THE TRIAL COURT ERRED IN INSTRUCTING THE JURY, PURSUANT TO CALJIC NO. 2.15, THAT WHERE A PERSON IS FOUND IN POSSESSION OF RECENTLY STOLEN PROPERTY, ONLY SLIGHT CORROBORATING EVIDENCE IS SUFFICIENT TO PROVE GUILT OF RECEIVING STOLEN PROPERTY
The trial court instructed the jury according to CALJIC No. 2.15, that where a person is found in possession of recently stolen property, only slight corroboration is needed to prove guilt of the crime of receiving stolen property. (CT 170.) Appellant contends that the “slight corroboration“ aspect of the instruction is contrary to California decisional law, reduces the prosecution‘s burden of proving guilt beyond a reasonable doubt, and is tantamount to a directed verdict on the issue. Therefore the judgment of conviction of receiving stolen property must be reversed.
A. THE JURY INSTRUCTION
The trial court instructed the jury, pursuant to CALJIC No. 2.15, as follows:
If you find that a defendant was in possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant 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. (CT 170, emphasis added.)
B. THE PURPORTED JUSTIFICATION FOR THE “SLIGHT CORROBORATION“ PORTION OF CALJIC NO. 2.15 IS MERITLESS
CALJIC No. 2.15, Comment, suggests several sources for the language of the instruction, including 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988), sec. 667; People v. McFarland (1962) 58 Cal.2d 748, 755; and People v. Anderson (1989) 210 Cal.App.3d 414. As appellant will demonstrate, these citations do not provide reliable authority for the “slight corroboration“ portion of the jury instruction.
In McFarland the defendant was charged with several burglaries. When questioned about he crimes, the defendant replied that he did not want to discuss the matter, that he was already in enough trouble, and that the police could not help him. When asked whether another person had helped him with a particular burglary, he explained that his wife was not with him, and how it was possible for one person to commit that crime. The defendant asserted that he had bought various property legally, but was evasive when asked the exact source of his purchases. When asked how he could have carried an air compressor by himself, due to the weight, the defendant stated that he took it in three pieces. One of his fingerprints was found at the scene of one of the burglaries. (McFarland, supra, 58 Cal.2d at pp. 753-754.)
In discussing the jury instructions applicable to possession of recently stolen property, the high court did refer to the statement that such possession is so incriminating that only slight corroborating evidence was needed to warrant a conviction. (McFarland, supra, 58 Cal.2d at p. 754.) However immediately after this portion of the decision, the court went on the quote with approval from People v. Lyons (1958) 50 Cal.2d 245, 258, to the effect that where one is found in possession of recently stolen property, and no satisfactory explanation of the possession is made, that then an incriminating inference may be drawn. (McFarland, supra, 58 Cal.2d at p. 754.)
After summarizing various cases in both California and other jurisdictions, the McFarland court concluded that “[t]he rule may be stated as follows: Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police, gives a false explanation regarding his possession or remains silent under circumstances indicating a consciousness of guilt, an inference of guilt is permissible and it is for the jury to determine whether or not the inference should be drawn in light of all the evidence.“ (McFarland, supra, 58 Cal.2d at p. 755.) It is clear that “the rule“ according to McFarland does not state that once possession of recently stolen property is shown, there need only be “slight corroboration“ in order for guilt to be inferred.
It is true that the jury instruction used at trial in McFarland did use the phrase “[t]he corroboration of the possession of stolen property need only be slight in order to sustain a conviction.“ (McFarland, supra, 58 Cal.2d at p. 759.) However the high court did not give this instruction a ringing endorsement. The California Supreme Court concluded:
There can be no question that the instruction complained of was correct to the extent that it dealt with the incriminating effect of false explanations and statements constituting admissions, and such conduct on the part of defendant was shown to be present as to every count relating to possession except the one concerning the recently stolen toolbox, which defendant had in his possession at the same time and place as the recently stolen property involved in the other counts. In the light of the entire record, the instruction, although not worded as clearly as would have been desirable with respect to consideration of defendant‘s silence upon questioning by the police, cannot be said to have resulted in a miscarriage of justice. (McFarland, supra, 58 Cal.2d at pp. 759-760.)
It is clear that the high court did not give its imprimatur to the language in the jury instruction about “slight corroboration,” and at best reached the conclusion that although the jury instruction was lacking, in light of the record in the case before it, no prejudice was shown.
Some cases have interpreted McFarland to mean that the “slight corroboration“ language in the jury instruction is entirely proper. (E.g., People v. Anderson (1989) 210 Cal.App.3d 414, 421.) Other cases have concluded that McFarland stands for the principle that proof of conscious possession of recently stolen property simply leads to a permissible inference that the person knew the property was stolen, but that the jury must determine guilt in light of such inference as well as all of the evidence in the case. (People v. Dupre (1968) 262 Cal.App.2d 56, 59; Rollins v. Superior Court (1963) 223 Cal.App.2d 219, 222.) As outlined above, appellant contends that the Dupre/Rollins line of analysis is controlling.
The next line of authority cited in support of the “slight corroboration“ language is 2 Witkin & Epstein, Cal. Criminal Law (2d Ed. 1988), sec. 667. Witkin notes that the early rule was simply that possession of stolen property was not sufficient evidence to prove guilt, and that corroborating evidence had to be shown. (People v. Boxer (1902) 137 Cal. 562, 564.) However Witkin cites language in McFarland, supra, 58 Cal.2d at p. 755, noting that in People v. Citrino (1956) 46 Cal.2d 284, 288, the court referred to “slight corroboration.“ As noted above, although McFarland refers to Citrino it does not embrace the “slight corroboration“ language in its holding.
Furthermore, Citrino itself is not valid authority for the “slight corroboration“ portion of the rule. The language in Citrino is based upon earlier caes such as People v. Morris (1932) 124 Cal.App. 402, 404; People v. Taylor (1935) 4 Cal.App.2d 214, 217; People v. Russell (1939) 34 Cal.App. 665, 669; and People v. Thompson (1953) 120 Cal.App.2d 359, 363. (Citrino, supra, 46 Cal.2d at p. 288.) These cases do not support the conclusion that only “slight corrobration“ is necessary.
Morris relies for this language on People v. Russell (1932) 120 Cal.App. 622. Russell in turn relies upon People v. Smith (1889) 79 Cal. 554; People v. Murphy (1928) 91 Cal.App. 53; People v. Lang (1904) 142 Cal. 482; People v. Reed (1922) 58 Cal.App. 7; and People v. Howard (1922) 58 Cal.App. 340, 344. (Russell, supra, 120 Cal.App. At p. 625.)
Smith lends no support to such a conclusion. The only mention of the issue suggests that the rule in cases of burglary is that the reviewing court must consider all the evidence presented to the jury. (Smith, supra, 79 Cal. At p. 556.)
The court in Murphy relied upon Lang. (Murphy, supra, 91 Cal.App. At p. 54.) In Lang the court simply concluded that evidence of possession of recently stolen property, together with other evidence in the case, can suffice to uphold a conviction for burglary. (Lang, supra, 142 Cal. At p. 485.) There was no language about “slight corroboration“ in Lang.
In Reed the court announced the rule that the fact of possession of recently stolen property, by itself will not sustain a conviction for theft; but when there is also evidence that the possessor did not adequately explain his possession of the property, a conviction can stand. (Reed, supra, 58 Cal.App. at p. 8.) Again, there is no mention of “slight corroboration.“
In Howard, the court held that where a person is found in possession of recently stolen property, and he gives a false report about the origin of the goods, this is “presumptive evidence that he stole the goods ….“ (Howard, supra, 58 Cal.App. at p. 344.) This seems to suggest that once the prosecution has presented evidence of recent possession, plus a failure to explain the source of the goods, that the burden of proof then shifts to the defendant. This does not appear to be good law, as the burden in a criminal cases is always upon the prosecution. Be that as it may, Howard does not stand for the proposition that once possession of recently stolen property is shown, that there need only be “slight corroboration“ in order to show guilt of the taking of the goods.
Thus it can be seen that Russell and Morris do not provide support for the language in Citrino. This leaves Taylor and Thompson. Taylor relies for the “slight corroboration“ language on Russell and People v. King (1932) 122 Cal.App. 50. (Taylor, supra, 4 Cal.App.2d at p. 217.) As shown above, Russell does not support this proposition. King simply relates that possession of recently stolen property “together with guilty behavior on the part of a defendant is sufficient“ to uphold a jury verdict of guilty of a charge of theft. (King, supra, 122 Cal.App. at p. 53.) King does not spell out how much corroborating evidence is necessary to show guilt.
In Thompson the court stated that “[w]hile the mere possession of stolen property is not alone sufficient to sustain a conviction of theft, such possession plus slight corroborative evidence of other inculpatory circumstances will suffice, and where there is substantial evidence tending to support the verdict of the jury, an appellate court cannot, as a matter of law, substitute its judgment on the facts for that of the jury.“ (Thompson, supra, 120 Cal.App.2d at p. 363, citing People v. Wissenfeld (1951) 36 Cal.2d 758.)
Wissenfeld in turn relied upon a line of cases such as People v. Holland (1947) 82 Cal.App.2d 310, 312; People v. Leary (1946) 28 Cal.2d 727, 735; People v. Cataline (1921) 54 Cal.App. 36, 38; People v. Fain (1929) 100 Cal.App. 439, 440; People v. Jennerjohn (1931) 115 Cal.App. 447, 451; People v. Swanson (1932) 120 Cal.App. 173, 176; and King, supra, 122 Cal.App. at p. 53. (Wissenfeld, supra, 36 Cal. At pp. 763-764.) Without going through each case in detail, suffice it to say that the above cases either do not use the Aslight corroboration“ language, or, if they do, they rely on earlier cases which do not stand for that proposition.
It appears that the early rule on recent possession of stolen property was that it was a fact that the jury could take into consideration, and could use to make an inference that the defendant had taken the property in question (although it was insufficient, by itself, to so prove). (People v. Boxer (1902) 137 Cal. 562, 564.) Some later cases, by misconstruing the holdings of the early cases, stated that the corroborating evidence had only to be slight. As shown above, this language does not appear to be supported by the cases upon which the later cases rely. Furthermore, even if one were to presume that the “slight corroboration“ language is applicable, it is limited to the question of the quantum of evidence needed to sustain a conviction on appeal.
In the cases which utilize the “slight corroboration“ language, this is always in the context of a defendant who has challenged the sufficiency of evidence to support his theft (or burglary, or receiving stolen property) conviction. The quantum of proof necessary at trial, and to sustain a conviction on appeal, are obviously different. At trial, the prosecution must show the charge by proof beyond a reasonable doubt. On appeal, the test to determine the sufficiency of evidence to support a finding of guilt is whether, viewing the entire record in a light favorable to the judgment, a rational trier of fact could find the appellant guilty beyond a reasonable doubt of the offense of which he was convicted. (People v. Johnson (1980) 26 Cal.3d 557, 562.)
Thus when a defendant challenges his conviction on appeal, the evidentiary scales are weighted against him. Every reasonable inference which could be made from the evidence, favorable to the judgment of conviction, must be made. (Johnson, supra, 26 Cal.3d at pp. 576-578; People v. Lawler (1973) 9 Cal.3d 156, 160.) On the appeal level, the court does not retry the case using a “beyond a reasonable doubt“ standard. All the reviewing court needs to find is that, making all presumptions in favor of the conviction, there was sufficient evidence so that a rational juror could have found such proof.
It appears that the cases which mention “slight corroboration“ as a trial level standard have confused the burden of proof at the trial level, and at the appellate level. To take an example, let us choose People v. Russell (1932) 120 Cal.App. 622. In that case the defendant challenged the sufficiency of the evidence to sustain his conviction for burglary. (Id., at p. 623.) In reviewing this contention, the court noted that “when [stolen] property is found in the possession of a defendant shortly after it has been stolen the corroborating evidence required to sustain a conviction need be but slight ….“ (Id., at p. 625.) It is clear that the court meant that the rule at the appellate level is that the corroborating evidence need only be slight. But in People v. Morris (1932) 124 Cal.App. 402, 404, the court appears to confuse this appellate rule, where the level of proof to sustain a conviction is much less, with a trial level rule. This is simply incorrect.
It is instructive to compare the rule in possession of recently stolen property cases, with other permissive inferences based upon a defendant‘s conduct. Where a defendant makes a willfully false statement before trial, attempts to dissuade a witness to testify falsely, attempts to suppress evidence against himself, or flees immediately after a crime is committed, this will allow the jury to consider such conduct, along with all the other evidence presented at trial, in their determination of guilt or innocence. (CALJIC Nos. 2.03, 2.04, 2.06, 2.52.) However in none of these situations is the jury then instructed that only “slight corroboration“ is necessary in order to reach an inference of guilt. In fact, under CALJIC Nos. 2.03, 2.04, and 2.06, the jury is specifically told that the “weight and significance“ of such conduct is solely for the jury to decide. However in the situation of possession of recently stolen property, the instruction inferentially tells the jury that the weight of such evidence is for the judge to decide, in that he has explained to them that only “slight evidence“ in corroboration is necessary. Thus the jurors are limited in their ability to weigh the possession of recently stolen property evidence.
It appears that CALJIC Nos. 2.03, 2.04, and 2.06 simply act as normal inferences, which explain to the jury that if they find there is evidence of X, they may (but are not required to) make the inference of Y. In such instances, the jury is not limited to what additional evidence they may require in order to establish guilt. If the jury determines that the probative force of the inference is not great, they may well require a great deal of additional evidence. However CALJIC No. 2.15 takes away that jury discretion. The instruction tells the jury that if they find that the defendant was in possession of recently stolen property, the inference that the defendant took that property is especially strong, and the jury is then to utilize the standard of “slight corroboration“ in order to reach a finding of guilt.
Such an instruction invades the province of the jury, much in the way that a directed verdict does. Obviously, directed verdicts are prohibited in criminal cases. (People v. Figueroa (1986) 41 Cal.3d 714, 732-733.) Although CALJIC No. 2.15 does not go as far as a directed verdict, it goes a long way in that direction. CALJIC No. 2.15 directs the jury that if they find the predicate fact (possession of recently stolen property), they must accord it great weight, requiring only slight corroboration to find guilt. In the instant case, there was no dispute that appellant was found in possession of the credit cards. Therefore the use of CALJIC No. 2.15 almost directed a verdict on the count of receiving stolen property.
“[N]o fact, not even an undisputed fact, may be determined by the judge.” (Roe v. United States (5th Cir. 1961) 287 F.2d 435, 440.) As Justice Scalia pointed out in his influential concurring opinion in Carella v. California (1989) 491 U.S. 263, 265, “the problem would not be cured by an appellate court’s determination that the record unmistakably established guilt, for that would represent a finding of fact by judges, not by a jury.”
In People v. Figueroa (1986) 41 Cal.3d 714, the defendants were charged with the sale of unqualified securities in violation of Corporations Code section 25110. The trial court erred by instructing the jury that the promissory notes in question were “securities” under the Corporations Code. The California Supreme Court held that “if a judge were permitted to instruct the jury on the basis of assertedly ‘undisputed’ evidence that a particular element had been established as a matter of law, the right to a jury trial would become a hollow guarantee.” (Id., at p. 730; People v. Lawson (1986) 189 Cal.App.3d 741, 747.)
Although the judge in the instant case did not go so far as to instruct the jury that an element of the offense had been established as a matter of law, the effect of giving CALJIC No. 2.15 was almost the same. The judge told the jury that if you find that the defendant was in possession of recently stolen property (and the defendant did not dispute that he was in possession of the credit cards), then you need only find slight evidence tending to prove his guilt of receiving stolen property. This was so close to a directed verdict on this count that it should be treated as such.
For all these reasons this court should find that the use of CALJIC No. 2.15 was error under the circumstances of this case.
If the jury had been properly instructed, they would have been advised that they could consider evidence that appellant was found in possession of recently stolen property, but that they could accord that evidence (and any inference they drew from it) whatever weight they deemed proper. Under the instruction given, they were virtually directed to give the evidence tremendous weight, such that only slight additional corroborating evidence was necessary to establish guilt.
Appellant contends that reversal is required per se. In Sullivan v. Louisiana (1993) 508 U.S. 275 [124 L.Ed.2d 182] the court considered an erroneous instruction on reasonable doubt. The instruction differed from the standard reasonable doubt instruction only by informing the jury that such a doubt “must be such … as would give rise to a grave uncertainty ….“ and must be a “substantial doubt.” (Id., at p. 276, referring to the same instruction considered in Cage v. Louisiana (1990) 498 U.S. 39.) Although the court did not indicate that the offending instruction differed greatly from the standard reasonable doubt instruction, it varied enough so that it was in error. (Id., at pp. 40-41.)
In reviewing the prejudice caused by such error, the high court pointed out that the standard of “harmless beyond a reasonable doubt“ could not be utilized. (Sullivan, supra, 508 U.S. at pp. 278-279.) Since the jury did not evaluate the case using the correct standard of proof, there was no “object, so to speak, upon which harmless-error scrutiny [could] operate.“ (Id., at p. 280.) Such scrutiny is inappropriate “where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury‘s findings.“ (Id., at p. 281.)
The same principle applies in the instant case. The jury was instructed to utilize the wrong burden of proof, namely that only slight evidence of corroboration was required, once they concluded that the appellant had been found in possession of recently stolen property. Since the jury must be assumed to have followed the instruction, it follows that their determination of guilt on the receiving stolen property count was based on a misdescription of the burden of proof, vitiating all their findings on that count. Hence the error requires reversal per se.