Filed 10/15/14 P. v. Espinoza CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent,

v. AGUSTIN ARMAREZ ESPINOZA, Defendant and Appellant. G048522 (Super. Ct. No. 10CF2088)

O P I N I O N

Appeal from a judgment of the Supe rior Court of Orange County, John Conley, Judge. Reversed. Mark L. Christiansen, under appo intment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assist ant Attorney General, William M. Wood and Charles C. Ragland, Deputy Attorneys Ge neral, for Plaintiff and Respondent.
* * *2 Defendant Augustin Armarez Espinoz a admitted to killing his wife of 37 years, Marisela Espinoza, by bludgeoning her to death. Defendant was arrested and charged with violating section 187, subdivision (a), of the Penal Code 1 for unlawfully killing Marisela. During trial the People presen ted three theories of first degree murder: express malice with premeditation a nd deliberation, felony murder, 2 and murder while lying in wait. A jury convic ted defendant of first degree murder and the trial court
sentenced defendant to 25 years to life. Defendant appeals, alleging the m odified version of CALCRIM No. 376, possession of recently stolen pr operty as evidence of a cr ime, amounted to prejudicial error, because it created an in ference defendant was guilty of felony murder stemming from his possession of stolen property. We fi nd that the trial court erred in modifying the
instruction. We cannot find the error harm less because, despite the fact there is
substantial evidence defendant committed firs t degree murder under both the deliberate and premeditated and lying in wait theori es, we are unable to determine whether defendant was convicted under a legally valid or legally invalid theory. Therefore the judgment is reversed and remanded for retrial.
I
FACTS AND PROCEDURAL HISTORY Defendant’s life spiraled out of contro l beginning in 2008. His employer of 20 years relocated to Michig an. Rather than relocate , defendant stayed behind. He received 40 weeks’ pay, cashed out his 401( k) worth approximatel y $104,000, and began collecting unemployment. After a year of dr inking and gambling, the money was gone. By July 2010 unemployment checks stopped, defendant had a zero balance in his bank accounts, his credit card was in collections, a nd he had been caught pawning his family’s

1 All further statutory references are to the Penal code unless noted.

2 Defendant was not charged with robbery.3 possessions. To make matters worse, Marisela told defendant she wanted a divorce after discovering defendant’s secret cell phone cont ained sexually explicit text messages from other women. During the next two weeks, while defendant was moving out, Marisela slept on the floor in the spare room and defendant slept in the master bedroom. Sometime during the mornin g of July 28, 2010, de fendant killed Marisela while she slept by striking her on the head se ven times with a monopod (single pole used to support a camera). Defendant bagged his bloody clothes and the monopod, washed his hands, and threw the soap in th e trash. The parties agree th at sometime prior to leaving the house, defendant took Marise la’s purse and cell phone. On July 28, 2010, at approximately 5:57 a.m., defendant was captured on video at an ATM in Santa Ana, wearing a dark blue or black shirt, attempting to withdraw money from a joint ac count he shared with Marise la. Defendant used his own debit card, but the transaction was declined. Defendant testified he believed Marisela had
blocked his access to the account. He later found out his car d had been declined because it had not yet been activated. Defendant did not attempt any other tr ansactions with any
other cards at the Santa Ana ATM. About four hours later, defendant was captured on video at an ATM in San Bernardino, wearing a red shirt, attempting to withdraw money from an account Marisela
shared with her mother. He used Marisela’s debit card, which had been in her purse. After several failed attempts, defendant gain ed access to the acco unt and withdrew all available funds, totaling around $300.
Defendant drove back to his house to return Marisela’s cell phone, which he had been using to listen to voicemail mess ages left by concerned coworkers. He did
not check to see if Marisela was alive. La ter that evening, defe ndant drove to Mexico and discarded his bloody clothes, the monopod, and Marisela’s purse. He was arrested at the United States/Mexican border the next day, attempting to return to the United States, and charged with first degree murder.4 The prosecutor and defendant presen ted different timelines and motives explaining when and wh y defendant killed Marisela. De fendant’s version of events included his testimony Marisela initiated an argument around 12:30 a.m. which continued for approximately 40 minutes. Afterwards, Ma risela left the master bedroom for the spare room. Ten minutes later defendant entered the spare room with th e intent to talk to Marisela, but Marisela was already asleep. Defendant testified he was angry when he entered the room, but on a scale of one to 10, he was only about a six. Inexplicably, he picked up the monopod and bludgeoned Marise la to death. After the aforementioned cleanup, defendant left the residence and procee ded to visit the first ATM in Santa Ana. Defendant could not explain w hy or how he changed shirts between ATM visits. According to the prosecution’s versi on, defendant was upset his card was rejected from the Santa Ana ATM. Believi ng Marisela had blocke d his access to their joint account, defendant was furious and went home and killed Mari sela to obtain access to her debit card. The prosecutor alleges th e murder happened just after 6:00 a.m. and was motivated by defendant’s di re financial situation.
II
DISCUSSION We review the validity of ju ry instructions de novo. ( Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 831.) Defendant alleges the trial court improperly modified CALCRIM No. 376 to include felony murder. The modified instruction given to the jury is as follows: “If you conclude that the defendant knew he possessed property and you conclude that the pr operty had in fact be en recently stolen, you may not find felony murder in the course of a robbery based on those facts alone. However, if you also find that supporting evid ence tends to prove his guilt, then you may
conclude that the evidence is sufficient to prove he co mmitted felony murder in the course of a robbery. [¶] The supporting evid ence need only be slig ht and need not be enough by itself to prove guilt. You may co nsider how, where and when the defendant5 possessed the property, along with any other re levant circumstances tending to prove his guilt of robbery. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essen tial to that conclusion that the defendant is guilty of that crime has been prov ed beyond a reasonable doubt.” “Similar to its predecessor, CALJIC No. 2.15, CALCRIM No. 376 is based on a ‘long-standing rule of law [that] allows a jury to infer guilt of a theft-related crime from the fact a defendant is in possession of recently stolen property when coupled with slight corroboration by other inculpatory ci rcumstances [that] tend to show guilt.’ [Citation.]” ( People v. Lopez (2011) 198 Cal.App.4th 698, 709 fn. omitted.) California Supreme Court decisions have made it clear that issuing such an instruction for nontheft offenses is generally erroneous. ( People v. Montes (2014) 58 Cal.4th 809, 876 [error to give CALJIC No. 2.15 in conn ection with murder charge]; People v. Rogers (2013) 57 Cal.4th 296, 334 [murder and arson charges]; People v. Moore (2011) 51 Cal.4th 1104, 1131 [murder]; People v. Prieto (2003) 30 Cal.4th 226, 2 48-249 [murder].) The bench notes for CALCRIM No. 376 also suggest lim iting the instruction to theft and theftrelated crimes. The majority of CALCRIM No. 376 is an accurate statement of the law, even relating to charges of nontheft offenses. ( People v. Moore , supra , 51 Cal. 4th at p. 1130.) The instruction is gene rally favorable to a defendan t, because it emphasizes mere possession of recently stolen prop erty is not sufficient to sup port a finding of guilt, absent other supporting evidence. ( Ibid .) It is also accurate to inform the jury the supporting
evidence need not be sufficient to prove guilt by itself, because the supporting evidence is
combined with the in ference drawn from a defendant’s possession of the fruits of his crime. ( Id . at p. 1131.) The error in giving the CALCRIM No . 376 in connection with nontheft offense lies in the following language found in the instruction: “The supporting evidence need only be slight and need not be enough by itself to prove guilt.” Including this language when a nontheft offense is involved—here, murder—i s erroneous because6 it invites a jury to draw an inference of a defendant’s guilt of murder based on possession of recently stolen property and slight supporting evidence. ( People v. Moore , supra , 51 Cal.4th at p. 1131

. ) “Proof a defendant was in conscious possession of recently stolen property simply does not l ead naturally and logically to the conclusion the defendant
committed a murder to obt ain the property.” ( People v. Barker (2001) 91 Cal.App.4th 1166, 1176, fn. omitted; see also People v. Prieto , supra , 30 Cal.4th at p. 249.) The Attorney General argues felony murd er in the course of a robbery is a theft-related offense; therefore, it is not e rroneous to include fel ony murder in CALCRIM
No. 376. The Atto rney General cites People v. Harden , supra , 110 Cal.App.4th 848 in support. In Harden , the modified instruction for posse ssion 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 informa tion, that the murder of [the victim] was committed by the defendant duri ng the commission of the crim es 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, original italics.) The Harden court found no valid reason to preclude the instruction’s use regarding theft-related allegations when the a llegations included elements of robbery or burglary, because if properly worded, the in struction 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 synonym ous with a theft-related allegation. ( People v. Harden , supra , 110 Cal.App.4th 848.) Although Harden found no reason to preclude a properly worded CA LJIC No. 2.15 for use with theft-related allegations, our7 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, ki dnapping 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 instru ction, which includ ed all crimes and allegations, was erroneous. ( Id. at p. 876.) “We have held it is error for a court to instruct the jury with CALJ IC No. 2.15 for nontheft offenses. [Citation.]” ( 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 .) Furthermore, Harden is distinguishable. In Harden , the trial court specifically instructed the jury that defendant’s possession of stolen property plus slight corroborating evidence is suffi cient 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.) It was not modified to allow the jury to infer a murder oc curred, simply because defendant possessed a victim’s check card and jewelry. ( Id . at p. 849.) The instruction in
Harden is clearly and properly worded, therefor e, it is inapposite to the instruction
involved in the in stant matter. Modification of CALCRIM No. 376 to include murder, of any sort, is
erroneous. In People v. Moore , supra , 51 Cal.4th 1104, the California Supreme Court
held reference to murder in the modified CALJIC No. 2.15 instruction created harmless error. ( Id . at p. 1131.) The defendant and hi s accomplices killed two people while robbing their home. ( Id . at p. 1114.) The jury convicted the defendant of two counts of first degree murder, two counts of robbery, and one count of burglary. The instruction, as modified, contained the following language: “‘If you find that the defendant was in conscious possession of recently stolen property, the fact of such possession is not by itself sufficient to permit an infe rence that the defendant is guilty of the crimes charged.’”8 ( Id . at p. 1130.) The court held the instructi on, which contained the generalized reference to “crimes charged” rather than listing specific crimes , constituted error. “Crimes charged” could refer to murder, which was not considered a theft-related charge, even though it occurred in conjunction w ith the robbery and burglary. ( Id . at p. 1130.) Modifying CALCRIM No. 376 to include felony murder in the course of a robbery is problematic, especially in de fendant’s case. We know defendant killed Marisela and took her purse, but it was disput ed whether defendant killed Marisela in order to take her purse and whether he used force or fear in doing so. CALCRIM No. 376 invited the jury to infer the purse was stolen. Such an inference is problematic because a husband do es not necessarily steal his wife’s purse, simply by taking it. On appeal, defendant highlights the problems arising out of the robbery theory, but does not go so far as to allege a legally incorrect theory . While this issue has been waived (Cal. Rules of Court, rule 8.204 (a)(1)(B)), we nonetheless note the jury was not instructed regard ing the community property aspects of the property taken. Under the instruction given by the tr ial court—“[t]he supporting evidence need only be slight and need not be enough by itself to pr ove guilt”—left the jury free to infer Marisela’s purse was stolen while she was still alive and the th eft occurred during the killing. The modified inst ruction invited the jury to pr esume the word “guilt” referred to felony murder, which might have led the ju ry to take an impermissible short cut and conclude defendant was guilty of felony murder if he possessed stolen property. (See People v. Barker , supra , 91 Cal.App.4th at p. 1173.) Moreover, the instruction could be interpreted as stating the defendant may be fo und guilty of felony mu rder based on slight
evidence. At the very least, modifying CALCRI M No. 376 brings “c onfusion into an already complex area of law.” ( People v. Barker , supra , 91 Cal.App.4th at p. 1175.) The trial judge expressed reservations regarding the instruction on two separate occasions, calling the instruction “awkward.” The Peop le referred to it as a defendant friendly9 instruction. The trial judge stated, “It’s more [of a] Peopl e’s instruction probably” and said that he did not think “it add[ed] anyt hing to the jury.” Based on the surrounding
confusion and erroneous word ing we cannot conclude th e jury both understood and properly applied the instruction. The trial judge’s initial reservation was well-founded. It was erroneous to modify CALCRIM No. 376 as it was modified he re. Accordingly, we hold the trial court
erred. Defendant argues the error amounted to a constitutional violation of due process, assuming he was convicted under th e felony murder theory. The due process
clause under the Fifth and Fourteenth Amendments “‘pr ohibits the State from using evidentiary presumptions in a ju ry charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every esse ntial element of a crime.’ [Citation.]” ( People v. Moore , supra , 51 Cal.4th at p. 1131.) Defendant concedes
CALCRIM No. 376 does not lower the burden of proof via creation of a presumption for theft-related crimes. Instead, defendant ar gues the inclusion of murder, as the sole charged offense, reduces the burden of proof from beyond a reasonable doubt. Furthermore, defendant assert s the instruction excludes the requirement for a jury to consider other factors tending towards innocen ce. We find these arguments persuasive.
It is true our Supreme Court has consistently rejected arguments that an erroneous instruction improperly lighten s the state’s burden of proof. (See People v.
Montes , supra , 58 Cal.4th at p. 876; People v. Rogers , supra , 57 Cal.4th at p. 336; People
v. Moore , supra , 51 Cal.4th at p. 1133.) The infe rence does not “‘otherwise shift or lower the prosecution’s burden of estab lishing guilt beyond a reasonable doubt10 [citations].’ [Citation.]” ( People v. Rogers , supra , 57 Cal.4th at p. 336.) 3 The last
sentence of defendant’s modified instruc tion cautioned the jury, “Remember, you may not convict the defendant of any crime unless you are convinced that each fact essential
to that conclusion that the de fendant is guilty of that crim e has been proved beyond a reasonable doubt.” The trial judge instructed the jury on the proper burden of proof on
two other occasions and thorou ghly instructed the jury on the elements of first degree murder (including premeditati on and deliberation, lying in wait, and felony murder), second degree murder, voluntary ma nslaughter, and robbery. Defendant also argues the inst ruction created a constitutionally impermissible, permissive inference. The modification created a permissive inference. Although modifying CALCRIM No . 376 to include murder wa s erroneous because of the improper inference it invited, it does not mean drawing a connection between possession and guilt is irrational. (See People v. Moore , supra , 51 Cal.4th at p. 1132.) “Indeed, the United States Supreme Court has acknowledge d explicitly the logical connection between possession of the fruits of a cr ime and the possessor’s guilt of that crime, even when the crime at issue is a nontheft offense.” ( Ibid .) The Moore court found it was not irrational for the jury to draw an in ference of the defendant’s guilt of the murders from his possession of the victims’ property soon afte r their deaths and slight corroborating evidence, “especially wh en it is likely the same person or persons who killed the victims also took their belongings.” ( Ibid .)

3 The modified version of CALJIC 2.15 contained in Rogers was as follows: “‘[T]he fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crime of murder or arson. Before guilt may be inferred, there must be corroborating evidence tending to prove his guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant and inference of guilt. . . .’” ( People v. Rogers , supra , 57 Cal.4th at p. 334.) Defendant’s attempt at distinguishing Rogers’s instruction is unpersuasive, be cause of obvious similarities.11 Here an inference the ju ry was free to draw was i rrational when considered in light of the charge against him a nd the wording of th e instruction. We do recognize
there is substantial eviden ce defendant committed first degree murder. Defendant
admitted he killed Marisela a nd took her purse, which contai ned the ATM card he used to access the joint account Marisela shared with her mother. Surveillance video captured him attempting to access his account at the Sant a Ana ATM, either immediately before or immediately after he killed Marisela. After he killed Marisela, defendant was captured
on video at the San Bernardino ATM using Marisela’s card to withdraw the entirety of the joint checking account she shared with her mother. Despite the presence of
substantial evidence in the re cord to support de fendant’s conviction for first degree murder, there remains an insoluble problem.
In People v. Chiu (2014) 59 Cal.4th 155, the California Supreme Court, in affirming the reversal of th e defendant’s conviction for first degree murder, stated: “When a trial court instructs a jury on two th eories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid gr ound. [Citations.] De fendant’s first degree
murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the le gally valid theory . . . .” ( Id. at p. 167)
The situation here is similar. The ma nner in which the ju ry was instructed
about one of the theories pursued by the prosecution was legally incorrect. That instruction invited the jury to take an impermissible short cut and conclude defendant was guilty of felony murd er if he possessed stolen proper ty. Thus, despite overwhelming evidence to support first degree murder by express malice with premeditation and deliberation and lying in wait, we cannot affirm defendant’s conviction unless we conclude the jury did not base its ve rdict on a felony murder theory.
We find no basis in the record to conclude that the verdict was based on a legally valid theory. Under th ese circumstances, we must reve rse defendant’s conviction.12 III
DISPOSITION The judgment is reversed and remanded for retrial.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.