Opinion
H024081.
7-2-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL YANG WANG, Defendant and Appellant.
Following a jury trial, appellant was convicted of 10 counts of residential burglary and acquitted of two burglary counts. (Pen. Code, § 459.) He was also convicted of one count of being a convicted felon in possession of a firearm and one count of being a convicted felon in possession of ammunition. He admitted an allegation that he was out of custody on bail or his own recognizance when he committed these offenses. (Pen. Code, §§ 12021, subd. (a), 12316, subd. (b), 12022.1.) The trial court sentenced appellant to 16 years in state prison. Appellant contends the prosecution suppressed material evidence favorable to him, the trial court erred in denying his motion to continue the trial, and the trial court erred in instructing the jury pursuant to CALJIC Nos. 2.15 and 17.41.1. We affirm.
Evidence at Trial
On November 8, 2000, just after 5 p.m., Alicia Fang arrived at her parents house in Los Altos to check on it because they were on vacation. She noticed a white car parked across the street. As she pulled into the driveway, she heard the burglar alarm. She saw appellant run from the back of the house into the front yard and into the white car. She backed her car out of the driveway and blocked the street, knowing the car had driven down a cul-de-sac. Appellant drove off the road into the bushes to get around Fangs car. As appellant drove away Fang got his license number, 3XKK689, and gave it to the police.
Deputy David Awbrey of the Santa Clara County Sheriffs Department received a dispatch concerning this burglary and saw appellant driving a white Camry with the reported license plate number. He followed appellant, called for back-up, and turned on his lights and siren. Appellant pulled over. Deputy Awbrey ordered appellant out of the vehicle and told him to get down on the ground. After appellant was handcuffed, another deputy asked appellant "Wheres the gun?" Appellant replied, "Im not sure. Its my friends."
A deputy searched appellant and found a large roll of American and foreign money, a gold band, and a gold bracelet with hearts on it in his pockets. Searching appellants car, the deputies found a sword in a sheath on the back floorboard and, under the drivers seat, a loaded Glock 9mm. semi-automatic handgun. In appellants glove box, they found a loaded 9mm. magazine, binoculars, several watches and a jewelry box with jewelry. A computer monitor was in the front seat. There was a drill with metal shaving on the attached drill bit in the front passenger area. On the front floorboard was a felt bag containing jewelry. The car contained a tire iron with pry marks on it and, in the trunk, a hacksaw and latex gloves. In the back seat of the car, deputies found a cardboard box containing used latex gloves, jewelry boxes, and various types of jewelry.
The deputies found a business card for the Jewel Box jewelry store and a document reflecting a $ 2,000 loan from the Jewel Box on November 6. On the center console, the deputies found two large cups and, on the front passenger floorboard, two baseball hats. Two two-way radios were in the trunk.
A deputy brought Fang to the scene of appellants vehicle stop, where she positively identified him as the man she had seen at her parents house. Appellants shoes seemed to match a shoeprint found near the rear bathroom door that had been kicked open.
On October 25, 2000, Helen Leong heard her doorbell ring at about 11 a.m. at her Milpitas home. She looked out the window and saw a white Toyota Camry parked near her driveway. She did not answer the door and the bell rang again. She saw a man leave the front of her house and walk around the side. She saw the man in her side yard looking around. She heard someone jiggling the door on the side of her garage. As Leong called 911, the intruder opened the garage door, setting off the alarm. Leong yelled, "Get out of here. You dont belong here" at the man, who slammed the garage door and left. Leong went outside and got a partial license number from the Camry, "3XX." The man she saw was tall, had a medium build, was in his late 20s and had dark hair.
On October 28, 2000, Jewel Chapman returned at about 3 p.m. to her Fremont home and noticed that the master bathroom window was open. The window screen was on the ground outside, and a folding lawn chair was opened outside the window. All of her jewelry boxes were missing. In November, various items of her jewelry were recovered from a store called the Jewel Box. The Jewel Box owner testified he received this jewelry from appellant.
On October 31, 2000, Betsy Dale returned at about 4:15 p.m. to her Mill Valley home, located behind a golf course. She noticed a white Camry parked the wrong way between her property and her neighbors. As she entered her garage, she could see appellant in the inside back patio. When she asked appellant if she could help him, he told her he was looking for a golf ball.
Appellant headed for the Camry and Dale noticed that the door from the patio to the dining room was ajar. She saw the bedroom window screen was broken. She then noticed appellant had reentered her patio. When appellant saw her, he ran to the Camry and drove away. Dale saw the license plate began with "3XK." Dale was missing 30 or 40 rings. Some of this jewelry was in the collection recovered from the Jewel Box.
On November 6, 2000, Elaine Hocum arrived at her Fremont home at about 3:15 p.m. to find most of her jewelry missing. Her husband showed her that the doors from the house to the garage and from the garage to the yard were open. Later, her blue Topaz ring was recovered from the Jewel Box.
Sometime after November 8, 2000, Peter Shui and Mie Shan Kuan discovered they were missing a handgun, an ornamental sword and jewelry from their Cupertino home. The gun and sword had last been seen in early November and the jewelry in late October or early November. Some of the jewelry was recovered from the Jewel Box.
On November 8, 2000, Leslie Filice returned from work at about 5 p.m. to her Los Altos home. Her burglar alarm was ringing. The French door to the bedroom was open, but she did not notice anything missing. Several days later, she noticed her bathroom window was broken and its screen was in the bathtub. There was a footprint on the wall outside the window.
On November 8, 2000, William Hamilton returned to his Los Altos home between 3 and 4 p.m. He noticed his computer monitor and a gold bracelet were missing. The bracelet was later found in appellants pocket. Hamiltons monitor was the one found in the front seat of appellants car. The door that separated Hamiltons portion of the house from that of his tenants was open and the doorframe was broken. His tenant returned home around 6 p.m. and saw that the screen door to his portion of the house was bent and the door behind it was open.
On November 8, 2000, Ana Kelly returned home from work to her Cupertino home to find the door from her garage into her house was open and her jewelry and laptop computer were missing. She identified as hers some of the items recovered by deputies from those appellant brought to the Jewelry Box.
On November 18, 2000, Anthony Chung and his wife returned to their Fremont home after a trip to Taiwan. The next day, they noticed jewelry and cash missing. Chung had activated the burglar alarm before leaving on the trip, and it was still activated when he returned home. However, he had not activated it the day before he left on the trip, November 8, 2000. Some of the Chung jewelry was in the glove box of appellants car at the time of his arrest.
Sergeant Karen Burgess of the Santa Clara County Sheriffs Department interviewed appellant after his arrest. Appellant told Burgess that he was unemployed, that he was a gambling addict, and that the white Camry belonged to his father. He said that one day, after he lost a great deal of money gambling, he met someone called "Tiger" at Garden City who offered to help him make money. He first worked for Tiger about eight days earlier. He said he drove Tiger to an area north of the Golden Gate Bridge. He said he was seen by a woman at one place, and that he told the woman he was looking for a golf ball. He said Tiger paid him $ 1,000 for driving him that day, and they used some hand-held radios to communicate.
Appellant said that on November 8, 2000 he met up with Tiger at Garden City about 3 p.m. Tiger showed him a gun and a sword. Tiger drove to some houses and, when Tiger got out, appellant got into the drivers seat. He said they went to four houses, and he helped Tiger kick in the door at one house. He said at one house he helped carry a computer monitor away. He said Tiger told him to always wear gloves.
Appellant told Sergeant Burgess he sold jewelry at a store called the Jewel Box, and he thought the jewelry could not be traced. He said he sold one or two items there.
Sergeant Burgess asked appellant questions about Tiger. Appellant said he was a small white guy he had seen at Bay 101 and Garden City. He said Tiger was skinny and fast; he could enter homes through small windows. Appellant met with a sketch artist to produce a composite sketch of Tiger. He said he had no way of reaching Tiger except to go to Garden City and look for him. He was concerned his family might be at risk from Tiger.
Sergeant Burgess testified Sheriffs Department personnel took the composite sketch to the Garden City security office and asked them to try to identify Tiger. They talked to two people at the club and they watched security videos in an effort to identify Tiger. They saw appellant in a video, but could not identify anyone who looked like the sketch. Sergeant Burgess testified they were never able to find anything to corroborate appellants claim that someone was working with him during the burglaries.
The owner of the Jewel Box testified appellant sold jewelry to him on October 11, November 2, and November 6, 2000. On November 8, appellant dropped off a bag of jewelry to be appraised. The law required the Jewel Box to hold jewelry for 30 days. When the police came to ask him about appellant, he gave them all the jewelry appellant had sold to him and the items appellant dropped off November 8 for appraisal. Although some of this jewelry was identified by the victims in this case, many items were never identified by anyone.
At trial, appellant testified to events similar to what he told Sergeant Burgess the day he was apprehended. He explained he lived with his parents and became addicted to gambling after high school. He gambled at casinos all over California including Bay 101 and Garden City. He estimated his gambling losses at close to one million dollars. He lost his job and "went back to China to study." Being "away from a gambling facility" curbed his gambling. When he finished his studies, he returned to his parents home, which was about three minutes away from Bay 101. Whenever he had more than $ 200, he would gamble for days at a time. When he ran out of money, he engaged in a practice called "shoe shining." He would stand behind winners while they were gambling and, when they won, ask for some of their chips. Appellant testified that when people are winning they "become real generous."
Appellant decided he needed help with his gambling problem again, so he joined the Army. He married his girlfriend and was stationed in Korea. He returned to San Jose on a leave, started gambling again, and lost all the money he had saved up while in the military. He went back to Korea and kept gambling. He went AWOL to spend four days in a casino and was discharged from the Army. His wife stayed in Korea and gave birth to his son. He returned to live with his parents. He was gambling again and was criminally prosecuted for "writing bad checks." His marriage ended and his wife returned her engagement ring. Appellant took this ring to the Jewel Box and sold it.
Appellant testified that on October 31, 2000 he ran into Tiger, whom he had seen before "floating around between Garden City [and] Bay 101." Appellant testified he lost about $ 30,000 in two or three hours. He went outside to smoke a cigarette and Tiger started talking to him. Tiger offered him money to drive for him. Appellant testified, "I was suspicious, but I didnt ask any questions."
Appellant testified he drove Tiger across the Golden Gate Bridge. At different locations, Tiger would get out of the car with a black bag. Appellant testified he was "not sure what [Tiger] was doing" and thought he might be selling drugs. At the Dale house, Tiger returned to the car and told appellant he wanted to show him what he was doing. They used the two-way radios later found in appellants car.
Appellant heard a car coming and radioed Tiger. Appellant testified Tiger was inside the house when Dale confronted appellant outside the house. He said he drove away alone and used the two-way radios to find Tiger and pick him up.
Appellant would not agree to drive for Tiger again. He did buy some jewelry from Tiger on November 2. Although he knew the jewelry was stolen, appellant took it to the Jewel Box and sold it to get gambling money.
Appellant testified he purchased more jewelry from Tiger on November 7. On November 8, appellant met Tiger at Garden City. Appellant purchased more jewelry from him. Tiger also showed him a gun and a sword, which appellant declined to purchase. Appellant went to the Jewel Box around 9 a.m. and waited around until about noon because the owner was busy. Appellant went to Garden City. Tiger wanted appellant to drive for him and, because he was concerned about the type of people Tiger associated with, appellant agreed to let Tiger drive. Appellant wanted to ride in the passenger seat because he was tired from gambling all night.
Appellant fell asleep in the car. He did not know where they went, but did open the trunk for Tiger at one residence when Tiger came out with a computer monitor. At another address, Tiger was having a problem kicking down the door and asked appellant to help. Appellant testified it "took me three shots before that door really cracked." Appellant ran back to the car. He saw an occupied car in front of the house, so he drove away but found a dead end. He turned around and swerved by the car. He drove away, and wanted to throw away the items in his car "because I [did not] want to be caught with this stuff that Tiger last brought into my car." He was stopped by the police. He said he did not know the gun was in the car.
Appellant admitted being at the Filice residence when the alarm sounded. He admitted lying to Sergeant Burgess about his contacts with the Jewel Box, saying he did not want to get the owner in trouble.
Appellant testified that in late November or early December he met with a San Jose police officer who showed him some photos. The officer told him it was an old photo. Appellant testified he told the officer "this one looked like [Tiger] but Im not quite sure." Later, the officer returned with photos from a casino. Although the view was from the side rather than the front, appellant told the officer he was "80 percent" sure this was Tiger. At trial, appellant was shown a photograph of Gabriel Thaler and appellant said, "Thats Tiger."
San Jose Police Sergeant Michael Leininger testified on rebuttal that he contacted appellant in late November or early December. He was investigating approximately 100 unsolved burglaries in west San Jose, Cupertino and Sunnyvale, all with a very similar method of operation. He became aware that appellant had been arrested by the Sheriffs Department and was claiming to have been working with an individual that he referred to as Tiger. Leininger wanted to find out if Tiger existed and if he could be responsible for some of the burglaries he was investigating. Using the composite sketch, Leininger contacted Bay 101 and Garden City looking for someone called Tiger. Although he did not identify anyone with the nickname Tiger, Leiningers contacts at Garden City "came up" with someone nicknamed "GT" whose real name was Gabriel Thaler.
Leininger testified "Tiger" is not an uncommon nickname in the Asian community. Appellant told the deputies Tiger was a "white male." Leininger did not testify concerning how common the nickname "Tiger" is the "white" community.
Leininger showed appellant a booking photo of Gabriel Thaler. Leininger testified appellant hesitated and said he could not be sure one way or the other whether this was Tiger. Because the photo was a year old, Leininger said he would try to find a more recent photo. He met with appellant a second time and showed him a surveillance camera picture of Thaler. Leininger testified appellant said it was not Tiger. Leininger testified that at some point appellant indicated he was afraid if he identified one person or another there would be "negative consequences" for him or his family.
Because Thaler lived close to some of the San Jose burglaries Leininger placed him under surveillance and continued to investigate him as a possible suspect in the unsolved burglaries he was investigating. Leininger testified he was unable to discover anything to suggest Thaler was involved in any of them.
Latent fingerprints lifted from two of the burglary locations did not match appellant or Thaler.
Brady Issue
Appellant contends the prosecution committed error under Brady v. Maryland (1963) 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, when "it failed to timely provide the defense with materials which had been in the possession of the police concerning individuals who used the name `Tiger and concerning the investigation of Gabriel Thaler, whom Wang identified as Tiger."
Intentional or negligent suppression by the prosecution of material evidence on the issue of guilt favorable to the accused violates due process. (Brady v. Maryland, supra, 373 U.S. 83, 86-87.) "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler v. Greene (1999) 527 U.S. 263, 281-282, 144 L. Ed. 2d 286, 119 S. Ct. 1936, fn. omitted.)
The information at issue here was not favorable to appellant. The list of individuals with the nickname "Tiger" is essentially neutral information. Leiningers unproductive investigation of Thaler for burglaries unrelated to those for which appellant was tried was not exculpatory to appellant in the charged burglaries.
The Brady rule "encompasses evidence `known only to police investigators and not to the prosecutor. [Citation.] In order to comply with Brady, therefore, `the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the governments behalf in the case, including the police. Kyles, 514 U.S., at 437 ." (Strickler v. Greene, supra, 527 U.S. at pp. 280-281, italics added.) In In re Brown (1998) 17 Cal.4th 873, 952 P.2d 715 , our Supreme Court stated, "The scope of this disclosure obligation extends beyond the contents of the prosecutors case file and encompasses the duty to ascertain as well as divulge `any favorable evidence known to the others acting on the governments behalf . . . . [Citation.] Courts have thus consistently `declined "to draw a distinction between different agencies under the same government, focusing instead upon the `prosecution team which includes both investigative and prosecutorial personnel." [Citation.] [Fn. omitted.]" (Brown, supra, 17 Cal.4th at p. 879, italics added.) Brown also observed, "`The individual prosecutor is presumed to have knowledge of all information gathered in connection with the governments investigation." (Brown, supra, 17 Cal.4th at p. 879, italics added, quoting U.S. v. Payne (2d Cir.1995) 63 F.3d 1200, 1208.)
In People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, the court stated, "A prosecutors duty under Brady to disclose material exculpatory evidence extends to evidence the prosecutor — or the prosecution team — knowingly possesses or has the right to possess. The prosecution team includes both investigative and prosecutorial agencies and personnel. . . . [P] A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence is possessed by a person or agency that has been used by the prosecutor or the investigating agency to assist the prosecution or the investigating agency in its work. The important determinant is whether the person or agency has been `acting on the governments behalf [citation] or `assisting the governments case. [Citation.]" (People v. Superior Court (Barrett), supra, 80 Cal.App.4th at pp. 1314-1315, italics added.)
Barrett continued, "Conversely, a prosecutor does not have a duty to disclose exculpatory evidence or information to a defendant unless the prosecution team actually or constructively possesses that evidence or information. Thus, information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material." (People v. Superior Court (Barrett), supra, 80 Cal.App.4th at p. 1315.)
Brady and its progeny do not hold the prosecution in a particular case responsible for determining what information other police agencies may have developed as they pursue other cases against a different person. Here, this prosecution involved burglaries in Los Altos, Cupertino, Fremont, Mill Valley and Milpitas that were investigated by the Santa Clara County Sheriffs Office, the Fremont Police Department, the Milpitas Police Department and the Mill Valley Police Department. No San Jose burglaries were charged, and the San Jose Police Department was not involved in this prosecution. Sergeant Leininger was independently investigating a series of "separate unsolved" burglaries. He did not question appellant about the pending case or assist the Sheriffs Office in any way. The information he developed had no connection to the investigation or prosecution of the criminal charges against appellant and thus was not possessed by the prosecution team. We do not consider the information developed by Leininger to have been in the constructive possession of the prosecution team in this case.
Appellant has not shown prejudice. The situation is distinguishable from most cases of suppression by the prosecution in which the existence of the suppressed evidence is not discovered by the defendant until after the trial is over and a verdict reached. Here, appellant has not demonstrated that earlier disclosure of this material would have led to further evidence bolstering his claim that Tiger, and not appellant, was responsible for some of the burglaries. Because the evidence appellant asserts was withheld by the prosecution was presented to the jury through the testimony of Sergeant Burgess and Sergeant Leininger, the question of "whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence" has been answered. (Kyles v. Whitley (1995) 514 U.S. 419, 434, 131 L. Ed. 2d 490, 115 S. Ct. 1555.) There is no reasonable likelihood that earlier disclosure of this evidence would have put the case in a different light. Accordingly, no Brady violation occurred.
SeeUnited States v. Darwin (11th Cir.1985) 757 F.2d 1193, 1201 (when defendant receives information at trial, to prevail on Brady claim he must show prejudice from failure to disclose information earlier), certiorari denied (1986) 474 U.S. 1110 [106 S. Ct. 896, 88 L. Ed. 2d 930].
Appellant argues that had he been given this information earlier, he could have used it "to develop the defense that Tiger was responsible for the bulk of the charged burglaries, and that while [appellant] was guilty of some burglaries, as to most counts he was only guilty of possession of stolen property." However, appellant states "[a] defense investigator would never have obtained the level of cooperation from security personnel at gambling establishments which was extended to the police."
Denial of Motion for Continuance
Appellant contends the trial court erred in denying his motion for a continuance to allow defense counsel to prepare a defense. It is settled that the trial court may grant a motion to continue only when the moving party establishes good cause. (Pen. Code, § 1050, subd. (e).) "A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence." (People v. Jenkins (2000) 22 Cal.4th 900, 1037, 997 P.2d 1044.) "The trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial." (Ibid.; People v. Frye (1998) 18 Cal.4th 894, 1012-1013, 959 P.2d 183.) In exercising its discretion, the court must consider the benefit the moving party anticipates, that is, whether the continuance would be useful. (Owens v. Superior Court (1980) 28 Cal.3d 238, 251, 168 Cal. Rptr. 466, 617 P.2d 1098.) To demonstrate usefulness, however, the moving party must show that the evidence sought is material and could be obtained within a reasonable time. (People v. Beeler (1995) 9 Cal.4th 953, 1003, 891 P.2d 153.)
In challenging the denial of a continuance on appeal, the moving party must establish both an abuse of discretion and prejudice. (People v. Samayoa (1997) 15 Cal.4th 795, 840, 938 P.2d 2.) Discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. (People v. Jones (1998) 17 Cal.4th 279, 318, 949 P.2d 890 ; People v. Froehlig (1991) 1 Cal.App.4th 260, 265.)
Appellant contends the trial court abused its discretion in denying his motion for a continuance on the first day of trial. Defense counsels office, the Alternate Defenders Office, represented appellant at the time of his preliminary hearing May 4, 2001. As of June 6, 2001, when the prosecution requested a conditional examination of two witnesses because they had travel plans, the case was set on the master trial calendar for July 9, 2001 and appellant had not waived time. On June 13, defense counsel appeared with appellant. Appellant did not waive time and the case was set for settlement discussions on June 18. On June 22, counsel appeared with appellant, who had still not waived time, for the conditional examination of witnesses, and the case remained as set.
On June 29, counsel filed a motion for a continuance to be heard July 3. In his declaration, counsel indicated appellant would be willing to waive time. Counsel noted the complexity of the case, said "much of the physical evidence has not yet been disclosed to the defense, nor has the defendants tape recorded statement been turned over in evidence." The declaration noted the defense was "in the process of interviewing" various witnesses. Counsel stated the defense was "attempting to contact employees of the Garden City Card Club, which may be the link between all the victims in this crime." The declaration did not mention Tiger. Counsel requested "an opportunity to settle the case prior to trial."
On July 3, appellant waived time. On July 10, settlement discussions ended in an impasse. On July 11, the trial court denied appellants motion for a continuance.
Appellant again moved for a continuance on July 13 in the trial court. Counsel explained to the trial court he was assigned appellants case "at the end of May." He was then in trial for approximately two weeks, and began settlement discussions with the prosecutor. Those negotiations proved fruitless. Counsel told the trial court that "two weeks ago, I started preparing the case for trial by getting together physical pieces of discovery that had not previously been turned over, like photos, fingerprint cards, audiotaped statement, et cetera, most of which Ive received this week." Counsel said he was most concerned about information about Tiger.
Counsel explained that he had "made requests from the District Attorney about this person named Tiger, and about efforts to find this person named Tiger. And just this last Tuesday on July 10th . . . there was a speaker phone call . . . where an officer who was from the San Jose Police Department [who] had gone out two weeks after my clients arrest with a photographic lineup and had said . . . that he had verified there was actually a person named Tiger and this person named Tiger was working out of Garden City and Bay 101 casinos. . . . [P] I got this persons name from [the prosecutor] yesterday." Counsel wanted to explore the "angle" that Tiger "might be somebody who [the victims] either know or whatever." He said "our investigator is attempting to contact witnesses and possibly alibi witnesses from the Garden City and Bay 101 card clubs concerning this person Tiger and people who are at the card clubs that might have had contact with him."
Counsel recited the history, recounted above, of the investigation into the existence of Tiger. He said, "I dont know where that would lead, but I need to make a record that we dont feel weve had enough time to collect that evidence so that we could form that into a motion." He wanted time to explore Miranda issues and review photographs. Counsel said he was not ready to proceed to trial.
Counsel explained that appellant cooperated with Leininger in reviewing the photographs brought to him, and counsel said he had called Leininger at least four times but he did not expect him to cooperate with the defense. The prosecutor explained that during the July 10 hearing "I heard, for what I believe was the very first time, the name Mike Leininger who is the San Jose PD officer who the defense told us had been doing some kind of follow-up with regard to the issue of Tiger out at Bay 101." During the July 10 session, the prosecutor made some telephone calls, and, in the judges chambers in a conference call on speaker phone "everybody found out at the same time what Officer Leininger had and hadnt done." The prosecutor explained, "There had been a request from the defense that we look into who had followed up on investigating whether or not Tiger existed. But unless Im given a specific name of somebody to talk to, I cant just call the San Jose Police Department or any agency and say, `Hey, has anybody over there been looking into the name of somebody Tiger? As soon as [defense counsel] gave me that name, I did what investigation I could." The prosecutor also mentioned that she had "30 potential witnesses lined up, the first of which . . . is leaving the country next Wednesday[.]" Defense counsel offered to stipulate that "on particular days that their houses were broken into, that entry was made at a particular point and that specific items of evidence have been taken from their homes. And we were offering that stipulation in the hopes that the Court would balance our need to investigate and produce an affirmative defense with the inconvenience of the Peoples witnesses."
The trial court said that if Tiger were relevant to an affirmative defense of third party culpability for the burglaries, "your client would have had at least some significant relationship that allowed this to go on between the two of them. And that your client would be in a heck of a lot better position to identify who Tiger is, where he could be found than the People would be. . . . [P] So it just seems to me that if Tiger is a figure that we need to find out about, your client is probably in a better position than anybody to identify who that is, where that person could be and develop your defense for the case."
The trial court told defense counsel he could address his concerns about appellants taped statements to the police during trial through in limine motions. Revisiting the Tiger issue, the court said "Certainly the People have indicated their case is going to take approximately a week to put on, and you know, anything thats discovered in the meantime would certainly be information Id be willing to discuss with you and we can go with it from where we are. [P] But as far as not starting the trial until we get that information which may never exist or may not come in later on, I dont think its a good reason." The trial court denied the motion for a continuance.
Appellant argues, "the court erred in denying defense counsels repeated motions for a continuance to allow time for counsel to prepare for trial and in particular to investigate matters relating to Tiger and Gabriel Thaler." Appellant has failed to explain, either in the trial court or here, how further investigation of Thaler would produce material, exculpatory evidence. His written request for a continuance filed June 29 makes no mention of Tiger or defense efforts to locate him. Defense counsel candidly admitted, "I dont know where that would lead" when asking for more time to explore the Tiger issue. Now, on appeal, appellant refers to "expected testimony" relevant to third party culpability. Of course, appellant did testify concerning Tiger at trial. Sergeants Leininger and Burgess testified as well to what little they had to add to the Tiger scenario. Appellants speculation that further investigation of Thaler might result, within a reasonable period of time, in some unspecified exculpatory evidence did not justify continuing the trial. The court did not abuse its discretion in denying appellants motion for a continuance.
"To be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendants guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352." (People v. Bradford (1997) 15 Cal.4th 1229, 1325, 939 P.2d 259.) Under Evidence Code section 352, the court may exclude minimally probative evidence "that creates a substantial danger of undue consumption of time or of prejudicing, confusing or misleading the jury." (People v. Hall (1986) 41 Cal.3d 826, 826, 226 Cal. Rptr. 112, 718 P.2d 99.)
CALJIC No. 2.15
Appellant contends the trial court erred in instructing the jury pursuant to CALJIC No. 2.15 that it could infer appellants guilt of burglary based upon his conscious possession of recently stolen property and slight corroborating evidence. The jury was instructed as follows: "If you find that a defendant was in possession of recently stolen property, the fact of that possession is not, by itself, sufficient to permit an inference that the defendant is guilty of the crime of burglary. [P] Before guilt may be inferred, there must be corroborating evidence tending to prove defendants guilt; however, this corroborating evidence need only be slight and need not, by itself, be sufficient to warrant an inference of guilt. [P] As corroboration, you may consider the attributes [of] possession — time, place and manner, that the defendant had an opportunity to commit the crime charged. That the defendants conduct, his false or contradictory statements, if any, and/or other statements he may have made with reference to the property, or a false account of how he acquired possession of the stolen property, or any other evidence which tends to connect the defendant with the crime charged."
Appellant argues that giving this instruction was error because "it was confusing to the jury and impermissibly intruded upon the deliberative process. The instruction was constitutionally defective because it suggested that the jury could convict appellant of burglary on a standard of evidence less than of beyond a reasonable doubt." Appellant argues, "the instruction amounts to a permissive inference which violates due process."
This court has previously stated, "CALJIC No. 2.15 has repeatedly withstood challenges on the grounds that it lessens the burden of proof or otherwise denies a defendant due process of law." (People v. Williams (2000) 79 Cal.App.4th 1157, 1173.) In People v. Anderson (1989) 210 Cal. App. 3d 414, 426-427, 258 Cal. Rptr. 482, the Fourth District, Division One, explained that the inference of guilt created by the instruction is permissive only. "Where an inference of guilt is merely permissive (rather than mandatory), the prosecutions use of the inference comports with due process requirements unless, under the facts of the case, there is no rational way for the jury to make the logical connection which the inference permits. [Citation; fn. omitted.] That is, a permissive inference empowers the jury to credit or reject the inference based on its evaluation of the evidence, and therefore does not relieve the People of any burden of establishing guilt beyond a reasonable doubt." (210 Cal. App. 3d at p. 427.)
Citing U. S. v. Rubio-Villareal (9th Cir. 1992) 967 F.2d 294, appellant argues that CALJIC 2.15 is defective because it was likely to confuse and mislead the jury about its responsibilities. In Rubio-Villareal the court considered the propriety of an instruction that permitted the jury to infer that the defendant knew contraband was contained in a vehicle from the two facts that the defendant was the driver and that contraband was concealed in the body of the vehicle. The court held that this instruction was deficient. The court said, "The key problem with permissive inferences is that they isolate and abstract a single circumstance from the complex of circumstances presented in any given case, and, on proof of that isolated fact, authorize an inference of some other fact beyond reasonable doubt. . . . Permissive inferences thus permit juries to avoid assessing the myriad facts which make specific cases unique." (Rubio-Villareal, supra, 967 F.2d at p. 299.) Here, the instruction allowed the jury to make the permissive inference only if there was additional evidence aside from the recent possession of stolen property. Under this instruction, the jury could not have convicted appellant solely based on his undisputed possession of recently stolen property.
Furthermore, as the Supreme Court has observed in cases involving robbery and burglary, "instructions are not considered in isolation. . . . The jury was advised that the instructions were to be considered as a whole and each in the light of all of the others. It was also instructed on all of the required elements of burglary and robbery and was expressly told that in order to prove these crimes, each of the elements must be proved. We see no possibility that giving the jury the additional admonition that it could not rely solely on evidence that defendant possessed recently stolen property would be understood by the jury as suggesting that it need not find all of the statutory elements of burglary and robbery had been proven beyond a reasonable doubt. Indeed, where identity of a perpetrator is in dispute or sought to be proved by circumstantial evidence, CALJIC No. 2.15 protects the defendant from unwarranted inferences of guilt based solely on possession of property stolen in the charged offense." (People v. Holt (1997) 15 Cal.4th 619, 677, 937 P.2d 213; accord People v. Smithey (1999) 20 Cal.4th 936, 977-979, 978 P.2d 1171.) Accordingly, "considering the instructions in their entirety, as we must [citation], we find no possibility that instructing the jurors pursuant to CALJIC No. 2.15 suggested that they need not find that all the statutory elements of burglary and robbery had been proven beyond a reasonable doubt . . . ." (People v. Smithey, supra, 20 Cal.4th at pp. 978-979.) For these reasons, we conclude in the present case that the trial court did not err by giving CALJIC No. 2.15.
CALJIC No. 17.41.1
The court instructed with CALJIC No. 17.41.1. Appellant argues that CALJIC No. 17.41.1 deprived him of due process and a fair jury trial. Although acknowledging People v. Engelman (2002) 28 Cal.4th 436, appellant raises this contention "for purposes of preserving this issue for subsequent federal review." We have no wish to impede his progress in this regard but no authority to agree with his claims of constitutional error. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal. Rptr. 321, 369 P.2d 937.) Engelman held that the giving of CALJIC 17.41.1 did not infringe upon that defendants federal or state constitutional right to trial by jury or his state constitutional right to a unanimous jury verdict. (Id. at pp. 442-445.) The court was not persuaded that CALJIC No. 17.41.1 unconstitutionally impaired the secrecy of jury deliberations. (Id. at pp. 442-444.)
The appellate record before us does not indicate any allegation of jury misconduct or other problem with the jury deliberations related to the challenged instruction. The instructions in this case, like those in Engelman, conveyed the necessity for each juror to exercise his or her impartial, independent judgment. (Cf. People v. Engelman, supra, 28 Cal.4th at pp. 444-445.)
Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P. J., and Mihara, J.