MISCELLANEOUS INSTRUCTION IDEAS: Possession
Of Recently Stolen Property Must Be "Unexplained"; Jury Required
To Find More Than Mere Presence
(March 1997)
Note: All references to "FORECITE" refer to FORECITE California,
authored by Thomas Lundy and available from James Publishing. Go to: http://jamespublishing.com/books/fc.htm
*Add to CJ 2.15:
However, no inference of guilt
may be made from the defendant's conscious possession of recently stolen
property when such possession was satisfactorily explained. If you have a
reasonable doubt as to whether or not the possession was satisfactorily
explained, you may not infer guilt based solely upon the defendant's
possession of the property and the existence of slight corroboration. Rather,
guilt must be proved beyond a reasonable doubt by evidence other than the
defendant's possession of the property.
Or
However, no inference of guilt may be
made from the defendant's conscious possession of recently stolen property
when such possession was satisfactorily explained. To be satisfactory, the
explanation need only raise a reasonable doubt as to whether or not the
defendant came into possession of the property by criminal means. If you have
such a reasonable doubt as to whether or not the possession was satisfactorily
explained, you may not infer guilt based solely upon the defendant's
possession of the property and the existence of slight corroboration.
Points and Authorities
CALJIC 2.15 misstates the common law
permissive inference of guilt of theft from possession of recently stolen
property by removing the requirement that such possession must be unexplained.
(See People v. McFarland (62) 58 C2d 748, 755 [26 CR 473]; Barnes v.
U.S. (73) 412 US 837, 845 [37 LEd2d 380; 93 SCt 2357].) However, it is well
established that the rule in California is: ..."Possession of stolen
property, accompanied by no explanation, or an unsatisfactory explanation of
the possession, or by suspicious circumstances, will justify an inference
that the goods were received with knowledge that they had been stolen. This
rule is applied where the accused is found in possession of the articles soon
after they were stolen." (People v. McFarland, supra, at
754, emphasis supplied, citing People v. Lyons (58) 50 C2d 245, 258 [324
P2d 556].)
Moreover, removal of the explanation
factor, coupled with the failure to inform the jury that the inference does not
apply unless the prosecution proves the lack of a satisfactory explanation
beyond a reasonable doubt, unconstitutionally shifts the burden of proof to the
defendant in violation the Due Process clause of the 14th amendment. (See People
v. Mayberry (75) 15 C3d 143, 157 [125 CR 745] [error not to give requested
instruction that defendant only required to raise a reasonable doubt as to
whether he had bona fide belief in consent to sexual intercourse]; see also People
v. Hardy (48) 33 C2d 52, 64-65 [198 P2d 865] [defendant need only go
forward with evidence sufficient to raise a doubt].) For example, the current
CALJIC instruction permits the jury to completely ignore any explanation for
the possession--no matter how plausible or compelling--and convict the
defendant based solely upon his or her "conscious possession"
of the property and "slight corroborating evidence." Such a result
would violate settled constitutional issues on two scores. First, by making
possession and slight corroboration a "sole and sufficient basis for
finding guilt" even if the possession was satisfactorily explained, the
instruction offers an improper shortcut to conviction by failing to tell the
jury that it could be dispelled by other evidence adduced in the case. (See County
Court of Ulster v. Allen (79) 442 US 140, 187 [60 LEd2d 777; 99 SCt 2213]
["As long as it is clear that the presumption is not the sole and
sufficient basis for a finding of guilt, it need only satisfy the [`more likely
than not'] test described in Leary."].) Second, conscious
possession which is satisfactorily explained does not provide a rational basis
for concluding that the defendant "more likely than not committed the
crime." "[A] criminal statutory presumption must be regarded as
`irrational' or `arbitrary,' and hence unconstitutional unless it can at least
be said with substantial assurance that the presumed fact is more likely than
not to flow from the proved fact upon which it is made to depend. [fn
omitted]." (Leary v. U.S. (69) 395 US 6, 36 [23 LEd2d 57; 89 SCt
1532]; see also, County Court of Ulster at 165-66 and Hanna v.
Riveland (9th Cir. 1996) 87 F3d 1034.) In sum, the judicially created
presumption embodied in CJ 2.15 (which should be subjected to no less scrutiny
than a statutory presumption (see U.S. v. Gainey (65) 380 US 63, 66-67
[13 LEd2d 658; 85 SCt 754]) is unconstitutional without supplementation such as
set forth above which informs the jury that guilt cannot be founded upon the
inference alone unless it has been proven beyond a reasonable doubt that there
was no satisfactory explanation for the possession.
Approval of the current version of CJ
2.15 in People v. Anderson (89) 210 CA3d 414, 425-32 [258 CR 482], does
not preclude the above modification of CJ 2.15 because Anderson did not
consider the question of whether the possession must be unexplained. (See People
v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390]; People v. Superior Court
(Marks) (91) 1 C4th 56, 65-66 [2 CR2d 389]; Santa Clara County Local
Transportation Authority v. Guardino (95) 11 C4th 220, 243 [45 CR2d 207]
[cases are not authority for matters not considered].) Second, Anderson
fails to recognize, as explained above, that even a permissive inference can be
constitutionally infirm if it permits the jury to use an evidentiary shortcut
to conviction which does not require the prosecution to prove beyond a
reasonable doubt the existence of those facts which are necessary to rationally
connect the inference with the defendant's guilt--i.e., that the possession was
not satisfactorily explained. Third, Anderson characterizes "guilty
knowledge" as the inference (Anderson, at 431) whereas CJ 2.15
permits an inference of guilt. [Additional briefing on this issue is
available to CACJ Members, ask for Brief Bank # B-705.]
Failure to adequately instruct upon a
defense or defense theory implicates the defendant's state (Art. I, § 15 and
§ 16) and federal (6th and 14th Amendments) constitutional rights to trial by
jury, compulsory process and due process. [See FORECITE PG VII(C).]
FORECITE 3.01l Jury Required To Find More Than Mere
Presence.
*Replace CJ 3.01 "mere presence" language with the
following:
Mere presence at the scene of a crime,
knowledge that a crime is being committed and failure to take action to
prevent the crime are not enough to convict the defendant as an aider and
abettor. Even if you have concluded that the defendant was a "knowing
spectator" who failed to prevent or report the crime, you may not convict
the defendant unless you find that there is additional evidence, above and
beyond the defendant's knowing presence, which, in light of all the
circumstances, proves beyond a reasonable doubt that the defendant intended to
commit, encourage or facilitate the commission of the crime.
OR *Modify CJ 3.01 "mere presence" language to
provide as follows [added language is capitalized; deleted language is between
<<>>]:
Mere presence of a person at the scene
of a crime <<which does not itself assist the commission of the
crime does not amount to aiding and abetting>> IS
INSUFFICIENT IN ITSELF TO PROVE THAT SUCH PERSON WAS AN AIDER OR ABETTOR.
Points and Authorities
It has long been settled that mere
presence at the scene of the crime and the failure to take action to prevent
the crime are not alone sufficient to constitute aiding and abetting. (People
v. Van Nguyen (93) 21 CA4th 518, 529 [26 CR2d 323]; People v. Durham
(69) 70 C2d 171, 181 [74 CR 262].) Likewise, knowledge of another's criminal
purpose is not sufficient for aiding and abetting. (People v. Beeman
(84) 35 C3d 547, 560 [199 CR 16].) "Neither mere presence at the scene of
a crime, nor the failure to take steps to prevent a crime, is alone sufficient
to establish that a person is an aider and abettor. Such evidence may, however,
be considered together with other evidence in determining that a person is an
aider and abettor. [Citation.]" (In re Jose T. (91) 230 CA3d 1455,
1460 [282 CR 75].) In other words, it is not enough that the defendant was
"merely a knowing spectator." (See People v. Bishop (96) 44
CA4th 220, 234 [51 CR2d 629]; see also People v. Villa (57) 156 CA2d
128, 135 [318 P2d 828] ["presence at the scene of the crime, ...knowledge
that a crime was being committed and...failure to prevent it alone could not
support the conviction [for aiding and abetting]."].)
The problem with the current language of
CJ 3.01 is that it effectively tells the jury that mere presence which does
assist the commission of the crime constitutes aiding and abetting. As made
clear by the above discussion, this is not the law.
Moreover, the current instruction could
be prejudicial because a juror could quite reasonably conclude that a
defendant's presence at the scene aided the commission of the crime, even
though the defendant had no intent of doing so. (See State v. Noriega (Ariz.Ct.App.
1996, 94-0474) 1996 Ariz.App. LEXIS 153 [221 Ariz.Adv.Rep. 22].) Additionally,
by failing to require that the jury find other evidence above and beyond mere
presence, CJ 3.01 invites the jury to rely on the defendant's presence in order
to establish the intent elements as well. (Ibid; compare People v.
Brown (81) 116 CA3d 820, 826 [172 CR 221] [jury instructed that "mere
presence of a person at the scene of a crime... is insufficient in itself
to show that such person is an aider or abettor...."]; People v. Howard
(64) 226 CA2d 281, 285 [37 CR 918] ["Mere presence at the scene of the
crime is not sufficient, without more, to establish that a witness was
an aider or abettor.... [Citations.]"].)
Failure to adequately instruct upon a
defense or defense theory implicates the defendant's state (Art. I, § 15 and
§ 16) and federal (6th and 14th Amendments) constitutional rights to trial by
jury, compulsory process and due process. [See FORECITE PG VII(C).]
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