California Court of Appeal Mar 20, 2013 No. E054094Unpublished
Filed 3/20/13 P. v. Gladden CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054094
v. (Super.Ct.No. RIF1101302)
GENE WILLIAM GLADDEN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Christian F. Thierbach,
Judge. Affirmed.
Brendan M. Hickey, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Lilia E. Garcia and Peter
Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant Gene William Gladden was caught in possession of copper welding
cable that had been stolen two days before from a fencing company that was located
nearby.
Defendant was convicted of receiving stolen property. (Pen. Code, § 496, subd.
(a).)1 In a bifurcated proceeding, defendant admitted, after waiving his right to a trial,
like its predecessor CALJIC No. 2.15, “is an instruction generally favorable to
defendants; its purpose is to emphasize that possession of stolen property, alone, is
insufficient to sustain a conviction for a theft-related crime. [Citations.]” (People v.
Gamache (2010) 48 Cal.4th 347, 375.) The California Supreme Court explained that
CALJIC No. 2.15 “does not establish an unconstitutional mandatory presumption in favor
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of guilt [citation] or otherwise shift or lower the prosecution’s burden of establishing
guilt beyond a reasonable doubt [citations].” (Gamache, at p. 376.) The language in
CALCRIM No. 376 and CALJIC No. 2.15 is “linguistically synonymous” and
“constitutionally indistinguishable.” (People v. Solorzano (2007) 153 Cal.App.4th 1026,
1036.) As such, “CALCRIM No. 376 neither undermines the presumption of innocence
nor violates due process.” (Ibid.)
As previously stated, defendant further contends that CALCRIM No. 376 and the
cases upholding it are premised on the defendant making false statements or being silent
when confronted by authorities in order to allow for a permissive inference of guilt to be
made. He insists that since the facts of this case do not involve unexplained possession
or a false explanation of possession, the instruction that only “slight” evidence is
necessary to satisfy one of the elements of the offense – knowledge -- was improperly
given in this case.
While we may not agree with defendant that he never made any false statements
about his possession of the welding cables, we reject that a false statement or silence was
required. In People v. Anderson (2007) 152 Cal.App.4th 919, a case not discussed by
defendant, the defendant challenged the use of CALCRIM No. 376 on the ground, among
others, that it “‘misstate[d] 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.’” (Anderson, at p. 947.) The defendant relied on People v.
McFarland, supra, 58 Cal.2d 748, and Barnes v. United States (1973) 412 U.S. 837 (93
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S.Ct. 2357, 37 L.Ed.2d 380). The court rejected the defendant’s argument, holding that
neither McFarland nor Barnes supported the defendant’s position. The Anderson court
explained, “In McFarland, the court stated the following rule: ‘Where recently stolen
property is found in the conscious possession of a defendant who, upon being questioned
by the police, gives a false explanation regarding his possession or remains silent under
circumstances indicating a consciousness of guilt, an inference of guilt is permissible and
it is for the jury to determine whether or not the inference should be drawn in the light of
all the evidence.’ [Citation.] However, before stating the foregoing rule, the state high
court in McFarland acknowledged the more general rule that possession of recently
stolen property together with other corroborating evidence is sufficient to infer guilt.
[Citation.] The court went on to state that a failure to explain or a false explanation of
such possession is one type of corroborating evidence. In other words, the court in
McFarland did not say that possession must be unexplained to be relevant but that the
lack of an explanation for possession is one type of corroborating evidence sufficient to
support a conviction. [Citation.]” (Anderson, at p. 948.)
The Anderson court further held, “In Barnes, the jury was instructed that
‘“[p]ossession of recently stolen property, if not satisfactorily explained, is ordinarily a
circumstance from which you may reasonably draw the inference and find, in the light of
surrounding circumstances shown by the evidence in the case, that the person in
possession knew the property had been stolen.”’ [Citation.] The United States Supreme
Court found no problem in this instruction, which permitted an inference of guilt from
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unexplained possession. In other words, as in McFarland, possession of recently stolen
property coupled with a lack of explanation is sufficient to support conviction. However,
the court did not say this was the only acceptable type of corroborating evidence.”
(Anderson, supra, 152 Cal.App.4th at p. 948.)
Neither Barnes nor McFarland requires that a defendant’s possession of recently
stolen property be unexplained in order to give CALCRIM No. 376. This is only one
type of corroborating evidence that can be used to show knowledge of possession of
stolen property. Here, there was other corroborating evidence -- defendant’s willingness
to sell the cables for much less than they were worth, the fact that his friends immediately
left the scene upon Downing questioning them and the mere location of the expensive
cables near the location from which they were stolen -- to support instruction with
CALCRIM No. 376.
IV
REDUCTION TO MISDEMEANOR PURSUANT TO SECTION 17(B)
Defendant contends that the trial court (in denying his motion pursuant to section
17b to reduce his conviction for violating section 496, subdivision (a) to a misdemeanor)
erroneously determined that the value of the welding cables exceeded $950. Defendant
calculates the welding cables to be less than $950. Hence, he insists remand for
resentencing is required so the trial court can properly exercise its discretion with such
knowledge.
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A. Relevant Proceedings
Prior to the case going to the jury, defendant asked that the charge be reduced to a
misdemeanor because the value of the cables was less than $950. The trial court and the
People stated that such a threshold amount was not necessary for receiving stolen
property; it was for grand theft. It further stated the motion was premature since he had
not been convicted. It noted that, based on defendant’s record, it was unlikely to reduce
the charge to a misdemeanor.
Later, the trial court noted that section 496 had been amended so that if the value
of the property was less than $950, it was within the People’s discretion to choose to file
the charge as a misdemeanor. However, the People were not mandated to file a
misdemeanor if the value of the property was less than $950. The trial court was
convinced the welding cables were worth more than $950 but would entertain a section
17b motion at the time of the sentencing.
At the time of sentencing, defendant argued that a felony conviction for possession
of stolen property required that the property value exceed $950. He argued that the
cables, when they were brand new, were worth $1,300 for 700 feet, and the ones taken
were old. Thus, the value of the welding cables was below the $950 threshold. The
People argued the cables were worth more than $950 and that, based on defendant’s
extensive record, it was not appropriate to reduce his conviction to a misdemeanor.
The trial court first noted that, “[i]f this was a first offense, it probably would have
been filed as a misdemeanor. It is not a first offense. [Defendant] has been going to
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prison regularly. He’s got six prison priors in less than 20 years. In fact, about 18 years.
It’s every three years he goes back to prison.” It then ruled, “The Court is satisfied that
the value of the property exceeded $950 and, therefore, the felony prosecution is
appropriate.”
B. Analysis
Receiving stolen property is a “wobbler” offense because it is punishable by either
imprisonment in a state prison or in a county jail. (§ 496, subd. (a).) Section 496,
subdivision (a) was recently modified to include language that if the value of the property
does not exceed $950, the district attorney can choose, within its discretion, to file the
offense as a misdemeanor. (§ 496; Stats.2009-2010, 3rd Ex.Sess., ch. 28, § 23, eff. Jan.
25, 2010.) Here, the People charged defendant with a felony violation of section 496,
subdivision (a).
Under section 17b, the trial court can reduce a felony offense to a misdemeanor.
When exercising its discretion under section 17b, the trial court considers “‘the nature
and circumstances of the offense, the defendant’s appreciation of and attitude toward the
offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’
[Citations.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978 (Alvarez),
fn. omitted.)
Judges can consider the general objectives of sentencing as set forth in California
Rules of Court, rule 4.410. These objectives are: “(1) Protecting society; [¶] (2)
Punishing the defendant; [¶] (3) Encouraging the defendant to lead a law-abiding life in
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the future and deterring him or her from future offenses; [¶] (4) Deterring others from
criminal conduct by demonstrating its consequences; [¶] (5) Preventing the defendant
from committing new crimes by isolating him or her for the period of incarceration; [¶]
(6) Securing restitution for the victims of crime; [¶] and (7) Achieving uniformity in
sentencing.” (Cal. Rules of Court, rule 4.410(a)(1)-(7).)
We review the trial court’s denial of a motion to reduce the felony conviction to a
misdemeanor for abuse of discretion. (Alvarez, supra, 14 Cal.4th at p. 981.) “‘The
burden is on the party attacking the sentence to clearly show that the sentencing decision
was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.’
[Citation.]” (Id. at pp. 977-978.)
Here, the evidence was conflicting as to the value of the welding cables. Downing
first testified that 700 feet of new cable cost him $1,300. However, later, when asked
what 20 feet of welding cables would be worth, he estimated that 20 feet would be valued
at $50 or $60. Under this calculation (400 feet divided by 20 feet times $50), the value
would be $1,000. As such, the trial court could consider that the value of the welding
cables was more than $950 and could properly consider that evidence in refusing to
reduce the misdemeanor to a felony.
Moreover, even if the trial incorrectly valued the welding cables, it also considered
defendant’s extensive record in refusing to reduce the conviction to a misdemeanor.
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Defendant admitted he had committed all six of the offenses charged in the information,
and these convictions included one conviction for receiving stolen property and two for
receiving a stolen vehicle. Based on defendant’s record, the trial court did not abuse its
discretion by refusing to reduce the felony conviction to a misdemeanor.
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
RAMIREZ P. J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for receiving stolen property, holding that the trial court did not abuse its discretion in admitting a prior conviction or in denying the motion to reduce the felony to a misdemeanor.
Issues
Whether the trial court erred in admitting evidence of a prior conviction for receiving a stolen vehicle.
Whether the trial court erred in instructing the jury with CALCRIM No. 376.
Whether the trial court abused its discretion in refusing to reduce the felony conviction to a misdemeanor under Penal Code section 17, subdivision (b).
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court agreed to admit the certified prior conviction for the 2004 prior violation of section 496, subdivision (a) for possession of a stolen vehicle.”
“CALCRIM No. 376 neither undermines the presumption of innocence nor violates due process.”
“The trial court did not abuse its discretion by refusing to reduce the felony conviction to a misdemeanor.”