F 2.15

F 2.15 n1 Possession Of Property: Improper Pinpoint Instruction.

CJ 2.15 improperly pinpoints the prosecution’s evidence. Therefore, the defense should be able to argue that against giving it to the jury on the same basis that defense instructions are routinely rejected. (See FORECITE F 2.03 n8.)

People v. Harden (2003) 110 CA4th 848, 857 upheld the instruction on the basis that CJ 2.15, if properly worded “would inure to the defendant’s benefit because it would warn the jury not to infer the existence of the element of robbery or burglary of a special circumstance allegation from the defendant’s conscious possession of recently stolen property, without corroborating evidence.” (See also People v. Snyder (2003) 112 CA4th 1200 [CJ 2.15 is designed “partly as a prophylactic in favor of the accused,” since it admonishes the jury of “the well-established principle that evidence of possession of recently stolen property, standing alone, will not support a conviction for a theft crime”].)

However, even if the instruction does benefit the defense, this is not a proper basis upon which to overrule a defense objection to the instruction. To the contrary, as the beneficiary of the instruction, the defense has a long-established right to preclude such instructions for tactical reasons. (See PG VI(C)(1.1).)

[Research Note: See FORECITE BIBLIO 2.15]

F 2.15 n2 Possession: Agreement To Purchase Not Sufficient.

An agreement or contract to purchase property is not alone sufficient to establish constructive possession. (See FORECITE F 1.24a.)

[Research Note: See FORECITE BIBLIO 2.15]

F 2.15 n3 Recent Possession As A Preliminary Fact To Be Proved By The Prosecution.

In People v. Anderson (89) 210 CA3d 414, 422 [258 CR 482], the court concluded that “it is for the jury to conclude what time period qualifies as ‘recent’.” Therefore, since the relevance of the defendant’s possession of the property depends upon the jury’s determination that the possession was in fact “recent” EC 403(c) may be relied upon to require the jury to find this preliminary fact before considering the evidence. (See FORECITE F 2.001a.)

See FORECITE F 2.15g and F 2.15h.

[Research Note: See FORECITE BIBLIO 2.15]

F 2.15 n4 False Explanation Of Possession Of Stolen Property Sufficient To Sustain Finding Of Theft.

See Wright v. West (92) 505 US 277 [120 LEd2d 225, 240-41; 112 SCt 2482] [falsely explained possession of recently stolen property is sufficient to sustain a finding that the possessor took the property].

However, there remain issues as to whether the record must contain other objective evidence and/or whether the defendant’s explanation must be inherently implausible. (See U.S. v. Martinez (9th Cir. 1975) 514 F2d 334, 341;U.S. v. Stauffer (9th Cir. 1990) 922 F2d 508, 515.) [Additional briefing on these issues is available to FORECITE subscribers. Ask for Brief Bank # B-753.]

(See also FORECITE F 2.90b.)

[Research Note: See FORECITE BIBLIO 2.15]

F 2.15 n5 Federal Constitutional Challenge To CJ 2.15.

In People v. Gamble (94) 22 CA4th 446, 453 [27 CR2d 451] and People v. Anderson (89) 210 CA3d 414, 420-32 [258 CR 482], the court rejected the defendant’s argument that CJ 2.15 should not be given in a robbery case because it only shows the defendant’s “knowledge of the tainted nature of the property” and because it violates due process by lessening the prosecution’s burden of proof. (See also People v. Esquivel (94) 28 CA4th 1386, 1400-01 [34 CR2d 324] [no rational basis argument rejected under the facts presented].) However, there are at least two issues which these Court of Appeal opinions did not address regarding these arguments.

a. Inference Of Theft As To Opposed To Robbery. As to the propriety of CJ 2.15 in a robbery case, the Gamble Court of Appeal correctly observed that as to theft crimes CJ 2.15 “by its very language permits the jury in a proper case to infer the identity of defendant as the one who committed the crime.” (Gamble 22 CA4th at 453.) However, in a case where the nature of the crime is at issue (e.g., whether it is a theft or a robbery), the language of CJ 2.15, unless modified per FORECITE F 2.15a, improperly allows the jury to utilize the defendant’s possession of the stolen property to resolve the factual question of whether the crime was a theft or a robbery. The defendant’s possession of the property is no more probative of a robbery than a theft. (See e.g. FORECITE F 2.06a: consciousness of guilt evidence not relevant to the degree or nature of the crime.)

b. Possession Of Property: “Slight Corroboration” Requirement Violates Due Process. Neither Gamble or Anderson addressed the question of whether the slight corroboration requirement violates due process. [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-600.] Moreover, unless CJ 2.01 is also given, CJ 2.15 violates due process by allowing the jury to rely on an essential inference which has not itself been proven beyond a reasonable doubt. (See People v. Gonzales (90) 218 CA3d 403, 414 [267 CR 138]; see also FORECITE PG VII(C).)

In material part, CJ 2.15 allows a jury to convict the defendant of theft when his possession of stolen property is combined with “slight” corroborating evidence of his participation in the theft. Use of the term “slight” renders the instruction constitutionally defective.

United States v. Gray (5th Cir. 1980) 626 F2d 494 establishes this conclusion. In Gray, the trial court first instructed the jury that “‘slight evidence’” of a defendant’s participation in a conspiracy would suffice for conviction. (Id., at p. 500.) After a defense objection to this instruction, the court then instructed the jury that “‘as to that slight or little evidence, you must be convinced, beyond a reasonable doubt, that he participated.’” (Ibid.) In holding the foregoing instructions to be unconstitutional, the Court of Appeals reasoned that “[t]he ‘slight evidence’ reference can only be seen as suffocating the ‘reasonable doubt’ reference.” (Ibid.)

The identical analysis applies to CJ 2.15. By using the term “slight,” the instruction manifestly tells the jury that guilt may be inferred on the basis of evidence which does not rise to the standard of proof beyond a reasonable doubt. Thus, per se reversal is required whenever the instruction is used. (Sullivan v. Louisiana (93) 508 US 275, 279-281 [124 LEd2d 182; 113 SCt 2078] [an instructional error which misadvises the jury regarding the reasonable doubt standard compels reversal per se].)

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-754.]

c. Improper Presumption Based On Insufficient Foundational Facts. People v. Holt (97) 15 C4th 619, 676-77 [63 CR2d 782] concluded that CJ 2.15 is not constitutionally invalid by permitting an inference or presumption based on insufficient foundational facts. (See also People v. Johnson (93) 6 C4th 1, 36-38 [23 CR2d 593].)

NOTE: The federal issues specifically rejected by Gamble, Anderson, and Holt should be preserved in state court for review on habeas corpus.

[Research Note: See FORECITE BIBLIO 2.15]

F 2.15 n6 Possession Of Property: Slight Corroboration Requirement Violates Due Process.

In People v. Anderson (89) 210 CA3d 414 [258 CR 482], the Court of Appeal held that CJ 2.15 did not violate the federal constitution by creating an improper presumption of guilt from the defendant’s possession of the stolen property. (See also People v. Esquivel (94) 28 CA4th 1386, 1400-01 [34 CR2d 324] [no rational basis argument rejected under the facts presented].) The Anderson court also rejected the defendant’s argument that the instruction lightened the prosecution’s burden of proof beyond a reasonable doubt in stating that corroborating evidence need not be sufficient to establish guilt in and of itself. (Anderson 210 CA3d at 430.) However, the Anderson court did not address the question of whether only requiring “slight” corroboration allows the jury to draw an inference of guilt without a rational basis in violation of federal due process principles.

See FORECITE 2.15g and F 2.15h.

[Research Note: See FORECITE BIBLIO 2.15]

F 2.15 n7 Possession: Insufficient To Show Guilt As To Related Non-Larcenous Offense.

In People v. Van Nguyen (93) 21 CA4th 518, 538-39 [26 CR2d 323], the defendants were charged with both robbery and accessory to a sexual assault committed by one of the co-defendant’s during the robbery. The court held the defendants’ mere possession of the property which they stole in the robbery was not sufficient to make them accessories in the unforeseen sexual assault.

[Research Note: See FORECITE BIBLIO 2.15]

F 2.15 n8 Conscious Possession: Definition Of Possession Required.

CJ 2.15 informs the jury that an inference of guilt may be drawn, provided there is other slight corroboration of guilt, based upon the defendant’s “conscious possession” of recently stolen property. Since this inference is predicated upon the defendant’s possession of the property, the jury should be instructed upon the definition of possession per CJ 1.24 and FORECITE F 1.24, et seq. (See e.g., People v. Zyduck (69) 270 CA2d 334, 335 [75 CR 616] [“possession must be established before the inference of guilty knowledge can be drawn ….”]; see also, People v. Smith (54) 128 CA2d 706, 709 [275 P2d 919].)

F 2.15 n9 Objection By Defendant Precludes Instruction Which Benefits Defendant.

People v. Holt (97) 15 C4th 619 [63 CR2d 782] concluded that “where identity of a perpetrator is in dispute or sought to be proved by circumstantial evidence, (CJ 2.15) protects the defendant from unwarranted inferences of guilt based solely on possession of property stolen in the charged offense.” Accordingly, since the instruction, as interpreted by the California Supreme Court, benefits the defendant, the defense should have the option of waiving this benefit and precluding instruction on CJ 2.15. A criminal defendant may waive rights that exist for his or her own benefit. (See Cowan v. Superior Court (96) 14 C4th 367, 371 [58 CR2d 458]; see also People v. Mendoza (2000) 24 C4th 130, 176 [99 CR2d 485, 515-516] [CJ 2.15 is, in general, favorable to defendant].) People v. Yeoman (2003) 31 C4th 93, 131 [CJ 2.15 benefits the defense by informing the jury that conscious possession of recently stolen property is insufficient, without corroboration, to sustain a conviction].) “Permitting waiver…. is consistent with the solicitude shown by modern jurisprudence to the defendant’s prerogative to waive the most crucial of rights.” (People v. Robertson (89) 48 C3d 18, 61 [255 CR 631]; see also Cowan, supra, 14 C3d 371]; see also CC 3513 [party may waive right that exists for the party’s benefit].) Hence, even though it has been held that CJ 2.15 must be given sua sponte (see People v. Clark(53) 122 CA2d 342, 346 [265 P2d 43]), when the defendant specifically objects to the instruction it should not be given since the instruction is for the defendant’s benefit. (See also FORECITE F 2.03 n9.) The party who benefits from a cautionary or limiting instruction may object to the instruction for tactical reasons. (See also FORECITE PG VI(C)(1.1).)

“A reasonable attorney may . . . tactically conclude[] that the risk of a limiting instruction … outweigh[s] the questionable benefits such instruction would provide.” (People v. Maury (2003) 30 C4th 342, 394; see also People v. Hernandez (2004) 33 C4th 1040, 1053 [“defense counsel might reasonably have concluded it best if the court did not explain how the evidence could be used”]; In re Seaton (2004) 34 C4th 193, 200, n. 3 [trial counsel’s tactical decisions are accorded great deference]; People v. Hawkins (1995) 10 Cal.4th 920, 942.)

F 2.15 n10 Possession Of Recently Stolen Property: “Recently Stolen” As Imprecise And Inconsistent With The Prosecution’s Burden Of Proof.

(See People v. Davis DEPUBLISHED (12/17/99, D030958) 76 CA4th 1347, 1363 [91 CR2d 179].)

F 2.15 n11 Recently Stolen Property Inference Improper In Nontheft Cases.

People v. Barker (2001) 91 CA4th 1166 [111 CR2d 403], held that the giving of CJ 2.15 permitting guilty verdict for murder based on finding of possession of stolen property and slight corroborative evidence was error. “…[C]onscious possession of recently stolen property simply does not lead naturally and logically to the conclusion the defendant committed a murder to obtain the property… [I]nclusion of [a] non-theft related offense in CALJIC No. 2.15 [is] was error.” (Barker, 111 CR2d at 410.) The court reached this issue even though the defendant did not object to the giving of the instruction below, because his “claim . . . is [essentially] that the instruction is not ‘correct in law’ and that it violated his right to due process of law[,] the claim . . . is not of the type that must be preserved by objection. [Citations.]” (Id. at 408.)

In People v. Prieto (2003) 30 C4th 226 [133 CR2d 18] the Supreme Court found Barker to be “persuasive” and agreed that use of CJ 2.15 in nontheft cases is improper. (See also People v. Harden (2003) 110 CA4th 848.)

F 2.15 n12 Challenge To CJ 2.15 As Duplicative Of Circumstantial Evidence Instruction.

For a potential challenge to CJ 2.15 on the basis that it is merely a restatement of the general circumstantial evidence instruction, see FORECITE PG VII(C)(9.1).

F 2.15 n13 Possession Of Property: Applicability To Felony Murder Special Circumstances (PC 190.2(a)(17).

People v. Harden (2003) 110 CA4th 848held that CJ 2.15 may properly be applied to the theft related elements of a felony murder special circumstance per PC 190.2(a)(17).

F 2.15 n14 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence.

(See FORECITE PG VII(C)(7.1).)

F 2.15 n15 Sua Sponte Duty To Instruct On Recent Possession Of Stolen Property

See FORECITE F 3428 Note 1.

F 2.15a

Possession Of Property:

Impermissible To Infer Robbery Rather Than Theft

*To be added at end of CJ 2.15 (1989 Revision):

You may not infer from the defendant’s conscious possession of the stolen property that the improper acquisition of the property was affected through robbery rather than theft.

Points and Authorities

CJ 2.15 may be misleading when the defendant is charged with both theft and robbery, or where theft may be considered a lesser included offense of robbery. For example, if the instruction refers only to the robbery, it could erroneously imply that possession of the stolen property raised an inference that the defendant was guilty of robbery rather than theft.

In People v. Lang (89) 49 C3d 991, 1024 [264 CR 386], the Supreme Court addressed this issue but found no error because there was no request for clarifying or amplifying language and because the defendant would have been more likely to make false statements about the more serious offense of robbery rather than theft. (Id. at 1024-25; but see dissent at 1058.)

However, in a case where the jury is asked to infer guilt from the fact of possession of the stolen property, there is no basis to infer that the property was a product of a robbery rather than a theft. Accordingly, upon request, CJ 2.15 should be modified or supplemented to assure that the jury is not led to believe that possession of the stolen property is more indicative of a robbery than a theft.

14th Amendment due process principles are implicated when the jury is permitted to draw an inference despite the lack of a rational connection between the evidence and the inference. (See FORECITE PG VII(C)(7).)

F 2.15b

Possession Of Recently Stolen Property

Must Be “Unexplained”

*Add to CJ 2.15:

However, no inference of guilt may be made from the defendant’s conscious possession of recently stolen property when such possession was satisfactorily explained. If you have a reasonable doubt as to whether or not the possession was satisfactorily explained, you may not infer guilt based solely upon the defendant’s possession of the property and the existence of slight corroboration. Rather, guilt must be proved beyond a reasonable doubt by evidence other than the defendant’s possession of the property.

However, no inference of guilt may be made from the defendant’s conscious possession of recently stolen property when such possession was satisfactorily explained. To be satisfactory, the explanation need only leave you with a reasonable doubt as to whether or not the defendant came into possession of the property by criminal means. If you have such a reasonable doubt as to whether or not the possession was satisfactorily explained, you may not infer guilt based solely upon the defendant’s possession of the property and the existence of slight corroboration.

Points and Authorities

CALJIC 2.15 misstates the common law permissive inference of guilt of theft from possession of recently stolen property by removing the requirement that such possession must be unexplained. (See People v. McFarland (62) 58 C2d 748, 755 [26 CR 473]; Barnes v. U.S. (73) 412 US 837, 845 [37 LEd2d 380; 93 SCt 2357].) However, it is well established that the rule in California is: …”Possession 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. This rule is applied where the accused is found in possession of the articles soon after they were stolen.” (People v. McFarland, supra, at 754, emphasis supplied, citing People v. Lyons (58) 50 C2d 245, 258 [324 P2d 556].)

Moreover, removal of the explanation factor, coupled with the failure to inform the jury that the inference does not apply unless the prosecution proves the lack of a satisfactory explanation beyond a reasonable doubt, unconstitutionally shifts the burden of proof to the defendant in violation the Due Process clause of the 14th amendment. (See People v. Mayberry (75) 15 C3d 143, 157 [125 CR 745] [error not to give requested instruction that defendant only required to raise a reasonable doubt as to whether he had bona fide belief in consent to sexual intercourse]; see also People v. Hardy (48) 33 C2d 52, 64-65 [198 P2d 865] [defendant need only go forward with evidence sufficient to raise a doubt].) For example, the current CALJIC instruction permits the jury to completely ignore any explanation for the possession–no matter how plausible or compelling–and convict the defendant based solely upon his or her “conscious possession” of the property and “slight corroborating evidence.” Such a result would violate settled constitutional issues on two scores. First, by making possession and slight corroboration a “sole and sufficient basis for finding guilt” even if the possession was satisfactorily explained, the instruction offers an improper shortcut to conviction by failing to tell the jury that it could be dispelled by other evidence adduced in the case. (See County Court of Ulster County v. Allen (79) 442 US 140, 187 [60 LEd2d 777; 99 SCt 2213] [“As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the [‘more likely than not’] test described in Leary.”].) Second, conscious possession which is satisfactorily explained does not provide a rational basis for concluding that the defendant “more likely than not committed the crime.” “[A] criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend. [fn omitted].” (Leary v. U.S. (69) 395 US 6, 36 [23 LEd2d 57; 89 SCt 1532]; see also, County Court of Ulster County at 165-66 and Hanna v. Riveland (9th Cir. 1996) 87 F3d 1034.) In sum, the judicially created presumption embodied in CJ 2.15 (which should be subjected to no less scrutiny than a statutory presumption (see U.S. v. Gainey (65) 380 US 63, 66-67 [13 LEd2d 658; 85 SCt 754]) is unconstitutional without supplementation such as set forth above which informs the jury that guilt cannot be founded upon the inference alone unless it has been proven beyond a reasonable doubt that there was no satisfactory explanation for the possession.

Approval of the current version of CJ 2.15 in People v. Anderson (89) 210 CA3d 414, 425-32 [258 CR 482], does not preclude the above modification of CJ 2.15 because those cases and People v. Holt (97) 15 C4th 619, 676-77 [63 CR2d 782], did not consider the question of whether the possession must be unexplained. (See People v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390]; People v. Superior Court (Marks) (91) 1 C4th 56, 65-66 [2 CR2d 389]; Santa Clara County Local Transportation Authority v. Guardino (95) 11 C4th 220, 243 [45 CR2d 207] [cases are not authority for matters not considered].) Second, Anderson fails to recognize, as explained above, that even a permissive inference can be constitutionally infirm if it permits the jury to use an evidentiary shortcut to conviction which does not require the prosecution to prove beyond a reasonable doubt the existence of those facts which are necessary to rationally connect the inference with the defendant’s guilt–i.e., that the possession was not satisfactorily explained. Third, Anderson characterizes “guilty knowledge” as the inference (Anderson, at 431) whereas CJ 2.15 permits an inference ofguilt. [See Brief Bank # B-705 for additional briefing on this issue.]

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]

F 2.15c

Prosecution Must Prove That Property Was Stolen

And In Possession Of Defendant

*Add at the end of CJ 2.15 add:

You may not consider defendant’s alleged possession of the property for any purpose unless you find beyond a reasonable doubt that:

1. The property was stolen, and

2. The defendant consciously possessed the property.

If you have a reasonable doubt as to either of these requirements, you must give the defendant the benefit of the doubt and not consider, for any purpose, defendant’s alleged possession of the property.

Points and Authorities

The federal constitutional rights to trial by jury and due process (6th and 14th Amendments) require the prosecution to prove every essential element of the offense beyond a reasonable doubt. Thus, when the jury is required to draw an essential inference from circumstantial evidence, it must find beyond a reasonable doubt that the facts upon which the inference is predicated have been proven. (See People v. Carter (57) 48 C2d 737, 758-61 [312 P2d 665]; see also People v. Watson (56) 46 C2d 818, 831 [299 P2d 243]; People v. Gonzales (90) 218 CA3d 403, 414 [267 CR 138]; see also CJ 2.01.) Accordingly, before the jury may rely upon the defendant’s possession of stolen property to infer that the defendant took the property, the jury must determine beyond a reasonable doubt that the defendant was in possession of the property and that the property was stolen. (See People v. Morris (88) 46 C3d 1, 40-41 [249 CR 119] [error to give unqualified instruction on the effect of recent possession of stolen property when the evidence was conflicting or unclear that the defendant was either in possession of stolen property or that the property possessed was in fact stolen]; see also FORECITE F 2.15 n3; but see People v. Williams (2000) 79 CA4th 1157, 1171-74 [94 CR2d 727] [jury could be instructed with current version of CALJIC 2.15 even when evidence relating to possession of recently stolen property is conflicting, as current version of instruction does not mislead the jury into thinking that the fact of possession has already been determined, distinguishing People v. Morris.) Hence, the above instruction is necessary to assure that the jury understands this requirement. (Even in cases where CJ 2.01 is also given, the above instruction is necessary if the defendant’s possession of the stolen property is a theory of the defense which the defense wishes to pinpoint.) (See generally, FORECITE PG III(A).)

CAVEAT: This instruction is designed for use when there is a factual issue as to whether the defendant actually possessed stolen property. If there is no such factual issue, the defense will probably not want to request CJ 2.15.

[For a sample form instruction for use in any situation involving inferences, see Model Crim. Jury Instructions, (8th Cir. 1992) § 4.13. A copy of this instruction with the Committee comments is available to FORECITE subscribers. Ask for Instruction Bank # I-857.]

F 2.15d

Lack Of Possession As Evidence To Negate Guilt

*Add to CJ 2.15:

Where the crime is of a type in which physical evidence is normally possessed by those who commit it, the fact that the defendant did not possess such evidence may be considered in determining whether [he] [she] is guilty.

Points and Authorities

Where a crime is of a type in which physical evidence is normally possessed by those who commit it, a search which fails to uncover such evidence may be considered in determining whether the person searched is guilty of the offense. (See U.S. v. Van Fossen (4th Cir. 1972) 460 F2d 38, 41.)

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

F 2.15e

Conscious Possession: Consideration Of Intoxication

And/Or Mental Impairment

*Add to CJ 2.15 when appropriate:

“Conscious possession” within the meaning of this instruction requires the following:

1. The defendant had either actual or constructive possession of stolen property;

2. The defendant had actual knowledge of [his] [her] possession of the property; and

3. The defendant had actual knowledge that the property was stolen.

In determining whether these elements were satisfied, you should consider any physical or mental impairments which may have been affecting the defendant, including intoxication; impairment of mental faculities through mental disease, defect or disorder; impairment of physical faculties and/or physical trauma.

Points and Authorities

“Conscious possession” requires both knowledge of the nature of the item possessed and knowledge that the item is possessed. (See People v. Brooks (65) 234 CA2d 662, 670 [44 CR 661]; see also, People v. Collin (65) 232 CA2d 681, 684 [43 CR 57].) Although these cases involve “conscious possession” of narcotics, the same elements should apply to “conscious possession” of stolen property. (See e.g., Rollins v. Superior Court (63) 223 CA2d 219, 222 [35 CR 734] [no conscious possession where defendant did not know he possessed the property].)

Accordingly, since the possession must be knowing, any factors, such as intoxication, which could impair the defendant’s perception, should be considered by the jury. (See People v. Bryson (67) 257 CA2d 201, 210 [64 CR 706] [no showing of “conscious possession” of stolen property due to intoxication].)

NOTES

For specific instructions regarding the impact of impaired mental or physical faculties, see CJ 3.32, CJ 3.37, CJ 4.21, FORECITE F 3.32, et seq., FORECITE F 4.21, et seq. and FORECITE F 4.010a [Physical Trauma May Negate Mens Rea Evidence].

This instruction should be given with other instructions defining actual and constructive possession. (See FORECITE F 2.15 n8.)

F 2.15f

Possession Of Stolen Property Not Alone Sufficient

To Sustain Finding Of Theft Or Burglary

*Add to CJ 2.15 as follows:

Unexplained possession of recently stolen property is not alone sufficient to convict the defendant of [theft] [burglary] [_____.]

You may not convict the defendant of [theft] [burglary] [_____] unless there is additional evidence above and beyond the defendant’s possession of the stolen property which, when considered with all the other evidence, convinces you beyond a reasonable doubt that the defendant is guilty of [theft] [burglary] [_____].

Points and Authorities

People v. Harris (58) 163 CA2d 470, 473-4 [329 P2d 557]; see also People v. Citrino (56) 46 C2d 284, 288 [294 P2d 32]; In re G. (81) 120 CA3d 218, 227 [174 CR 557]; People v. Clark (53) 122 CA2d 342, 346 [265 P2d 43] [unexplained possession alone is insufficient to support a conviction for burglary].)

F 2.15g

Possession Of Recently Stolen Property:

“Recently” Is A Relative Term

* Supplement CJ 2.15 as set forth below:

SAMPLE INSTRUCTION # 1:

The term ‘recently’ is a relative term that has no fixed meaning. The longer the period of time since the property was stolen, the more doubtful the inference of knowledge becomes.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS – CRIMINAL 3.14 [Possession Of Stolen Property- Inference] && 2 (1999).]

SAMPLE INSTRUCTION # 2:

The term ‘recently’ is a relative term. Whether property may be considered as recently stolen depends upon the nature of the property, and all of the facts and circumstances of the case.

[See Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also Alexander, MAINE JURY INSTRUCTIONS MANUAL 6-44 [Instruction 45-Exclusive Possession Inference: Burglary-Theft] (Lexis, 1999).]

SAMPLE INSTRUCTION # 3:

The term ‘recently’ is a relative term that has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property and all the facts and circumstances shown by the evidence in the case. The shorter the period between the theft and the possession, the stronger the inference becomes. Conversely, the longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from the unexplained possession.

[See Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also NEW JERSEY MODEL JURY CHARGES – CRIMINAL Chap. 20 [Offenses Against Property: Supplemental Charge on Theft] 5/28/80 && 5 (New Jersey ICLE 4th ed. 1997).]

SAMPLE INSTRUCTION # 4:

The term ‘recently’ is a relative term, and has no fixed meaning. Whether property may be considered as recently-stolen depends upon the nature of the property and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft, the more doubtful becomes the inference which may be drawn from unexplained possession.

[See Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also Thomas v. State (TE 1971) 463 SW2d 687, 688; TENNESSEE PATTERN INSTRUCTIONS – CRIMINAL, T.P.I.- Crim 42.20 [Inference From Possession Of Stolen Property] (West, 4th ed. 2000).]

SAMPLE INSTRUCTION # 5:

The term ‘recently’ is a relative term. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.

[See Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also VIRGINIA MODEL JURY INSTRUCTIONS – CRIMINAL 36.300, comment [Larceny-Possession Interferences] && 2 (Lexis, 2000).]

SAMPLE INSTRUCTION # 6:

The word ‘recently’ does not mean a set time, but it is an important word. The longer the time between the theft and the evidence of possession, the more doubtful it is that possessing the property shows that the defendant [knew it was stolen] [was the person who stole it].

[See Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 3.06, [Inference From the Possession Of Recently Stolen Property] para. 3 (Bar Association of the District of Columbia, 4th ed. 1993).]

SAMPLE INSTRUCTION # 7:

The word “recently,” as used in these instructions, is a relative term, and it has no fixed meaning. Whether property may be considered as recently stolen depends upon all the facts and circumstances shown by the evidence. The longer the period of time since the theft of the property, the more doubtful becomes the inference which may reasonably be drawn from its unexplained or unsatisfactorily explained possession.

[Source: Pendergrast v. United States (DC Cir.1969) 416 F2d 776, 790-91.]

RATIONALE: An important component of the inference that a person in possession of stolen property was that the property was “recently” stolen. (People v. Anderson (89) 210 CA3d 414, 421 [258 CR 482].) For example, a common inference that is suggested to contradict the inference that the defendant was the thief is that the property was innocently obtained from another. The reasonableness of such a contrary inference would depend upon the nature of the property BB i.e., how quickly and easily it could be sold BB and other circumstances bearing on whether the theft of the property was so recent that the defendant could not have innocently obtained it from the actual thief. Accordingly, it may be appropriate to instruct the jury on this point.

POINTS AND AUTHORITIES:

The term “recently,” as in recently stolen property, … is “a relative term, depending very substantially upon the circumstances of the particular case for its meaning.” (U.S. v. Wolfenbarger (6th Cir.1970) 426 F2d 992, 995.) “No definite time can be fixed as to when, as a matter of law, possession is or is not recent.” (VIRGINIA MODEL JURY INSTRUCTIONS – CRIMINAL 36.300, comment [Larceny-Possession Interferences] (Lexis, 2000); see also Wilborne v. Commonwealth(VA 1943) 28 SE2d 1; U.S. v. Johnson (6th Cir. 1984) 741 F2d 854, 857.)

A major factor in determining the meaning of “recently” is the type of goods possessed. If the goods are unique and hard to dispose of, “recently” can mean a longer period of time than if the goods are ordinarily and easily sold. (United States v. Gordo, (5th Cir. 1970) 421 F2d 1068, 1073; United States v. Baxa (7th Cir. 1965) 340 F2d 259, 261.)Another major factor is the interval between the theft and the defendant’s possession. The longer the period of time between the theft and the proof of possession, the weaker the inference is. (People v. Anderson, 210 CA3d at 421; see also United States v. Coggins (DC Cir. 1970) 433 F2d 1357, 1362; United States v. Wolfenbarger, 426 F2d at 995; Pendergrast v. United States (DC Cir.1969) 416 F2d 776, 790.)