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THE PEOPLE v. MORRIS JEFFERSON JR

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. MORRIS JEFFERSON, JR., Defendant and Appellant.

F058371

Decided: July 20, 2010

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Defendant appeals from his conviction of one count of receiving stolen property.   He contends there was insufficient evidence to support his conviction, and the jury instructions omitted an essential element of the offense.   We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with one count of burglary and one count of receiving stolen property.   The jury convicted him only of receiving stolen property.   He appeals, contending there was insufficient evidence to support his conviction and the jury was not properly instructed.

On December 20, 2008, at approximately 3:00 a.m., Luis Morales was awakened by dogs barking and noises coming from inside a nearby trailer belonging to his cousin, Seferino Valencia.   Morales called Valencia, who said he was not home.   Morales then went outside, where he saw defendant taking things from a refrigerator outside Valencia's trailer and putting them into the trunk of a gray Buick.   Morales called out, “What are you taking?”   Defendant got in the car and left.   Morales wrote down the license number of the car.   Valencia arrived home at daybreak and found CDs, DVDs, a sleeping bag, several blankets, and four tires missing.

When Valencia had left his trailer, the door was locked.   When he returned, the door was open and everything was thrown on the floor.   Valencia went looking for the Buick and found it;  he saw defendant and Christine Artherholt in the car, with his blankets and tires in the back seat.1  He followed the car and called the police.

When Deputy Luis Pineda arrived at Valencia's trailer on December 20, 2008, he observed the door had been pried open and items had been thrown on the floor inside.   He found a lug nut wrench inside the trailer, which Valencia said did not belong to him.   Deputy Pineda learned the gray Buick had been found, and went to that location, which was the home of defendant's cousin, Yolanda Goudeau.   Defendant was present there.   Deputy Pineda searched the residence and found a sleeping bag and a pink purse that did not belong to Goudeau.   Inside the pink purse were four DVD movies and one music CD.

Artherholt testified that she was a prostitute and Valencia was a regular client.   At 9:00 or 10:00 p.m. on December 19, 2008, she went to Valencia's trailer for a prearranged meeting.   Defendant, who had been her friend for 10 or 15 years, drove her there because she did not have a car.   Defendant dropped her off and left.   Artherholt knocked, but no one answered.   The trailer door was open, so she went inside and waited for Valencia.   When Valencia did not show up, she felt she was entitled to compensation and took a sleeping bag and a few CDs. She put the CDs in her purse.   Defendant returned 30 to 35 minutes after he dropped her off.   Artherholt put the items she had taken into the car, without telling defendant about them.   Later, when Valencia began chasing their car, defendant asked why they were being chased and Artherholt told him about taking the items.

Deputy Pineda interviewed Artherholt on December 20.   In the tape-recorded portion of her statement, Artherholt stated defendant drove her to a trailer for a date with Juan, but Juan was not there, so they left.   After the batteries in the tape recorder died, Artherholt stated that, when she knocked at Valencia's trailer and got no answer, she got back in the car.   Defendant took a lug nut wrench from under the front seat and pried the trailer door open.   He went inside and started to stack items by the door.   He then went to the refrigerator beside the trailer and, while he was going through it, someone yelled at him.   Defendant got in the car, and they drove away.   Deputy Pineda also interviewed defendant, who first stated he was elsewhere at 3:00 a.m. on December 20, and later stated he had given Artherholt a ride to “that dude's house” for a date, and they left when he was not there.   A man in boxer shorts yelled at them before they left.   Later, he and Artherholt were chased by Juan. In his statement, defendant admitted to Deputy Pineda that he had the sleeping bag.

Artherholt pled guilty to receiving stolen property prior to defendant's trial.

DISCUSSION

I. Sufficiency of Evidence of Receiving Stolen Property

Penal Code section 496 2 provides that “[e]very person who buys or receives any property that has been stolen ․ or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen ․ shall be punished” as specified. (§ 496, subd. (a).)  Count 2 of the information charged defendant with violating this statute;  it alleged he “did unlawfully ․ buy, receive, conceal, sell, withhold, and aid in concealing, selling, and withholding property ․ which had been stolen ․, knowing that said property had been stolen.”   In instructing the jury on the elements of the offense of receiving stolen property, however, the trial court gave the following instruction, which is a modified version of CALCRIM 3 No. 1750:

“The defendant is charged in Count 2 with receiving stolen property, in violation of Penal Code Section 496(a).   To prove the defendant is guilty of this crime, the People must prove that [one,] the defendant aided in selling property that had been stolen;  two, when the defendant aided in selling the property, he knew that the property had been stolen;  and, three, the defendant actually knew the presence of the property.

“Property is stolen if it was obtained by any type of theft or by burglary.   To receive property means to take possession and control of it.   Mere presence near or access to the property is not enough.   Two or more people can possess the property at the same time.”  (Italics added.)

Defendant contends the jury was instructed only in terms of aiding in the sale of stolen property, and not in terms of receiving, withholding or concealing stolen property.   He asserts that, “[t]o conform to due process of law, [defendant was] entitled to have the validity of [his] conviction[ ] appraised on consideration of the case as it was tried and as the issues were determined in the trial court.”  (Cole v. Arkansas (1948) 333 U.S. 196, 202 (Cole ).)   Because there was no evidence that anyone sold stolen property or that defendant aided in such a sale, defendant contends there was insufficient evidence to support his conviction on count 2.

In Cole, section 1 of Act 193 of the 1943 Arkansas Legislature (Act) made it “unlawful for any person by the use of force or violence, or threat of the use of force or violence, to prevent or attempt to prevent any person from engaging in any lawful vocation.”  (Cole, supra, 333 U.S. at p. 199, fn. 2.) Section 2 of the same Act made it “ ‘unlawful for any person acting in concert with one or more other persons, to assemble at or near any place where a “labor dispute” exists and by force or violence prevent ․ any person from engaging in any lawful vocation.’ ”  (Id. at p. 198.)   The information against the defendants charged that “ ‘acting in concert with other persons, [they] assembled’ ” at a certain plant “ ‘where a labor dispute existed, and by force and violence prevented Otha Williams from engaging in a lawful vocation.’ ”   (Ibid.) The trial court read section 2 to the jury and instructed on what was required for a conviction under that section.   After the defendants were convicted, the Arkansas Supreme Court affirmed, concluding the defendants were properly convicted of the “ ‘use of force or violence, or threat of the use of force or violence,’ ” which was unlawful under section 1 of the Act;  it refused to consider the defendants' federal constitutional challenges to their convictions under section 2. (Cole, at p. 200.)

The United States Supreme Court reversed, concluding the defendants were charged and tried under section 2 of the Act;  the trial court construed the information to charge a violation of section 2, and instructed the jury accordingly.  “Without completely ignoring the judge's charge, the jury could not have convicted petitioners for having committed the separate, distinct, and substantially different offense defined in § 1. Yet the State Supreme Court refused to consider the validity of the convictions under § 2, for violation of which petitioners were tried and convicted.   It affirmed their convictions as though they had been tried for violating § 1, an offense for which they were neither tried nor convicted.”  (Cole, supra, 333 U.S. at pp. 200-201, fn. omitted.)  “To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.”  (Id. at p. 202.)   Because the defendants had been denied due process, the Court reversed and remanded for consideration of the defendants' challenges to their convictions under section 2 of the Act. (Cole, at p. 202.)

Defendant was not charged with one offense and convicted of another, nor has this court been asked to evaluate his conviction on a theory that he received or withheld stolen property when that theory was not presented in the trial court.   Defendant was charged with receiving stolen property in violation of section 496, subdivision (a);  the information alleged he “did unlawfully ․ buy, receive, conceal, sell, withhold, and aid in concealing, selling, and withholding” stolen property.   At trial, the prosecution's theory was that defendant received, concealed or withheld the stolen property.   The People presented evidence that defendant took the property and retained it until the police discovered it at Goudeau's house.   Throughout his closing argument, the prosecutor referred to the offense alleged in count 2 as receiving stolen property, not selling stolen property.   The prosecutor argued in closing that defendant admitted having Valencia's sleeping bag in his car when Valencia saw it.   He asserted the stolen property was “actually recovered in the defendant's possession,” and the evidence proved defendant “broke into the trailer, took the property, kept the property, and transported the property.”   He added that, even if Artherholt took the property, defendant transported it and kept it.   The prosecutor stated:

“Also, with the second count, the second count is receiving stolen property, that you know to be stolen, that is very self-evident.   If you have the property and you know it's stolen, you're keeping the stolen property.   And in this case, we have the defendant riding around with the property.   We have a witness seeing him take the property.   We have all kinds of evidence to show him personal [sic ] in possession of the property at different times of the night.”

The trial court's instruction identified the offense charged in count 2 as receiving stolen property.   It then described the first element as “aiding in selling property that had been stolen.”   That was not the theory presented by the prosecutor.   The instruction, however, went on to define “receive property” as “to take possession and control of it.”   It also explained that multiple persons can possess property at the same time.

The record does not reveal why this limited version of the instruction was given and a more complete instruction was either withdrawn or refused.   “ ‘Instructions should be given a reasonable, not a close and technical, interpretation, and they should be construed in connection with the evidence and the remainder of the charge.’ ”  (People v. Monteverde (1952) 111 Cal.App.2d 156, 168.)   Considering the instruction as a whole, along with the offense charged and the evidence presented at trial, we believe the instruction adequately informed the jury that the offense could be committed by receiving stolen property, that is, by taking possession and control of it, as well as by selling it.

This case is not analogous to Cole. In Cole, the information alleged a violation of section 2 of the Act, the trial court interpreted it as charging a violation of section 2, the prosecutor presented evidence aimed at showing a violation of section 2, the trial court instructed on the elements required for violation of section 2, and the jury convicted the defendant of violating section 2. It was only the appellate court that completely shifted the focus of the case and analyzed it as a violation of section 1 of the Act, which the Supreme Court found denied the defendant due process.   Here, defendant was charged with receiving stolen property, which included receiving, concealing, and withholding such property.   The evidence, argument, and instructions addressed receiving and withholding the property.   We do not believe the sufficiency of the evidence should be determined by considering only whether there was substantial evidence of aiding in selling stolen property.   There was ample evidence that defendant received and withheld stolen property, and defendant's conviction may be upheld on that basis.

II. Knowledge Property Was Stolen

Defendant contends the trial court failed to instruct the jury that knowledge that the property was stolen was an essential element of receiving stolen property.   He asserts the same jury instruction previously discussed (CALCRIM No. 1750) defined “receive” in terms of possession and control, but did not instruct that possession and control had to be accompanied by defendant's knowledge the property was stolen.   Defendant argues this relieved the prosecution of the burden of proving one of the essential elements of the offense, and constituted prejudicial error.

Even without a request, “[t]he trial court must instruct ․ on the general principles of law relevant to and governing the case.  [Citation.]  That obligation includes instructions on all of the elements of a charged offense.   [Citation.]”  (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)  “ ‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’  [Citation.]  ‘ “The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.” ’  [Citation.]”  (People v. Castillo (1997) 16 Cal.4th 1009, 1016.)

The instruction given by the trial court set out the elements of the offense, including “two, [defendant] knew that the property had been stolen.”   That statement did not immediately precede or follow the definition of “receive,” but it was contained in the same instruction.   It sufficiently advised the jury that knowledge that the property was stolen was an essential element of the offense of receiving stolen property.   Consequently, the trial court did not fail to instruct the jury on an essential element of the offense.   We note that the prosecutor's argument also tied the knowledge element to the receiving element.   He argued:  “[T]he second count is receiving stolen property, that you know to be stolen․  If you have the property and you know it's stolen, you're keeping the property.   That makes you guilty of actually receiving stolen property.”   We conclude the trial court did not fail to instruct the jury that knowledge that the property was stolen was an essential element of receiving stolen property.

DISPOSITION

The judgment is affirmed.

HILL, J.

WE CONCUR:

GOMES, Acting P.J.

KANE, J.

FOOTNOTES

FN1. He later inconsistently testified he had not seen the tires since they went missing..  FN1. He later inconsistently testified he had not seen the tires since they went missing.

FN2. All further statutory references are to the Penal Code unless otherwise indicated..  FN2. All further statutory references are to the Penal Code unless otherwise indicated.

FN3. Judicial Council of California Criminal Jury Instructions (2010) (CALCRIM)..  FN3. Judicial Council of California Criminal Jury Instructions (2010) (CALCRIM).

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