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Name: People v. DeFrance
Case #: C055878
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/09/2008

Constructive possession for purposes of the robbery statute can be based on a special relationship, such as a familial relationship, which lets the victim stand in the shoes of the actual owner. Appellant was trying to steal a car. When the owner’s mother tried to stop him, he ran her over, and she died as a result of the injuries. A jury convicted appellant of murder with a robbery special circumstance. Appellant argued there was insufficient evidence of robbery to sustain the robbery special circumstance because the victim did not have actual or constructive possession of the car. The court found there was sufficient evidence of constructive possession based on the special relationship and responsibility of parents to protect goods belonging to their children who reside in their home. (People v. Gordon (1982) 136 Cal.App.3d 519.) Here the owner of the car lived with his mom, she helped him buy the car, she was named on the insurance, had access to the keys, and had driven it before. Under this special relationship, she qualified as a victim to the robbery.
Where a defendant stipulates the oral instructions need not be reported, the failure to record them is generally found not to be error. The trial court solicited a stipulation that the reporter need not transcribe the jury instructions. But, the instructions in the clerk’s transcript did not accurately reflect the instructions given to the jury in that there were two versions of CALCRIM No. 521 on degrees of murder. Appellate counsel tried to augment for the packet of instructions actually provided to the jury, but was told the set in the clerk’s transcript was the only set. Appellate counsel moved to settle the record, but could only partially do so because of faulty recollections, and it could not be clarified whether the instruction on degrees of murder contained the word “and” in a certain place. So, appellant argued the absence of a reliable record of instructions for appellate review denied him of due process. The Court of Appeal “strongly discourage[d] the practice of not recording the oral instructions given to the jury” because the practice only gives rise to the problems present here. But, the court noted that a stipulation not to record part of the trial generally forfeits a claim of inadequate record for appellate review. The court rejected appellant’s ineffective assistance of counsel claim for entering into the stipulation because it did not result in prejudice here.
The robbery instruction inadequately explained constructive possession as applied to the facts, but the error was harmless. At trial, defense counsel complained CALCRIM No. 1600 was not adequate to determine the issue of control of the property as related to the facts of this case, but the trial court did not amplify or clarify the instruction. The appellate court agreed the instruction inadequately explained the necessary right to control, but found the error harmless because constructive possession was established as a matter of law.
The trial court did not abuse its discretion in reopening jury selection after a juror who was originally accepted was excused, and where the jury had not yet been sworn. The jury was not immediately sworn after both sides had accepted the panel. Instead, after one of the accepted jurors told the court he would have a hard time serving, the parties agreed to let him go. Then, the court re-opened jury selection and allowed the prosecutor to use a peremptory challenge against another juror who was part of the original panel. Defense counsel objected arguing removal of one juror did not give the prosecution the chance to start excusing others. The Court of Appeal upheld the trial court’s ruling because there had been good cause to excuse one of the jurors and because the jury had not been sworn in.
The trial court did not abuse its discretion in imposing the maximum restitution fine despite appellant’s inability to pay the fine based on his LWOP sentence and current prison wages. Appellant argued it was an abuse of discretion to impose a $10,000 restitution fine because, based on the length of his sentence and on current prison wages it would take between 27 to 126 years to pay the fine. The court rejected the argument noting ability to pay is only one factor to consider when determining the fine. The other is the gravity and seriousness of the offense. (Pen. Code, § 1202.4, subd. (d).) Here, the special circumstances murder charge supported the court’s decision.
The parole-revocation fine (Pen. Code, § 1202.45) should not be imposed in an LWOP case. The Court of Appeal accepted the respondent’s concession that the parole-revocation fine should be stricken because this is an LWOP case. (People v. Jenkins (2006) 140 Cal.App.4th 805.)