SERIES 300 EVIDENCE
F 376 NOTES
TABLE OF CONTENTS
F 376 Note 1 Burden Of Proof
F 376 Note 2 Possession: Agreement To Purchase Not Sufficient
F 376 Note 3 False Explanation Of Possession Of Stolen Property Sufficient To Sustain Finding Of Theft
F 376 Note 4 Possession Of Property: Slight Corroboration Requirement Violates Due Process
F 376 Note 5 Possession: Insufficient To Show Guilt As To Related Non-Larcenous Offense
F 376 Note 6 Knowing Possession: Definition Of Possession Required
F 376 Note 7 Objection By Defendant Precludes Instruction Which Benefits Defendant
F 376 Note 8 Possession Of Recently Stolen Property: “Recently Stolen“ As Imprecise And Inconsistent With The Prosecution’s Burden Of Proof
F 376 Note 9 Recently Stolen Property Inference Improper In Non-Theft Cases
F 376 Note 10 Challenge To CC 376 As Duplicative Of Circumstantial Evidence Instruction
F 376 Note 11 Possession Of Property: Applicability To Felony Murder Special Circumstances [PC 190.2(a)(17)]
F 376 Note 12 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence
F 376 Note 13 No Sua Sponte Duty To Instruct On Recent Possession Of Stolen Property
Return to Series 300 Table of Contents.
F 376 Note 1 Burden Of Proof
The defendant‘s possession of recently stolen property is not relevant unless he or she did so knowingly. Hence, the jury‘s finding of knowledge may be governed by EC 403. (See e.g., FORECITE F 319 Inst 1 and CAVEATS therein.)
F 376 Note 2 Possession: Agreement To Purchase Not Sufficient
An agreement or contract to purchase property is not alone sufficient to establish constructive possession. (See FORECITE F 2302.6 Inst 3.)
[RESEARCH NOTE: See FORECITE BIBLIO 2.15.]
CALJIC NOTE: See FORECITE F 2.15 n2.
F 376 Note 3 False Explanation Of Possession Of Stolen Property Sufficient To Sustain Finding Of Theft
See Wright v. West (1992) 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.
(See also FORECITE F 103.4 Inst 4.)
[RESEARCH NOTE: See FORECITE BIBLIO 2.15.]
CALJIC NOTE: See FORECITE F 2.15 n4.
F 376 Note 4 Possession Of Property: Slight Corroboration Requirement Violates Due Process
In People v. Anderson (1989) 210 CA3d 414, the Court of Appeal held that CJ 2.15 (now CC 376) 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 (1994) 28 CA4th 1386, 1400-01 [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.
[RESEARCH NOTE: See FORECITE BIBLIO 2.15.]
CALJIC NOTE: See FORECITE F 2.15 n6.
F 376 Note 5 Possession: Insufficient To Show Guilt As To Related Non-Larcenous Offense
In People v. Van Nguyen (1993) 21 CA4th 518, 538-39, 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.]
CALJIC NOTE: See FORECITE F 2.15 n7.
F 376 Note 6 Knowing Possession: Definition Of Possession Required
CALCRIM 376 informs the jury that an inference of guilt may be drawn, provided there is other slight corroboration of guilt, based upon the defendant‘s knowing 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. (See e.g., People v. Zyduck (1969) 270 CA2d 334, 335 [“possession must be established before the inference of guilty knowledge can be drawn ….” ]; see also, People v. Smith (1954) 128 CA2d 706, 709.)
CALJIC NOTE: See FORECITE F 2.15 n8.
F 376 Note 7 Objection By Defendant Precludes Instruction Which Benefits Defendant
See FORECITE F 376 Inst 14.
F 376 Note 8 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.)
CALJIC NOTE: See FORECITE F 2.15 n10.
F 376 Note 9 Recently Stolen Property Inference Improper In Nontheft Cases
People v. Barker (2001) 91 CA4th 1166, held that the giving of CJ 2.15 (CC 376) 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, 248-49 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.)
Therefore, CC 376 should not be given in non-theft cases.
CALJIC NOTE: See FORECITE F 2.15 n11.
F 376 Note 10 Challenge To CC 376 As Duplicative Of Circumstantial Evidence Instruction
For a potential challenge to CALCRIM 376 on the basis that it is merely a restatement of the general circumstantial evidence instruction, see FORECITE PG VII(C)(9.1).
CALJIC NOTE: See FORECITE F 2.15 n12.
F 376 Note 11 Possession Of Property: Applicability To Felony Murder Special Circumstances (PC 190.2(a)(17)
People v. Harden (2003) 110 CA4th 848 held that CC 376 may properly be applied to the theft related elements of a felony murder special circumstance per PC 190.2(a)(17).
CALJIC NOTE: See FORECITE F 2.15 n13.
F 376 Note 12 Instruction On Consciousness Of Guilt Inference Improper Without Supporting Evidence
(See FORECITE PG VII(C)(7.1).)
F 376 Note 13 No Sua Sponte Duty To Instruct On Recent Possession Of Stolen Property
There is no sua sponte duty to instruct the jury that “a fact or cluster of facts is not, without more, substantial evidence of guilt. . . .” (People v. Najera (2008) 43 C4th 1132, 1139 [CJ 2.15 re: possession of stolen property].) However, Najera did recognize that there may be an innocent explanation for the defendant’s possession of the property.
The real criminal … may have artfully placed the article in the possession or on the premises of an innocent person, the better to conceal his own guilt; or it may have been thrown away by the felon in his flight, and found by the possessor, or have been taken from him in order to restore it to the true owner, or otherwise have come lawfully into his possession. . . . [Citations.] In this case, defendant’s possession of the recently stolen vehicle, while circumstantial evidence that he intended to deprive the owner of the vehicle, did not, in itself, eliminate the possibility of an innocent explanation for defendant’s presence behind the wheel of a car he did not own. (People v. Najera (2008) 43 C4th 1132, 1138; see also People v. Holt (1997) 15 C4th 619, 677 [an inference [of guilt based solely on possession of recently stolen property would be “unwarranted”].)
Instructions which identify the shortcomings of such possession evidence may be “helpful in various circumstances. . . .” (People v. Najera (2008) 43 C4th 1132, 1139.) Therefore, it may be appropriate to give requested instructions which inform the jury that a fact or cluster of facts, without more, is not substantial evidence of guilt under the ordinary legal rules set forth elsewhere in the instructions.
