Brief Bank # B-705 (Re: F 2.15b [Possession Of Recently Stolen Property Must Be “Unexplained”].)
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Argument and Authorities
CALJIC NO. 2.15, AS GIVEN IN THIS CASE, PERMITTED THE JURY TO FIND MR. DOE GUILTY OF RECEIVING STOLEN PROPERTY FROM EVIDENCE INSUFFICIENT TO CONSTITUTE PROOF BEYOND A REASONABLE DOUBT IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.
A. Instructions Given by the Court
The court gave CALJIC No. 2.15, with a modification to the second paragraph:
Conscious possession of recently stolen property is not by itself sufficient to permit an inference that the defendant is guilty of the crime of 496 Penal Code. 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.
As corroboration, you may consider [the attributes of possession — time, place, and manner,] [that the defendant had an opportunity to commit the crime charged,] [the defendant’s conduct, his false or contradictory statements, if any] [and] [or] [other statements he may have made with reference to the property] [a false account which you find to be false of how he acquired possession of the stolen property] [any other evidence which tends to connect the defendant with the crime charged]. (CT 105, modification indicated by strike through deleted and underlining added material.)
Earlier, the court had given, at the request of the defense, an instruction that “unexplained possession of recently stolen property will not alone support a conviction of burglary.” (CT 98) The defense had also requested that 2.15 not be given on the basis that Mr. Doe’s possession was not recent, then offered a modified version when evidence was adduced that the date on the receipt was within a few days of the Cascade burglary. (RT 810-81 1.)
Two arguments were made in support of Mr. Doe’s instruction proposed in lieu of CALJIC No. 2.15. [Footnote 1] One was that CALJIC No. 2.15, which does not contain the modification “and unexplained” in the first paragraph, thereby misstates the common-law permissive inference of theft from possession of recently stolen property. The second was that failure to instruct the jury with the modification as requested allows the jury to draw an impermissible inference of guilt without sufficient basis in fact in violation of his Sixth Amendment right to have each element of the offense of receiving stolen property found by the jury beyond a reasonable doubt and his Fourteenth Amendment right to Due Process of Law.
Irrespective of counsel’s proposed modification, this Honorable Court has the power to “review any instruction given, refused, or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (§ 1259.) Consequently, if it appears that neither the trial court’s instruction nor the defense modification was a correct statement of the law and the instruction actually given was prejudicial to the defendant, this court must reverse the judgment.
B. The Instruction Given to the Jury Did Not Correctly State The Law as to When Guilt May be Inferred From Recent Possession of Stolen Property.
The first paragraph of CALJIC No. 2.15 purports to set out a longstanding common law presumption. (See Use Notes to CALJIC No. 2.15, citing People v. McFarland (1962) 58 Cal.2d 748, 755 and People v. Reynolds (1957) 149 Cal.App.2d 290, 294.) 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 p. 754, emphasis supplied, citing People v. Lyons (1 958) 50 Cal.2d 245, 258.)
The great weight of authority in other jurisdictions recognizes that an inference of guilt is permissible when recently stolen property is found in the conscious possession of a defendant and the possession is not explained. (People v. McFarland, supra, at p. 757, emphasis supplied.)
The nature of the common law presumption or inference of guilt from unsatisfactorily explained possession of recently stolen property received constitutional imprimatur in Barnes v. United States (1 973) 412 U.S. 837. There, the High Court stated:
In the present case we deal with a traditional common-law inference rooted deeply in our law…. This longstanding and consistent judicial approval of the instruction, reflecting accumulated common experience, provides strong indication that the instruction comports with due process.
This impressive historical basis, however, is not in itself sufficient to establish the instruction’s constitutionality. Commonlaw inferences, like their statutory counterparts, must satisfy due process standards in light of present-day experience. In the present case the challenged instruction only permitted the inference of guilt from unexplained possession of stolen property. The evidence established that petitioner possessed recently stolen Treasury checks payable to persons he did not know, and it provided no plausible explanation for such possession consistent with innocence. On the basis of this evidence alone common sense and experience tells us that petitioner must have known or been aware of the probability that the checks were stolen. Such evidence was clearly sufficient to enable the jury to find beyond a reasonable doubt that petitioner knew the checks were stolen. Since the inference thus satisfies the reasonable doubt standard, the most stringent standard the Court has applied in judging permissive criminal law inferences, we conclude that it satisfies the requirements of due process. (Id., at pp. 843-845, emphasis in original, footnotes and citations omitted.)
Here, in giving CALJIC No. 2.15, the only reference made to any explanation by defendant was that if such explanation were found to be false it, inter alia, would corroborate an inference of guilt from recent possession of stolen property. In other words, the corroboration necessary to make the inference from possession of recently stolen property could come from slightly suspicious circumstances regardless of the plausibility of any explanation. By omitting any other reference to a defendant’s explanation, whether satisfactory, unsatisfactory, or otherwise, CALJIC No. 2.15 does not comport with the established California and common law rule. The instruction given misstated the law, and it was error for the court to give the instruction.
C. CALJIC No. 2,15, as Given in this Case, Violated the Sixth and Fourteenth Amendment Guarantees of Due Process of Law by Allowing the Jury to Find Guilt Beyond a Reasonable Doubt Without Adequate Basis in Fact and By Shifting to Mr. Doe the Burden of Proving his Innocence.
There are other and perhaps more serious problems with the court’s modified version of CALJIC No. 2.15. As is apparent from the United States Supreme Court’s emphasis in Barnes, supra, CALJIC No. 2.15, by omitting the qualifying phrase “unexplained,” removes an important prerequisite to the presumption or inference which may be drawn by the jury and leaves the jurors with at least a permissive inference of guilt arising from mere possession of recently stolen property and “corroborating evidence tending to prove defendant’s guilt” which “need only be slight,” such as “the attributes of time, place and manner[,] . . . opportunity[,] . . . the defendant’s conduct or other statements he may have made with respect to the property, and any other evidence which tends to connect the defendant with the crime charged.”
Due process is denied when the court instructs the jury that it can infer that a defendant is guilty of receiving stolen property from evidence that does not rationally permit that finding under the circumstances of the particular case. (Virgin Islands v. Torres (1958) 161 F.Supp. 699 [entering judgment N.O.V. of acquittal on defendant’s conviction of receiving stolen property, in accordance with statute, for being in unexplained possession of property which could reasonably be suspected of being stolen; e.g., a bicycle]; Barnes, supra, at pp. 844-845; County Court of Ulster County, New York v. Allen (1979) 442 U.S. 140, 157 (hereafter cited as Ulster County Court); Leary v. United States (1969) 395 U.S. 6, 33-34 (hereafter cited as Leary), quoting Tot v. United States (1943) 319 U.S. 463, 467-468 (hereafter cited as Tot).) The Tot test is stated in Leary as follows:
The Court, relying upon a prior decision in a civil case, held that the “controlling” test for determining the validity of a statutory presumption was “that there be a rational connection between the facts proved and the fact presumed.” The Court stated:
“Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption cannot be created upon a view of relation broader than that a jury might take in a specific case. But where an inference is so strained as not to have a reasonable relation to the circumstances of life as we know them, it is not competent for the legislature to create it as a rule governing the procedure of courts.” (Leary, supra, at pp. 33-34, internal citations omitted.)
Here, we deal with a judicially-crafted presumption or permissive inference, to be given to the trier of fact in the trial court’s sound discretion. (Barnes, supra, 412 U.S. at p. 845, fn. 8.) Nevertheless, the fact that the Legislature with its ability to investigate the vagaries of common experience has not enacted such an inference militates against rather than for reasonableness (See, e.g., United States v. Gainey (1965) 380 U.S. 63, 66-67), [Footnote 2] thus this reviewing court is obliged to carefully examine same.
Such careful examination makes it plain that permitting the jury to reach a finding of guilt from recent possession of stolen property corroborated by slightly suspicious circumstances regardless of the defendant’s explanation thereof violates the Tot rule. As applied here, “slight” evidence of opportunity or motive, [Footnote 3] coupled with the fact that Mr. Doe admittedly obtained the property a few days after it was reported stolen, would be sufficient evidence to permit the jury to return a verdict of receiving stolen property with actual knowledge that it was stolen. It is perfectly possible for a former employee, however disgruntled, to purchase property owned by a company from which he was fired at a flea market and not have reason to believe it was stolen. Unquestionably, he will be suspected of having stolen it. As demonstrated by Detective Murray, who requested a list of recently discharged disgruntled employees from the victim, this is just good police work, based upon reasonable suspicion, and luckily enough, Murray found the property on the first try, slightly corroborating his premise. (RT 603-604.) CALJIC 2.15 told Mr. Doe’s jury that such is sufficient to sustain conviction of possession of stolen property even though Mr. Doe explained that he purchased the property at a flea market.
However, whether proof of recent possession plus corroborated “slight” suspicion is adequate to support a conviction of receiving stolen property is not just a matter of good police work. It is a matter of the sufficiency of proof of each element of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 320 [rejecting contention that “mere modicum” of evidence could by itself rationally support a conviction beyond a reasonable doubt]; People v. Johnson (1980) 26 Cal.3d 557, 576-578 [conviction must be supported by substantial evidence deemed such in light of the record as a whole].)
One need only contrast the elements of the crime with the proof adduced in this case. The elements of the crime of receiving stolen property are receipt or withholding of property by the defendant and the defendant’s actual knowledge, at the time of receipt or withholding, that such property was stolen. (CALJIC No. 14.65) While such knowledge may be inferred from lack of circumspection by a defendant in purchasing the property at a reduced price, or lack of responsibility on the part of the person from whom the defendant assertedly purchased the property, there still must be actual knowledge that the property was stolen. (People v. Rossi (1936) 15 Cal.App.2d 180, 183-184.) At the very least, the defendant ‘must have known” at the time he committed the act of receiving, concealing or withholding that the property was stolen; in other words, the circumstances surrounding acquisition, concealment, or withholding must compel a defendant’s belief that the property was stolen. (People v. Wielograf (1980) 1 01 Cal.App.3d 488, 493, at f n. 1; Williams v. Superior Court (1978) 81 Cal.App.3d 330, 343-344.) Oftentimes, the circumstances of acquisition of stolen property are within the purview of the defendant; hence the conclusion he “must have known” comes easily when he offers no evidence or explanation of the circumstances surrounding his acquisition of recently stolen property. (Barnes v. United States, supra, 412 U.S. at pp. 844845; cf. People v. Hardy (1948) 33 Cal.2d 52, 64-65.) Thus the jury is allowed to presume or “infer” guilt from such a case.
However, any permissive presumption “must not, under the guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed.” (United States v. Bowen (3d Cir. 1969) 414 F.2d 1268, 1274-1275, quoting Mobile J.& K.C.R.R. Co. v. Turnipseed (1910) 219 U.S. 35, 43.) The right to present adefense is the right to raise a reasonable doubt as to guilt; the defendant is not burdened with establishing that he or she is innocent by a preponderance of the evidence. The defendant’s “burden is merely to go forward with the evidence to the extent necessary to raise a doubt.” (Govt. of the Virgin Is. v. Smith (3d Cir. 1960) 278 F.2d 169, 173-174, citing and quoting from People v. Hardy, supra, 33 Cal.2d 52, at pp. 64-65; see also People v. Mayberry (1975) 15 Cal.3d 143, 157 [error not to give requested instruction that defendant only required to raise a reasonable doubt as to whether he had bona fide, reasonable belief in consent to sexual intercourse]; People v. Williams (1971) 22 Cal.App.3d 34, 57 [in light of evidence of defendant’s psychomotor epilepsy jurors should have been instructed that if they found beyond a reasonable doubt that if defendant acted as if he were conscious, a rebuttable presumption arose that he was conscious, as to which defendant had the burden of raising a reasonable doubt]; CALJIC no. 9.58.)
To satisfy the reasonable doubt standard commensurate with the defendant’s right to present a defense, therefore, any instruction to the jury on the presumption or inference of guilt from possession of recently stolen property must cause it to vanish if the defendant reasonably explains the circumstances of possession or gives evidence of innocent acquisitions. [Footnote 4] Otherwise, in applying the presumption or inference, the jury has the option to ignore entirely the defendant’s evidence of innocent acquisition and find him or her guilty on possession of recently stolen property plus facts not rising above mere suspicion, facts that the jury would find insufficient to support a burglary or theft verdict. So instructed, furthermore, the jury also has the option to reject testimony offering a plausible explanation of the defendant’s possession of recently stolen property on the basis that although reasonable such explanation is less likely than not; a “likely story,” in common parlance. Neither of these options accord with longstanding legal principles. [Footnote 5] So instructing the jury, moreover, does little other than encourage compromise” verdicts [Footnote 6] in multiple count cases where receiving stolen property is charged as an alternative to burglary, robbery, or theft. This is especially so where, as here, the jury is also instructed in accordance with People v. Clark (1953) 122 Cal.App.2d 122 Cal.App.2d 342 that “unexplained possession of recently stolen property will not alone support a conviction of burglary.” So charged, the jury’s finding of guilt of receiving stolen property ensues automatically if the jury cannot agree on whether the defendant obtained the property in the first place by burglary yet the evidence shows the defendant possessed the property under slightly suspicious circumstances soon after it was stolen. Undoubtedly, this is what happened here.
No substitute for an instruction that the inference of guilt arising from possession vanishes on Mr. Doe’s innocent explanation of possession is to be found in the instructions given here. The court’s charge did not tell the jury that it should consider all the circumstances or evidence, including defense evidence, before making a presumption or inference of guilt from slightly corroborated recent possession of stolen property. Nor was the jury charged with the rule that the burden of proof on Mr. Doe respecting evidence as to which he had the burden of production was merely to raise a reasonable doubt. Thus, even when viewed in context of the other instructions given the jury, the trial court’s version of CALJIC No. 2.15 was not only misleading, it unconstitutionally placed the burden of proof as to innocence on Mr. Doe as well.
People v. Anderson (1989) 210 Cal.App.3d 414, which comes to the opposite conclusion regarding appellant’s contentions, is analytically flawed on at least three material grounds. First, the opinion assumes (perhaps from the defendant’s alleged concession to that effect, see id., at p. 431) that CALJIC No. 2.15 comports with the common-law statement of the permissible inference, citing McFarland; comparison with McFarland itself has demonstrated the contrary. Second, Anderson deems the presumption permissive and thus unoffending of constitutional standards. This is an overly simplistic approach since, as has been demonstrated, even a permissive inference may deemed constitutionally infirm if it offers an evidentially insufficient shortcut to conviction by failing to tell the jury that it is dispelled by other evidence adduced in the case. (Ulster County Court, supra, 442 U.S. at p. 187 [“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.”].) Third, Anderson characterizes “guilty knowledge” as the inference (id., at p. 431), whereas CALJIC No. 2.15 itself permits an inference of guilt. Thus, Anderson approves CALJIC No. 2.15 despite the fact that it sanctions an overbroad inference which permits the jury to find guilt on the sole basis that a defendant found in recent possession under slightly suspicious circumstances should have known as a reasonable person that the property was stolen. This inference of consciousness of guilt is in violation of Morissette v. United States (1 952) 342 U.S. 246, which holds that a conclusive presumption of intent to steal cannot be raised from mere act of taking property under circumstances where a reasonable person should have concluded such taking was unauthorized. (Compare CALJIC No. 2.15 with CALJIC No. 14.65.)
Consequently, Anderson should not be followed, and this court must find it manifest constitutional error to give CALJIC No. 2.15, as modified, under the present circumstances.
D. The Error was Prejudicial, and Reversal is Required
Turning to whether the error engendered by the court’s misinstruction requires reversal of Mr. Doe’s conviction, the harmless error standard to be applied to the taint of an unconstitutional burden-shifting jury instruction is whether it appears “‘beyond a reasonable doubt that the that the error complained of did not contribute to the verdict obtained.”‘ (Yeats v. Evatt (1991) 500 U.S. 391, 402, quoting Chapman v. California (1967) 386 U.S. 18, 24.) This does not require that the jury be totally unaware of the erroneous instruction; it “is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yeats v. Evatt, supra, at p. 403.)
This finding first requires the reviewing court to ask what evidence the jury actually considered in reaching its verdict. In so doing, the court looks to the instructions as well as the evidence, with the usual “presumption that jurors follow instructions and, specifically, they consider relevant evidence on a point in issue when told they may do so.” (Ibid.) The second analytical requirement here is that the court assess “whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption. It is only when the effect of the presumption is comparatively minimal to this degree that it can be said, in Chapman’s words, that the presumption did not contribute to the verdict rendered.” (Id., at p. 404.) Also, the Court continued, it should be “kept in mind when reviewing erroneous presumptions for harmless error. . . [that] . . . the terms of some presumptions so narrow the juror’s focus as to leave it questionable whether a reasonable juror would look to anything but the evidence establishing the predicate fact in order to infer the fact presumed. When applying a harmless-error analysis in presumption cases, therefore, it is crucial to ascertain from the trial court’s instructions that the jurors, as reasonable persons, would have considered the entire trial record, before looking to that record to assess the significance of the erroneous presumption.”
As demonstrated above, the trial court’s instructions in the case at bar would have narrowed a reasonable juror’s perspective to where he or she would not have properly considered crucial and material evidence. For example, the jurors, as reasonable people instructed by the trial court in terms of CALJIC No. 2.15 possibly would not have considered whether Mr. Doe’s explanation was sufficient to raise a reasonable doubt before looking to other, slightly corroborative evidence in the case to establish guilt from Mr. Doe’s admittedly recent possession of Cascade’s stolen equipment. They could simply ignore such explanation altogether, or find it false on the grounds that it was less likely than not. Either way would narrow the focus of the inquiry to where nothing but the predicate facts for the presumption would be considered. When the jurors ignore the explanation, they are not considering the entire record; when they find the explanation false because more likely than not, they do not consider or likewise ignore other evidence bearing on the issue of whether Mr. Doe “must have known” from use of the equipment that it was stolen from the company he formerly worked for. [Footnote 7]
Nor was the evidence of guilt overwhelming. Here, as shown by the prosecutor’s argument, the evidence relevant to the inference of guilt of receiving stolen property, as delineated by the court’s instructions, was, with little exception, relevant to the burglary count as well. The circumstances under which the computer, other office equipment and the petty cash were taken from the Cascade premises pointed to someone in Mr. Doe’s circumstances: A recently fired, disgruntled employee with the knowledge and access necessary to enter the premises by unlocking a side door, one who would know where the petty cash was kept, who would know where one could find a crowbar to break open the filing cabinet, one who had past access to and actually used the older and less valuable computer taken, one who was resentful to the point where he or she would throw nails in the open produce bins and would be aware that thus contaminating the stored product would possibly hurt Mr. K’s reputation. These were all circumstances that not only bore on Mr. Doe’s alleged involvement in the burglary, but also on his guilt of receiving stolen property under the theory covered by the inference created by CALJIC No. 2.15 as modified. (RT 756-761)
Nevertheless, this court is precluded from giving these circumstances overwhelming weight, since the jury did not find Mr. Doe guilty of burglary beyond a reasonable doubt. Every factual inference on appeal is to be made in support of the verdict handed down by the trier of fact, in the light most favorable to the judgment, and it is highly inappropriate for the appellate court to conclude otherwise. “A reviewing court may not substitute its judgment for that of a jury.’ (People v. Ceja (1993) 4 Cal.4th 1134, 1143.)
Thus, it cannot be said beyond a reasonable doubt that the unconstitutional burden-shifting inference engendered by CALJIC No. 2.15 was unimportant when the entire record as viewed by the jury is considered, and reversal is required.
Footnote 1: Mr. Doe’ counsel requested the following instruction:
If you find that a defendant was in conscious and unexplained possession of recently [stolen[ [extorted] property, the fact of such possession is not by itself sufficient to permit an inference that the defendant Mr. Doe is guilty of the crime of receiving stolen property. 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.
As corroboration, you may consider [the attributes of possession — time, place, and manner,] [that the defendant had an opportunity to commit the crime charged,] [the defendant’s conduct, his false or contradictory statements, if any] [and] [or] [other statements he may have made with reference to the property] [a false account of how he acquired possession of the stolen property] [any other evidence which tends to connect the defendant with the crime charged].(Augmentation to Clerk’s Transcript on Appeal (CTA), at p. 1.)
Footnote 2: Gainey is notable for another reason, as it upheld a presumption of operating an illegal still stemming from presence at the still “unless the defendant explains such presence to the satisfaction of the [trier of fact].” (Id., at p. 64, fn. 2, quoting 26 U.S.C. § 5601 (b)(1).) This presumption was founded on the fact that “Congress was undoubtedly aware that manufacturers of illegal liquor are notorious for the deftness with which they locate arcane spots for plying their trade.” (Gainey, supra, at p. 67.)
Footnote 3: ‘Throughout trial, the People’s position was that the theft of the computer and other equipment from Cascade was an “inside job,” performed by a disgruntled employee who had a key to the premises and knew exactly where to go and what to take. Obviously, the jury did not give that theory sufficient weight to convict Mr. Doe of the burglary charge.
Footnote 4: Language as to when a permissive presumption vanishes must accompany instruction on a factually questionable inference that may appear to be a mandatory presumption, as such an instruction tends to dispel the possibility that the jury will so interpret it. (Ulster County Court v. Allen, supra, 442 U.S. at pp. 142, fn. 1, 160-161, at fn. 20 [asserted mandatory statutory presumption of possession of firearm in vehicle against anyone merely occupying the vehicle found permissive only on basis that charge given to jury described the presumption as “effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption and the presumption is said to disappear when such contradictory evidence is adduced.”]
Footnote 5: In deliberating, the jury must consider all the evidence before them in deciding guilt or innocence. (CALJIC No. 17.40.) The jurors are not entitled to ignore the testimony of a witness who affords them with a plausible explanation for the defendant’s possession of stolen property. They may reject such exculpatory testimony after due consideration, but they may not ignore it altogether. (Cf. People v. Feagin (1995) 34 Cal.App.4th 1427, 1434-1437 [good cause for discharging juror and substituting with alternate shown by juror’s inability to consider testimony of police officers due to prejudice].) Additionally, allowing the jury to so resolve the case runs counter to the rationale underlying the instructions on circumstantial evidence (CALJIC No. 2.01); that is, if there is a reasonable explanation of such evidence consistent with innocence, the defendant, in accord with the reasonable doubt standard, must be given the benefit of that explanation. (People v. Hatchett (1944) 63 Cal.App.2d 144, 155; see generally, 3 Witkin, Cal. Evidence (3d ed. 1986) § 1799, p. 1757.)
Footnote 6: A “compromise verdict” is defined as one reached only by the surrender of conscientious convictions as to a material issue by some members of the jury in return for relinquishment by other members of their like settled opinion on another issue, the result not commanding the approval of the whole panel. (Ballentine’s Law Dictionary (3d ed.1969) p. 236.) It is recognized that such a verdict is improper and should be set aside as subversive of trial by jury. (Ibid.; see also 59 Cal.Jur. 3d “Trial”, § 122, p. 633.)
Footnote 7: Thus the prosecutor argued that an alternate scenario under which the jury could find Mr. Doe guilty of violating section 496 of the Penal Code independent of the inference permitted by CALJIC No. 2.15 was what he did reasonably conclude on inspecting his purchase from the flea market; i.e., that it was stolen from the concern he worked for and that he “did not give it back.” It was not argued that he “must have known” that the equipment was stolen. (RT 763)