Brief Bank # B-951 (Re: F 2.15h [Possession Of Recently Stolen Property: Interplay Between Recency And Corroboration Requirement].)
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Date of Brief: September 2002.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GIVE AN INSTRUCTION THAT AS THE RECENCY OF STOLEN PROPERTY LESSENS, THE NEED FOR MORE THAN “SLIGHT CORROBORATION“ INCREASES
The trial court instructed the jury with CALJIC No. 2.15, which informed them that if they found that the appellant was in possession of “recently stolen property,”, they needed only to be convinced with “slight“ corroborating evidence in order to find appellant guilty on the charge of receiving stolen property. (CT 170.) Appellant contends that this instruction was incorrect, and that the trial court should have instructed the jury that the level of corroboration necessary was inversely proportional to the recency of the taking of the property.
People v. Anderson (1989) 210 Cal.App.3d 414, 421, recognizes that the rationale for CALJIC No. 2.15 is that “[c]atching a defendant with the goods in possession shortly after a theft rationally suggests a connection to and knowledge of the crime; while the passage of a long period between the theft and the defendant‘s possession of the stolen property weakens any inference of guilty knowledge.“ (Accord, People v. Lopez (1954) 126 Cal.App.2d 274, 278; People v. Jacobs (1925) 73 Cal.App. 334, 339.) Such a principle accords with common sense. If a person is found with property which was stolen just minutes before, it is extremely likely that he either stole the property himself, or was somehow involved in the theft. On the other hand, if the person is found with property which was stolen months earlier, the inference that he was the thief, or was involved in the theft, is much weaker.
Anderson makes the point that finding a defendant in possession of recently stolen property is so incriminating, that only slight corroborating evidence is needed to permit a determination of guilt. (Anderson, supra, 210 Cal.App.3d at p. 421.) But this reasoning only has force if the term “recently stolen property“ truly means “recently.” As the time between the theft and the discovery of the property in the defendant‘s possession lengthens, the incriminating inference lessens, and thus the strength of the necessary corroborating evidence should become greater. Clearly, where a person is found in possession of the property minutes after the theft, a lesser showing of corroborating evidence is needed to prove guilt than if the interval is two months.
In the instant case, the evidence showed that the credit cards were taken from the victim‘s possession on January 11, 2002, and they were not found in appellant‘s possession until February 3, 2002, some three weeks later. (RT 32, 38, 45, 50-51.)
It is well established that the trial court has a sua sponte duty to instruct on the “general principles of law relevant to the issues raised by the evidence.” (People v. Sedeno (1974) 10 Cal.3d 703, 715, disapproved on another point in People v. Flannel (1979) 25 Cal.3d 668, 685, fn. 12.)
A trial court is required, sua sponte, to give an instruction on the issue of “recent possession of stolen property“ where the facts raise the issue. (People v. Clark (1953) 122 Cal.App.2d 342, 346; People v. Smith (1950) 98 Cal.App.2d 723, 730.) Although CALJIC instructions can be helpful, they are not the law; they are merely attempts by ad hoc committees of judges to state the law. (People v. Alvarez (1996) 14 Cal.4th 155, 217, 223, fn. 28; McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 841.) A trial court should not simply rely on rote recitation of general form instructions, but should instead conform the instructions to the law and to the particular facts of the case before it. (People v. Thompkins (1987) 195 Cal.App.3d 244, 250; Fish v. Los Angeles Dodgers (1976) 56 Cal.App.3d 620, 642; ABA Standards for Criminal Justice, Discovery and Trial by Jury (3rd Ed. 1996) Standard 15-4.4, pp. 236-237.) Where an instruction is not correct on the law, a defendant is under no duty to request a different instruction, and his failure to do so does not amount to a waiver of the issue. (People v. Hernandez (1988) 47 Cal.3d 315, 353; People v. Renteria (2001) 93 Cal.App.4th 552, 560.)
Since CALJIC No. 2.15 did not correctly state the law on the relationship between “recency“ and “slight corroboration,” the pattern instruction should have been corrected, and failure to do so was error. Appellant contends the error was prejudicial. The standard of prejudice is that set forth in People v. Watson (1956) 46 Cal.2d 818.
The error in failing to inform the jury of the interplay between “recency“ and Aslight corroboration was prejudicial, since the case was a close one. It should be noted that when a case is close, a small degree of error should be considered enough to have influenced the jury wrongfully to have convicted a defendant. (People v. Wagner (1975) 13 Cal.3d 612, 621; Strickland v. Washington (1984) 466 U.S. 668, 699.) Factors indicating a close case include the following.
An indication of a close case is where the jury has declined to find guilt on all counts charged. (People v. Brown (1993) 17 Cal.App.4th 1389, 1398; People v. Washington (1948) 163 Cal.App.2d 833, 846; People v. Epps (1981) 122 Cal.App.3d 691, 698; United States v. Kallin (9th Cir. 1995) 50 F.3d 689.) In the instant case, the jury did not find appellant guilty on the charged offense of being under the influence of drugs. (CT 82, 210.)
A further factor indicating a close case is whether the jury requests clarification of jury instructions. (People v. Thompkins (1987) 195 Cal.App.3d 244, 250-251; People v. Day (1992) 2 Cal.App.4th 405, 420.) Here the jury requested clarification on Count 3. (CT 205.)
The facts of the case also indicate that it was a close one. Although appellant was found in possession of the victim‘s credit cards, this was some three weeks after the victim had lost them. As noted above, this long delay between the theft and the fact of possession reduced any inference that appellant knew that the credit cards were stolen. Furthermore, appellant testified to an innocent explanation as to why he was in possession of the credit cards. There was no evidence that appellant tried to hide from the police the fact that he possessed the credit cards. Therefore the jury was left with a difficult credibility determination on the issue of receiving stolen property. Where an error unreasonably favors the prosecution case, or undermines the defense case, on an issue where there is a difficult credibility determination, the error should be judged prejudicial. (People v. Ogunmola (1985) 39 Cal.3d 120, 124-125.) That is exactly what the jury instruction error did in the instant case – it undermined the defense case.
For the reasons cited above, it is submitted that the case should be considered a close one, so that any significant error should be deemed reversible error. Therefore the error in failing to give a correct instruction on the interplay between “recency“ of possession of stolen property, and the amount of corroboration needed to show guilt, was prejudicial error.