People v. Harden

In People v. Harden (2003) 110 Cal.App.4th 848, the modified instruction for possession of stolen property included murder during the commission of robbery and burglary: "'If you find that the defendant was in conscious 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 crimes of robbery and burglary, as alleged in counts 2 and 3 of the information, and that the allegations alleged in count 1 of the information, that the murder of the victim was committed by the defendant during the commission of the crimes of robbery and burglary. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant's guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. . . .'" (Id. at pp. 855-856.) The Harden court found no valid reason to preclude the instruction's use regarding theft-related allegations when the allegations included elements of robbery or burglary, because if properly worded, the instruction would benefit the defendant by warning the jury not to infer the existence of the element of robbery or burglary from the defendant's possession of stolen property. (Id. at p. 857.) A theft-related offense is not synonymous with a theft-related allegation. (People v. Harden, supra, 110 Cal.App.4th 848.) Although Harden found no reason to preclude a properly worded CALJIC No. 2.15 for use with theft-related allegations, our Supreme Court has held otherwise. (People v. Montes, supra, 58 Cal.4th at p. 876.) A jury found the defendant guilty of first degree murder, kidnapping during the commission of a carjacking, carjacking, and found true the special circumstance allegation that murder was committed during the commission of a robbery. (Id. at p. 819.) The California Supreme Court found the instruction, which included all crimes and allegations, was erroneous. (Id. at p. 876.) "We have held it is error for a court to instruct the jury with CALJIC No. 2.15 for nontheft offenses. " (Ibid.) The court found the error harmless because "the prosecutor properly directed the jury to apply CALJIC No. 2.15 . . . to the theft elements of robbery or carjacking, which supported a theory of felony murder." (Ibid.) In Harden, the trial court specifically instructed the jury that defendant's possession of stolen property plus slight corroborating evidence is sufficient to warrant an inference of defendant's guilt of the crimes of robbery or burglary. (People v. Harden, supra, 110 Cal.App.4th at pp. 855, 859.)