SERIES 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
F 1750.6 Receiving Stolen Property—Defense Theories
TABLE OF CONTENTS
F 1750.6 Inst 1 Receiving Stolen Property: Pinpoint Instruction Re: Lack Of Knowledge That Property Was Stolen
F 1750.6 Inst 2 Receiving Stolen Property: Pinpoint Instruction—Knowledge Of Presence Of Property
F 1750.6 Inst 3 Receiving Stolen Property: Whether Theft And Receiving May Be Based On Wrongful Retention Of Property Originally Received Innocently
F 1750.6 Inst 4 Receiving Stolen Property: No Legal Duty To Report Crime (PC 496)
F 1750.6 Inst 5 (a-c) Presence At Scene Not Alone Sufficient
F 1750.6 Inst 6 Receiving Stolen Property: Innocent Intent Defense
F 1750.8 Receiving Stolen Property—Unanimity/Duplicity/Multiplicity
F 1750.8 Inst 1 Adaptation Of Unanimity Instruction To Multiple Counts Of Receiving Stolen Property
Return to Series 1700 Table of Contents.
F 1750.6 Inst 1 Receiving Stolen Property: Pinpoint Instruction Re: Lack Of Knowledge That Property Was Stolen
*Add to CC 1750, Element 2 [Knowledge That Property Was Stolen], as follows [CC 3400 Format]:
The defendant contends that (he/she) did know that the property (bought/received/sold/aided in selling/concealed or withheld/aided in concealing or withholding) was (stolen/obtained by extortion). The prosecution must prove that the defendant knew the property was (stolen/obtained by extortion). The defendant does not need to prove (he/she) had no knowledge the property was (stolen/obtained by extortion).
If you have a reasonable doubt about whether the defendant knew the property was(stolen/obtained by extortion), you must find (him/her) not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
F 1750.6 Inst 2 Receiving Stolen Property: Pinpoint Instruction—Knowledge Of Presence Of Property
*Add to CC 1750, Element 3 [Knowledge Of Presence Of Property], as follows [CC 3400 Format]:
The defendant contends that (he/she) did know of the presence of the property that was (stolen/obtained by extortion). The prosecution must prove that the defendant knew of the presence of the property. The defendant does not need to prove (he/she) had no knowledge of the presence of the property.
If you have a reasonable doubt about whether the defendant knew of the presence of the property, you must find (him/her) not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
Note—Intoxication and/or mental impairment may negate knowledge. (See FORECITE F 3426 Inst 5; see also CALCRIM 1750, Related Issues.)
F 1750.6 Inst 3 Receiving Stolen Property: Whether Theft And Receiving May Be Based On Wrongful Retention Of Property Originally Received Innocently
*To be added at end of CC 1750:
If you conclude that the defendant wrongfully retained property which was innocently received, [he] [she] may be convicted of theft. However, [he] [she] may not also be convicted of concealing stolen property unless [he] [she] committed subsequent acts of concealment so completely divorced from the original misappropriation as to constitute an independent course of conduct.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
No Conviction For Both Theft And Concealing Of Innocently Received Property—The rule that a defendant cannot be convicted of stealing and receiving the same property (People v. Jaramillo (1976) 16 C3d 752, 757) is also applicable to circumstances where the only evidence of theft is misappropriation of property otherwise innocently received. (People v. Moses (1990) 217 CA3d 1245, 1256.) The Moses court observed that where the wrongful retention of property makes the property “stolen,” the record must demonstrate some other wrongful detention before the retainer is further guilty of “concealing” that which had been wrongfully retained in the first place. The subsequent acts of concealment must be so “completely divorced” from the original misappropriation as to “constitute an independent course of conduct.” (Moses, 217 CA3d at 1256.) Otherwise, the retainer cannot be convicted of concealing stolen property pursuant to PC 496 and the jury should be so instructed. (See also, FORECITE F 1750 Note 1; FORECITE F 17.02 n7.)
(See FORECITE F 1750 Note 2.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
RESEARCH NOTES
See Annotation, Participation in larceny or theft as precluding conviction for receiving or concealing the stolen property, 29 ALR5th 59 and Later Case Service.
CALJIC NOTE: See FORECITE F 14.65a.
F 1750.6 Inst 4 Receiving Stolen Property: No Legal Duty To Report Crime (PC 496)
*Add to CC 1750:
There is no legal duty to report to the authorities that another person is guilty of the crime of receiving stolen property. It is not a crime to be present or live at a location where there is stolen property knowing that such property is stolen unless one commits an affirmative act to conceal the fact.
The act of touching or moving stolen property with the knowledge that the property is stolen is not itself an offense unless the acts are done for the purpose of buying, selling, receiving, withholding, or concealing stolen property or assisting someone else in buying, selling, receiving, withholding, or concealing stolen property.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction On Evidence That Alone Is Insufficient To Convict—See FORECITE F 370 Inst 8.
Mere Presence—People v. Villa (1957) 156 CA2d 128, 134 [Mere presence doesn’t establish aider or abettor liability.] [See also FORECITE F 1750.6 Inst 5.]
Failure To Act—People v. Luna (1956) 140 CA2d 662, 664 [a person who stands by and watches an assault, and even approves of it, is a mere bystander, and not an accessory to the assault.]
Mere Silence—People v. Garnett (1900) 129 C 364, 366 [Under PC 32, mere silence, after knowledge of the commission of a felony, is not sufficient to constitute one an accessory, without some affirmative act looking towards the concealment of the crime.]
See also 54 Harv.L.Rev. 506 [Common-Law Offense of Misprision of Felony Held Not Part of Modern Criminal Law] and cases cited therein.
Touching Or Moving Of Stolen Property Not Sufficient—See FORECITE F 1751.4 Inst 2.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
[See also FORECITE F 3.01d for instruction relating this principle to aiding and abetting in general.]
CALJIC NOTE: See FORECITE F 14.65b.
F 1750.6 Inst 5 (a-c) Presence At Scene Not Alone Sufficient
*Add to CC 1750:
Alternative a [CC 375, 852, 853 Format]:
If you conclude that the defendant was present or live where there was stolen property knowing that the property was stolen, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of ____________ <insert charged offense[s]>. The prosecution must still prove each element of every charge beyond a reasonable doubt.
Alternative b [CC 362 Format]:
If you conclude that the defendant was present or live where there was stolen property knowing that the property was stolen, it is up to you to decide its meaning and importance, if any. However, any such evidence cannot prove guilty by itself.
Alternative c [CC 420 Format]:
[Being present or living where there was stolen property knowing that the property was stolen is not sufficient alone to convict the defendant of ____________ <insert charged offense[s]>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction That Specific Evidence Is Not “Alone” Or “By Itself” Sufficient To Convict Or Prove A Fact—See FORECITE F 370 Inst 8.
Limitation Of Conviction Based On Speculative Inference Alone Required By Federal Constitution—See FORECITE F 370 Inst 8.
“If Any” In Alternative b—”If any” was added to Alternative b. (See FORECITE F 105.1 Inst 6.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”— The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 2.3 [Prosecution’s Burden of Proof: Irrational Permissive Inference]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1750.6 Inst 6 Receiving Stolen Property: Innocent Intent Defense
See FORECITE F 1751.6 Inst 1.
CALJIC NOTE: See FORECITE F 14.65c.
F 1750.7 Receiving Stolen Property—Preliminary Fact Issues [Reserved]
F 1750.8 Receiving Stolen Property—Unanimity/Duplicity/Multiplicity
F 1750.8 Inst 1 Adaption Of Unanimity Instruction To Multiple Counts Of Receiving Stolen Property
Add to CC 1750 when appropriate:
You may not find the defendant guilty of Counts __________________ <insert Count No(s).> unless you all agree as to each such count that the People have proved that the defendant received, concealed or withheld from its owner at least one item of property that had been stolen, and you all agree on which item of property has been received, concealed or withheld as to each count.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – Neither CC 1750 nor the general CALCRIM unanimity instructions (CC 3500 et. seq.) address the situation where the defendant is charged with multiple counts as to each of which there is evidence of different acts which could support conviction of the offense. In People v. Mitchell (2008)164 CA4th 442, 464 the judge addressed such a situation by adding the following language to CC 1750: “You may not find the defendant guilty unless you all agree that the People have proved the defendant received, concealed or withheld from its owner at least one item of property that had been stolen and you all agree on which item of property had been received, concealed or withheld.” On appeal the defendant contended that this language was defective because it did not relate the unanimity requirement to each individual count. The defendant argued that the instruction proposed above better explained the situation. The appellate court did not disagree that the proposed instruction might have been better but held that the claim had been forfeited because the proposed modification had not been requested below. Moreover, the reviewing court concluded that the defendant’s substantial rights had not been affected because the judge also gave CC 3515 which required the jury to consider each count separately.
In sum, when, unlike in Mitchell, a request for the above proposed instruction is made at trial the better practice would be to give it and thus correctly express the legal principle in a single instruction rather than requiring the jurors to glean the principle by reference to another more general instruction. (See People v. Danks (2004) 32 C4th 269, 307 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out]; see also Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 7:2, Cases Interpreting This CALCRIM, p. 399.)
Identification Of Parties – See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1750.9 Receiving Stolen Property—Lesser Offense Issues [Reserved]
