People v. Land, B080518

CourtCalifornia Court of Appeals
Citation30 Cal.App.4th 220,35 Cal.Rptr.2d 544
Decision Date21 November 1994
Docket NumberNo. B080518,B080518
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Jerry LAND, Defendant and Appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Senior Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen., Paul M. Roadarmel, Jr., Deputy Atty. Gen., for plaintiff and respondent.

JOHNSON, Associate Justice.

Appellant, Jerry Land, was convicted by a jury of numerous criminal offenses committed during a one night crime spree. He appeals his conviction, contending: (1) insufficient evidence supports the finding he aided and abetted the robbery, assault with a firearm and attempted murder of Gabriel Sandoval; (2) insufficient evidence supports the conviction for receiving stolen property; (3) it was reversible error to admit a document of unknown origin with his name on it found in the stolen vehicle; (4) it was reversible error to fail to instruct sua sponte aiding and abetting liability does not attach where the criminal act is the independent product of one of the perpetrators; (5) it was reversible error to fail to instruct on the effect of his accomplice's intoxication; (6) it was prejudicial error to instruct the jury could disregard the testimony of a witness who was willfully false when the instruction appeared to be directed at his exculpatory testimony; (7) it was error to punish him for both the robbery and attempted murder of Sandoval; and, (8) the restitution fine was improperly imposed in the absence of a determination of his ability to pay. After a review of the entire record, we conclude, whatever errors might have occurred were not prejudicial. Accordingly, we affirm the judgment.

FACTS AND PROCEEDINGS BELOW **
DISCUSSION

I. SUBSTANTIAL EVIDENCE SUPPORTS APPELLANT'S CONVICTION FOR ROBBERY AS AN AIDER AND ABETTOR AND FOR ASSAULT WITH A DEADLY WEAPON AND ATTEMPTED MURDER WHICH THE JURY FOUND TO BE THE NATURAL AND PROBABLE CONSEQUENCES OF THE ARMED ROBBERY.**

II. SUBSTANTIAL EVIDENCE SUPPORTS THE CONVICTION FOR RECEIVING STOLEN PROPERTY.

According to appellant's statement to the police, the evening's events began with him and his friend drinking in his backyard. At some point, appellant's friend left and returned with a white car. His friend suggested going to the San Fernando Valley (Valley) to visit a girlfriend. Once in the car appellant's friend told him the car was stolen. When they reached theValley his friend said he wanted to rob somebody. According to appellant's statement, his friend then stole some food from a 7-Eleven store.

After the theft at the 7-Eleven, they resumed driving the white car. They saw a red vehicle and his friend told appellant, "We're going to rob that Hispanic and take his car." They made a U-turn and intentionally bumped into Gabriel Sandoval's car. They took Sandoval's wallet at rifle point and made him crawl into the white car. Sandoval was shot in the back and in the leg and left for dead in the stolen white car. Appellant and his friend then took off in Sandoval's car.

Appellant was charged with the unlawful taking or driving of the white car (Veh.Code, § 10851, subd. (a)) and with receiving the same stolen property (Pen.Code, § 496, subd. (a)). The jury found appellant not guilty of the theft of the car but convicted him of receiving that stolen property.

Appellant contends the conviction must be reversed because there was no evidence he possessed or exerted dominion and control over the vehicle. He claims the evidence showed he was merely a passenger in the stolen vehicle.

At the time of trial, section 496, subdivision (a) provided in pertinent part: "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, is punishable by imprisonment in a state prison, ..."

Thus, to sustain a conviction for receiving stolen property, the prosecution must prove (1) the property was stolen; (2) the defendant knew the property was stolen; and, (3) the defendant had possession of the stolen property. (People v. Kunkin (1973) 9 Cal.3d 245, 249, 107 Cal.Rptr. 184, 507 P.2d 1392; see also People v. Price (1991) 1 Cal.4th 324, 464, 3 Cal.Rptr.2d 106, 821 P.2d 610.)

Possession of the stolen property may be actual or constructive and need not be exclusive. 2 (See, e.g. People v. Martin However, we agree with appellant, mere presence near the stolen property, or access to the location where the stolen property is found is not sufficient evidence of possession, standing alone, to sustain a conviction for receiving stolen property. (People v. Martin, supra, 9 Cal.3d at p. 696, 108 Cal.Rptr. 809, 511 P.2d 1161 [evidence defendant had stolen goods in the trunk of his car taken from co-defendant's car trunk inadequate evidence to sustain conviction for receiving the stolen property in co-defendant's car]; People v. Myles, supra, 50 Cal.App.3d at p. 429, 123 Cal.Rptr. 348 [evidence defendant was passenger in car and found standing close to car trunk containing stolen goods insufficient to infer possession for conviction of receiving stolen property]; People v. Zyduck (1969) 270 Cal.App.2d 334, 336, 75 Cal.Rptr. 616 [evidence defendant was passenger in car with stolen chain saw in rear seat insufficient evidence to infer his possession of stolen item].)

                (1973) 9 Cal.3d 687, 695-696, 108 Cal.Rptr. 809, 511 P.2d 1161;  People v. Redrick (1961) 55 Cal.2d 282, 288, 10 Cal.Rptr. 823, 359 P.2d 255;  People v. Johnson (1980) 104 [30 Cal.App.4th 224] Cal.App.3d 598, 606, 164 Cal.Rptr. 69;  People v. Estrada (1965) 234 Cal.App.2d 136, 155, 44 Cal.Rptr. 165;  see also Perkins and Boyce, Criminal Law (3d ed. 1982) Receiving Stolen Property, Ch. 4, § 6, pp. 395-397;  4 Wharton's Criminal Law (14th ed. 1981) Receiving Stolen Property, § 458, pp. 17-21.)   Physical possession is also not a requirement.  It is sufficient if the defendant acquires a measure of control or dominion over the stolen property.  (People v. Myles (1975) 50 Cal.App.3d 423, 429, 123 Cal.Rptr. 348;  see also 3 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Crimes against Property, § 628, pp. 706-707 and cases cited.)
                

Appellant does not contest two of the three elements of the crime of receiving stolen property were satisfied. Appellant's own statement established the car was stolen and he knew the car was stolen. It is the third prong which appellant claims lacks evidentiary support. In reliance on Martin, Myles and Zyduck, supra, he argues evidence he was merely a passenger in the car is insufficient to infer he possessed or exerted dominion or control over the stolen vehicle.

The People counter the evidence demonstrated more than mere access or proximity to the stolen property. The People's argument suggests appellant's physical presence in the stolen vehicle, or the suspicious circumstances surrounding the car's acquisition, is sufficient to demonstrate he co-possessed the car with the driver. In support of their position the People cite People v. Johnson, supra, 104 Cal.App.3d 598, 164 Cal.Rptr. 69, where a thief and his accomplice were found to co-possess the stolen property. However, the evidence in that case established both men had actual possession of the stolen purses, if only for a short while. The men were discovered together going through the women's stolen purses while standing in the same bathroom stall.

The decision in People v. Barnes (1962) 210 Cal.App.2d 740, 26 Cal.Rptr. 793 is also not on point. There the defendant not only accompanied the thief, but also aided in concealing the property and even attempted to sell some of it. These factors, in combination, were enough to support a finding the defendant possessed the stolen property. So once again the defendant's conviction was sustained on evidence of actual possession of the stolen property.

While we do not doubt the correctness of the rationales or analyses of these decisions, they do not shed any light on the entirely different factual question of whether, and under what circumstances, a passenger in a stolen car, knowing the car is stolen, may be properly found to have possession or dominion and control over the stolen vehicle.

Neither side has directed our attention to any reported California decision directly raising the issue of the type and quantum of evidence sufficient to find a passenger in a stolen vehicle guilty of receiving that stolen car. Our independent research has also proved unsuccessful. (Compare, People v. Clark (1967) 251 Cal.App.2d 868, 60 Cal.Rptr. 58 and People v. Champion (1968) 265 Cal.App.2d 29, 71 Cal.Rptr. 113 [evidence defendant may have been passenger in stolen car Courts of other jurisdictions have attempted to identify those additional facts which give rise to the inference a passenger has possession of a stolen car. For example, the New York Court of Appeals in People v. Rivera (1993) 82 N.Y.2d 695, 601 N.Y.S.2d 470, 619 N.E.2d 407 reversed the conviction for possession of stolen property of a defendant who was found sitting in the passenger seat of a parked car. Although the evidence suggested the defendant knew or should have known the car was stolen, there was no evidence he had done anything to exert control over the stolen vehicle. The court indicated proof of possession required at least some evidence of "when defendant entered the vehicle or what part, if any, he played in its taking." (601 N.Y.S.2d at p. 471, 619 N.E.2d at 408.) 3

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