession must be corroborated by circumstances tending to show the defendant's guilt. (Ibid.)

as a miscellaneous burglary instruction and cites People v. Clark, supra, 122 Cal.App.2d 342. 6

An incorrect instruction raises entirely different legal issues than a failure to instruct where required, and there is no indication the Smith court intended to reach factual scenarios other than a trial court's failure to give an accurate instruction. Contrary to the Clark court's summary conclusion that an instruction is required sua sponte, we think Smith stands for the limited principle that once it decides to instruct the jury on the significance of possession of stolen property, the trial court must give a complete instruction that fairly states the permissible uses of the evidence. We therefore disagree with the Clark court's extension of Smith's holding to require a sua sponte instruction on recently stolen property in all theft-related cases. Accordingly, we conclude the court in Clark incorrectly attributed a sua sponte instructional requirement to Smith. In addition to citing the use note to CALJIC No. 2.15 and the Clark decision, appellant also points to People v. McFarland (1962) 58 Cal.2d 748 to demonstrate CALJIC No. 2.15 must be given sua sponte. However, McFarland offers no support for appellant's argument. In McFarland, the jury was fully instructed that mere possession of stolen property must be corroborated by other inculpatory circumstances to justify a guilty verdict. (Id. at pp. 758-759.) The Supreme Court upheld the instruction as a correct statement of the law. (Id. at p. 759.) Nothing in the holding suggests courts must always give such an instruction in a theft-related case. The court did not rely upon, or address, the Clark and Smith decisions. Only an overbroad interpretation of McFarland's legal significance would compel us to hold that since the instruction approved in McFarland was legally correct, it must be given sua sponte in all theft-related cases. 7

We conclude there is no compelling legal precedent supporting the rule that CALJIC No. 2.15 must be given sua sponte. In our view, whether CALJIC No. 2.15 must be given sua sponte has never been fully analyzed by the courts. We turn next to the general principles concerning sua sponte jury instructions to determine whether CALJIC No. 2.15 is the kind of instruction that should be given on the court's own motion in all theft-related cases. C. Sua Sponte Jury Instructions In general, the purpose of instructing jurors is to inform them of the applicable law so they may reach a fair verdict. Because jurors must understand such important and sometimes esoteric legal concepts as the presumption of innocence and the burden of proof, California has determined that trial courts have an independent duty to instruct the jury sua sponte on the general principles of law closely and openly connected with the facts of the case and necessary for the jury's understanding of the case. (People v. Cavitt (2004) 33 Cal.4th 187, 204.) However, in determining whether an instruction must be given sua sponte, the interest in informing the jury of all pertinent legal issues is balanced against the burden a sua sponte duty places on the trial court, the desire to preserve counsel's ability to make tactical decisions and to avoid sharp practices. Thus the sua sponte rule not only ensures the jury is properly educated in the law, but also acts as a shield against inadequate counsel who fails to request an instruction on an essential requirement. (See People v. Malgren (1983) 139 Cal.App.3d 234, 241; People v. Crawford (1968) 259 Cal.App.2d 874, 877.) Courts have also long noted the difficulty of requiring the trial judge to 8

anticipate defendants' legal arguments and have expressed concern that " 'the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly.' " (People v. Crawford, supra, 259 Cal.App.2d at p. 877.) Such a rule would put trial courts under unreasonable pressure to review the record for remotely tenable legal theories on which to instruct the jury. (Id. at p. 878.) Other policy considerations may weigh against according sua sponte status to an instruction. Insistence on sua sponte instructions hampers the tactical choices of defense attorneys by depriving counsel of the opportunity to decide which legal issues should be emphasized. (People v. Chapman (1968) 261 Cal.App.2d 149, 174.) In some instances, counsel might prefer to forego a particular instruction rather than draw the jury's attention to unfavorable evidence. (See People v. Carter (2003) 30 Cal.4th 1166, 1198.) Thus, while requiring instructions sua sponte may protect some defendants from their attorney's oversight, other defense attorneys may find their reasonable tactical choices undercut by the requirement an instruction be given sua sponte. We also note direction as to what instructions must be given sua sponte has come from several sources. The Legislature has decided that as a matter of policy sua sponte instruction may be required. Thus, jurors must be instructed concerning their role and the way they are to approach their task. (Pen. Code,

Download P. v. Najera 1/24/06 CA4/1.pdf