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Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Earl RODER, Defendant and Appellant.

Cr. 21419.

Decided: November 19, 1981

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, William D. Stein, Asst. Atty. Gen., W. Eric Collins, David D. Salmon, Deputy Attys. Gen., for plaintiff and respondent. Quin Denvir, State Public Defender, Philip M. Brooks, Deputy State Public Defender, San Francisco, for defendant and appellant.

Defendant appeals from a judgment1 entered on a jury verdict finding him guilty of receiving stolen property (Pen.Code, s 496) and possession of marijuana for sale (Health & Saf. Code, s 11357). Relying on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, and People v. Henderson, 109 Cal.App.3d 59, 167 Cal.Rptr. 47, he contends that he was deprived of due process, as a jury instruction based on the statutory presumption of Penal Code section 496, subdivision 22 on the element of knowledge, unconstitutionally shifted the burden of proof. For the reasons set forth below, we have concluded that the judgment must be affirmed.

The pertinent facts are as follows: In January 1980, defendant and his codefendant Betty Rayfield shared a residence and were coproprietors of Betty Boop's Junque Shop, a second hand store in Santa Cruz. On January 30, 1980, 60 items were seized from the store and residence, and subsequently identified by their owners as stolen, including a Selmer clarinet stolen from Bart Goldsteen in November 1979. The clarinet was easily identifiable as it had a severe crack and was enclosed in a unique case. Immediately after the theft, Goldsteen described his clarinet to defendant. Defendant gave conflicting testimony as to whether he remembered this conversation. Rayfield bought a clarinet from Merle A. Turner for $20, but failed to get his name, address and license number, a not unusual violation of the store's policy. Sometime before Christmas, defendant talked to Heisig, an instrument dealer in San Jose who was interested in purchasing the clarinet. Heisig called the San Jose and Santa Clara police about the clarinet but did not call the Santa Cruz Police Department as he believed that defendant had done so. Defendant, however, had made no such inquiry.

The court instructed the jury on the definition of reasonable doubt, the elements of receiving stolen property, and then gave an instruction based on Penal Code section 496, subdivision 2, set forth below.3

During its deliberations, the jury requested clarification of the instruction. The instruction was repeated and a copy provided to the jury. The court's inquiry after the verdict revealed that the clarinet was the only item of stolen property on which the jury agreed unanimously.

Preliminarily, we dispose of the People's procedural contentions. Defendant's failure to object to the instruction does not preclude our consideration, as he asserts that his “substantial rights” were affected (Pen.Code, ss 1259, 1469; People v. Graham, 83 Cal.App.3d 736, 743, 149 Cal.Rptr. 6; People v. Barraza, 23 Cal.3d 675, 684, 153 Cal.Rptr. 459, 591 P.2d 947). The instruction given was only in part as requested by the defense. Thus defendant's conduct did not induce the commission of the error and defendant was not precluded from raising the issue (cf. People v. Perez, 23 Cal.3d 545, 549-550, 153 Cal.Rptr. 40, 591 P.2d 63).

Defendant contends that the instruction unconstitutionally shifted the burden of proof by requiring him to adduce satisfactory evidence that he lacked guilty knowledge rather than compelling the People to prove this element beyond a reasonable doubt. Actually, his burden was to show that before receiving the clarinet, he (or his codefendant) had made a reasonable inquiry that the person delivering it had the legal right to sell or deliver it.4 As the U.S. Supreme Court noted in Ulster County Court v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777, inferences and presumptions are a staple of our adversary system of factfinding. Under the due process clause, the value of presumptions and their validity varies from case to case, and their constitutionality depends on the strength of the connection between the proven and the presumed elemental facts involved, and on the degree to which the presumption curtails the factfinder's freedom to assess the evidence independently.

In criminal cases, the ultimate test of the constitutional validity of any presumptions remains constant: it must not undermine the factfinder's responsibility at trial, based on evidence adduced by the state, to find every fact necessary to constitute the crime beyond a reasonable doubt (Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560; Ulster County, supra, 442 U.S. p. 156, 99 S.Ct. p. 2224; In re Winship, supra, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368; People v. Henderson, supra, 109 Cal.App.3d 59, 64, 167 Cal.Rptr. 47).

The mandatory or permissive nature of the presumption is the threshold inquiry in ascertaining the constitutional analysis applicable to the jury instruction before us (Sandstrom v. Montana, supra, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39; Ulster County, supra, 442 U.S. 140, 157-165, 99 S.Ct. 2213, 2224-2228, 60 L.Ed.2d 777). Defendant concedes that the presumption of the instant instruction was a rebuttable5 one, but maintains that it unconstitutionally shifted the burden of proof.

Our determination requires careful attention to the words actually spoken to the jury, for whether defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction (Sandstrom v. Montana, supra, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39; Ulster County, supra, 442 U.S. 140, 157-159, 99 S.Ct. 2213, 2224-2226, 60 L.Ed.2d 777).

Defendant argues that People v. Henderson, supra, 109 Cal.App.3d 59, 167 Cal.Rptr. 47, mandates a reversal of his conviction. We cannot agree. In Henderson, the trial court, pursuant to Penal Code section 12091, instructed the jury that: “Possession of any pistol or revolver upon which the name of the maker, model, manufacturer's number or other mark of identification has been changed, altered, removed, or obliterated, shall be presumptive evidence that the possessor has changed, altered, or obliterated the same unless from all the evidence there is a reasonable doubt to rebut this presumption” (109 Cal.App.3d pp. 61-62, 167 Cal.Rptr. 47; emphasis added). As no further explanation was given, the jury had no means by which to determine what was presumptive evidence and what quantum of evidence would create a reasonable doubt to rebut the presumption. In light of this confusion, the court held (at pp. 62-64, 167 Cal.Rptr. 47) that the jury was told that it must find obliteration by defendant if it found possession, unless other evidence about the identity of the obliterator created a reasonable doubt that the culprit was defendant. Thus, the court was faced with an essentially conclusive presumption that was properly invalidated.

The correctness of an instruction is to be determined in its relation to other instructions and in the light of the instructions as a whole (People v. Johnson, 104 Cal.App.3d 598, 613, 163 Cal.Rptr. 814). There are several critical differences between the Henderson instruction and the instant one. First, the instant instruction required that the basic facts be found beyond a reasonable doubt. Second, the trial court clearly and correctly explained that the presumption was rebuttable (People v. Katz, supra, 47 Cal.App.3d 294, 301, 120 Cal.Rptr. 603). Thus, the jury was not required to convict even if they found suspicious circumstances and failure to inquire.

The court further explained that: “There are two kinds of presumptions. One is a conclusive presumption that if you have the presumption, that's it, you don't go any further. This isn't that kind of presumption. It's what's called a rebuttable presumption, because you have the presumption, presume to know that the property was stolen, but they can go forward and raise a reasonable doubt that they actually knew that. So you still do have that question. Basically, it boils down to are you satisfied that they acquired the property or retained the property knowing it was stolen, or do you have a reasonable doubt ” (emphasis added).

The above explanation with the thrice-repeated admonition that the presumption did not apply if the jury found “from all the evidence that (it had) a reasonable doubt that the defendant knew the property was stolen,” demonstrates that a reasonable juror would have properly interpreted this instruction. Thus, the instant instructions directed the jury to consider all the circumstances tending to support or contradict the inference of defendant's guilty knowledge6 and to decide the matter itself (Ulster County, supra, 442 U.S. 140, 162, 99 S.Ct. 2213, 2227, 60 L.Ed.2d 777).

Further, an examination of the statute and its legislative history supports our finding that the presumption before us affects only the burden of production, and does not shift the burden of persuasion.

Penal Code section 496, subdivision 2, reflects a legislative determination that second-hand dealers comprise a reasonable class as they are the most able to determine whether or not an item has been stolen (People v. Katz, supra, 47 Cal.App.3d 294, 302, 120 Cal.Rptr. 603, Blakey & Goldsmith, Criminal Redistribution of Stolen Property, 74 Mich.L.Rev. 1511, 1575 (Aug. 1976)). As we recently indicated, Penal Code section 496 is aimed at the traditional “fence” (People v. Garcia, 121 Cal.App.3d 239, 247, 175 Cal.Rptr. 296). The Legislature designed the statute to facilitate the recovery of stolen property (Assembly Journal 1979-1980, Reg. Sess. ch. 1163, p. 4415). Experience has shown that by cutting off the “fence,” a major obstacle is placed in the path of encouraging thefts as a profitable venture (People v. Tatum, 209 Cal.App.2d 179, 183-184, 25 Cal.Rptr. 832).

To the extent that the rebuttable statutory presumption imposes an extremely low burden of production (e.g., as it is satisfied by any evidence), its impact is no greater than that of a permissive inference and, therefore, it may be properly analyzed as such (Ulster County, supra, 442 U.S. 140, 148, 99 S.Ct. 2213, 2220, 60 L.Ed.2d 777). Its practical effect is to pressure the defendant into producing some exculpatory evidence. As indicated above, defendant attempted to do so here.

As long as the presumption is not the sole and sufficient basis for a finding of guilt and the jury is instructed to independently consider all evidence and to decide the matter for itself, the presumption need only satisfy the test of Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57 (Ulster County, supra, 442 U.S. 140, 162-167, 99 S.Ct. 2213, 2227-30, 60 L.Ed.2d 777). Under the Leary test, a rebuttable presumption is constitutional if it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend (Leary, supra, 395 U.S. p. 36, 89 S.Ct. p. 1548; People v. Bedolla, 94 Cal.App.3d 1, 5, 156 Cal.Rptr. 171; People v. Katz, supra, 47 Cal.App.3d 294, 300, 120 Cal.Rptr. 603). Legislative determination must be weighed heavily in this assessment (Leary, supra). Katz, supra, held that Penal Code section 496, subdivision 2, met the Leary test.

As the permissive presumption here left the trier of fact free to credit or reject the inference and did not shift the burden of proof, it affects the application of the “beyond a reasonable doubt” standard only if, under the facts of the case, there was no rational way the jury could make the connection permitted by the inference (Ulster County, supra, 442 U.S. p. 157, 99 S.Ct. p. 2224).

The only issue before us then is to determine whether the evidence before the court could reasonably support a finding of defendant's knowledge beyond a reasonable doubt. The relevant question on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The test is whether there is substantial evidence to support the conviction (Jackson v. Virginia, supra, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2789-90, 61 L.Ed.2d 560; People v. Vann, 12 Cal.3d 220, 225, 115 Cal.Rptr. 352, 524 P.2d 824).

The instant record revealed that defendant discussed the stolen clarinet with Goldsteen in November and was given a clear description of the readily identifiable instrument. A month or so later, defendant called Heisig to examine the instrument for purchase. Defendant discussed the identification of stolen instruments with Heisig, who called several police departments in an effort to ascertain whether it had been stolen. Defendant admittedly never called the Santa Cruz police and never contacted Goldsteen after he discovered the clarinet in the shop. Thus, a reasonable jury could have concluded, even without the statutory presumption, that defendant knew that the clarinet had been stolen.

As we have concluded that there was no Sandstrom error, we do not reach the question of the applicable standard of error.

The judgment is affirmed. The purported appeal from the sentence is dismissed.


1.  The notice of appeal erroneously indicates that defendant also appeals from the sentence. As the sentence is merged into the judgment and not appealable, the purported appeal must be dismissed.

2.  At the time here pertinent, the statute provided: “Every person whose principal business is dealing in or collecting used or second-hand merchandise or personal property, and every agent, employee or representative of such person, who buys or receives any property which has been stolen or obtained in any manner constituting theft or extortion, under such circumstances as should cause such person, agent, employee or representative to make reasonable inquiry to ascertain that the person from whom such property was bought or received had the legal right to sell or deliver it, without making such reasonable inquiry, shall be presumed to have bought or received such property knowing it to have been so stolen or obtained. This presumption may, however, be rebutted by proof ” (emphasis added).

3.  “If you find beyond a reasonable doubt 1) that the defendants or either of their principal place of business was dealing in or collecting used or secondhand merchandise or personal property, or that defendants were the agents or employees of such a person, 2) that defendants had bought or received stolen property under such circumstances as should have caused defendants or either of them to make reasonable inquiry that the person from whom such property was bought or received had the legal right to sell or deliver it, without defendants making such reasonable inquiry; then you shall presume that defendants bought or received such property knowing it to have been stolen, unless from all the evidence you have a reasonable doubt that defendants knew the property was stolen.”

4.  A substantially similar due process contention was rejected in People v. Katz, 47 Cal.App.3d 294, 301-303, 120 Cal.Rptr. 603. Katz, however, predates Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, and Ulster County, supra, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777, on which our analysis is predicated.

5.  A rebuttable presumption is a preliminary assumption of fact that disappears from the case upon the introduction of evidence sufficient to sustain a finding of the nonexistence of the presumed fact (com. to Evid. Code, s 601). In a criminal case, it becomes inoperative if the defendant raises a reasonable doubt as to the existence of the presumed fact (Evid. Code, s 607), and may be rebutted by any evidence raising reasonable doubt. In addition, the jury is free to disregard the presumption totally (com. to Evid. Code, s 607).

6.  Defendant testified that he rarely made purchases and that the clarinet was a part of the inventory.

TAYLOR, Presiding Justice.

ROUSE and MILLER, JJ., concur.