California Criminal Jury Instructions (CALCRIM) (2017)

376. Possession of Recently Stolen Property as Evidence of a Crime

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376.Possession of Recently Stolen Property as Evidence of a
Crime
If you conclude that the defendant knew (he/she) possessed property
and you conclude that the property had in fact been recently (stolen/
extorted), you may not convict the defendant of <insert
crime> based on those facts alone. However, if you also find that
supporting evidence tends to prove (his/her) guilt, then you may
conclude that the evidence is sufficient to prove (he/she) committed
<insert crime>.
The supporting evidence need only be slight and need not be enough by
itself to prove guilt. You may consider how, where, and when the
defendant possessed the property, along with any other relevant
circumstances tending to prove (his/her) guilt of <insert
crime>.
[You may also consider whether <insert other appropriate
factors for consideration>.]
Remember that you may not convict the defendant of any crime unless
you are convinced that each fact essential to the conclusion that the
defendant is guilty of that crime has been proved beyond a reasonable
doubt.
New January 2006
BENCH NOTES
Instructional Duty
In People v. Najera (2008) 43 Cal.4th 1132, 1141 [77 Cal.Rptr.3d 605, 184 P.3d
732], the Supreme Court abrogated People v. Clark (1953) 122 Cal.App.2d 342,
346 [265 P.2d 43] [failure to instruct that unexplained possession alone does not
support finding of guilt was error]. Accordingly, there is no longer a sua sponte
duty to give this instruction.
The instruction may be given when the charged crime is robbery, burglary, theft, or
receiving stolen property. (See People v. McFarland (1962) 58 Cal.2d 748, 755 [26
Cal.Rptr. 473, 376 P.2d 449] [burglary and theft]; People v. Johnson (1993) 6
Cal.4th 1, 36–37 [23 Cal.Rptr.2d 593, 859 P.2d 673] [burglary]; People v. Gamble
(1994) 22 Cal.App.4th 446, 453 [27 Cal.Rptr.2d 451] [robbery]; People v. Anderson
(1989) 210 Cal.App.3d 414, 424 [258 Cal.Rptr. 482] [receiving stolen property].)
The crime of receiving stolen property includes receiving property that was
obtained by extortion (Pen. Code, § 496). Thus, the instruction also includes
optional language for recently extorted property.
Use of this instruction should be limited to theft and theft-related crimes. (People v.
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Barker (2001) 91 Cal.App.4th 1166, 1176 [111 Cal.Rptr.2d 403] [disapproving use
of instruction to infer guilt of murder]; but see People v. Harden (2003) 110
Cal.App.4th 848, 856 [2 Cal.Rptr.3d 105] [court did not err in giving modified
instruction on possession of recently stolen property in relation to special
circumstance of murder committed during robbery]; People v. Smithey (1999) 20
Cal.4th 936, 975–978 [86 Cal.Rptr.2d 243, 978 P.2d 1171] [in a case involving
both premeditated and felony murder, no error in instructing on underlying crimes
of robbery and burglary]; People v. Mendoza (2000) 24 Cal.4th 130, 176–177 [99
Cal.Rptr.2d 485, 6 P.3d 150].)
Corroborating Evidence
The bracketed paragraph that begins with “You may also consider” may be used if
the court grants a request for instruction on specific examples of corroboration
supported by the evidence. (See People v. Russell (1932) 120 Cal.App. 622,
625–626 [8 P.2d 209] [list of examples]; see also People v. Peters (1982) 128
Cal.App.3d 75, 85–86 [180 Cal.Rptr. 76] [reference to false or contradictory
statement improper when no such evidence was introduced]). Examples include the
following:
a. False, contradictory, or inconsistent statements. (People v. Anderson (1989) 210
Cal.App.3d 414, 424 [258 Cal.Rptr. 482]; see, e.g., People v. Peete (1921) 54
Cal.App. 333, 345–346 [202 P. 51] [false statement showing consciousness of
guilt]; People v. Lang (1989) 49 Cal.3d 991, 1024–1025 [264 Cal.Rptr. 386,
782 P.2d 627] [false explanation for possession of property]; People v. Farrell
(1924) 67 Cal.App. 128, 133–134 [227 P. 210] [same].)
b. The attributes of possession, e.g., the time, place, and manner of possession
that tend to show guilt. (People v. Anderson, supra, 210 Cal.App.3d at p. 424;
People v. Hallman (1973) 35 Cal.App.3d 638, 641 [110 Cal.Rptr. 891]; see,
e.g., People v. Gamble (1994) 22 Cal.App.4th 446, 453–454 [27 Cal.Rptr.2d
451].)
c. The opportunity to commit the crime. (People v. Anderson, supra, 210
Cal.App.3d at p. 425; People v. Mosqueira (1970) 12 Cal.App.3d 1173, 1176
[91 Cal.Rptr. 370].)
d. The defendant’s conduct or statements tending to show guilt, or the failure to
explain possession of the property under circumstances that indicate a
“consciousness of guilt.” (People v. Citrino (1956) 46 Cal.2d 284, 288–289
[294 P.2d 32]; People v. Wells (1960) 187 Cal.App.2d 324, 328–329, 331–332
[9 Cal.Rptr. 384]; People v. Mendoza (2000) 24 Cal.4th 130, 175–176 [99
Cal.Rptr.2d 485, 6 P.3d 150]; People v. Champion (1968) 265 Cal.App.2d 29,
32 [71 Cal.Rptr. 113].)
e. Flight after arrest. (People v. Scott (1924) 66 Cal.App. 200, 203 [225 P. 767];
People v. Wells, supra, 187 Cal.App.2d at p.329.)
f. Assuming a false name and being unable to find the person from whom the
defendant claimed to have received the property. (People v. Cox (1916) 29
Cal.App. 419, 422 [155 P. 1010].)
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g. Sale of property under a false name and at an inadequate price. (People v.
Majors (1920) 47 Cal.App. 374, 375 [190 P. 636].)
h. Sale of property with identity marks removed (People v. Miller (1920) 45
Cal.App. 494, 496–497 [188 P. 52]) or removal of serial numbers (People v.
Esquivel (1994) 28 Cal.App.4th 1386, 1401 [34 Cal.Rptr.2d 324]).
i. Modification of the property. (People v. Esquivel, supra, 28 Cal.App.4th at p.
1401 [shortening barrels of shotguns].)
j. Attempting to throw away the property. (People v. Crotty (1925) 70 Cal.App.
515, 518–519 [233 P. 395].)
AUTHORITY
• Instructional Requirements. People v. Williams (2000) 79 Cal.App.4th 1157,
1172 [94 Cal.Rptr.2d 727]; see People v. McFarland (1962) 58 Cal.2d 748, 755
[26 Cal.Rptr. 473, 376 P.2d 449].
• This Instruction Upheld. People v. O’Dell (2007) 153 Cal.App.4th 1569, 1577
[64 Cal.Rptr.3d 116]; People v. Solorzano (2007) 153 Cal.App.4th 1026, 1036
[63 Cal.Rptr.3d 659].
• Corroboration Defined. See Pen. Code, § 1111; People v. McFarland (1962)
58 Cal.2d 748, 754–755 [26 Cal.Rptr. 473, 376 P.2d 449].
• Due Process Requirements for Permissive Inferences. Ulster County Court v.
Allen (1979) 442 U.S. 140, 157, 165 [99 S.Ct. 2213, 60 L.Ed.2d 777]; People v.
Williams (2000) 79 Cal.App.4th 1157, 1172; People v. Gamble (1994) 22
Cal.App.4th 446, 454–455 [27 Cal.Rptr.2d 451].
• Examples of Corroborative Evidence. People v. Russell (1932) 120 Cal.App.
622, 625–626 [8 P.2d 209].
• Recently Stolen. People v. Anderson (1989) 210 Cal.App.3d 414, 421–422
[258 Cal.Rptr. 482]; People v. Lopez (1954) 126 Cal.App.2d 274, 278 [271 P.2d
874].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Property, § 13 [in context of larceny]; § 82 [in context of receiving stolen
property]; § 86 [in context of robbery]; § 135 [in context of burglary].
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 526
[presumptions].
1 Witkin, California Evidence (4th ed. 2000) Burden of Proof and Presumptions,
§ 62.
1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, § 129.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][c] (Matthew Bender).
377–399. Reserved for Future Use
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