People v. Poliquin CA3
C093906
| Cal. Ct. App. | Mar 21, 2022Background
- Defendant was arrested after being seen removing a box from a Fig Lane storage unit; owner pinned defendant’s car and defendant fled on foot before being detained. Defendant told police he “found that stuff outside of the unit.”
- Property later identified as taken from an Olive Grove storage unit (located a few hundred yards away) was found in defendant’s car; the Olive Grove unit door was damaged.
- Jury convicted defendant of second-degree burglary of both Fig Lane and Olive Grove units and misdemeanor vandalism for the Fig Lane door; acquitted on Olive Grove vandalism. Defendant admitted a prior strike; court dismissed the strike as to one burglary.
- Trial court sentenced defendant to an aggregate 6 years 8 months (double one burglary term under the three strikes law, plus consecutive and concurrent terms) and announced restitution fines; the abstract of judgment also listed a theft fine (§1202.5), a court security fee (§1465.8), and a criminal conviction fee (Gov. Code §70373) that the court did not orally impose.
- On appeal defendant challenged (1) sufficiency of evidence for the Olive Grove burglary, (2) instructional errors (CALCRIM No. 361 and failure to define the target offense “theft”), (3) denial of mistrial after a witness mentioned excluded prior burglaries and muttered to defendant, and (4) sentencing and fee errors (Pen. Code §654 application and abstract fines/fees).
Issues
| Issue | People’s Argument | Poliquin’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Olive Grove burglary | Possession of recently stolen property plus temporal and spatial proximity to Fig Lane burglary and flight supports burglary conviction | Possession alone insufficient to prove entry; acquittal on Olive Grove vandalism shows lack of forced entry evidence | Affirmed: substantial evidence (possession, proximity, timing, flight) supports jury’s inference defendant entered Olive Grove unit to take property |
| Instructional error — CALCRIM No. 361 (failure-to-explain instruction) | Any error was harmless; instruction as given did not comment on failure to testify and jury was told some instructions may not apply | Instruction was improperly given because defendant did not testify and it allowed adverse inference from silence | Court agreed instruction should not have been given but found the error nonprejudicial under state harmless-error standards |
| Instructional error — failure to define target offense (“theft”) sua sponte | No duty to define theft here because term is commonly understood; if error, harmless | Court had duty under Hughes to define target offense elements; omission deprived jury of elements instruction | Court held error but deemed it harmless beyond a reasonable doubt because the contested issue was entry, not the mental state for theft, and the evidence made the intent clear |
| Mistrial motion after witness mentioned excluded prior burglaries and muttered to defendant | Stricken testimony and curative admonitions cured any prejudice; evidence of guilt was direct and strong | Witness’s repeated violations and hallway comment were incurably prejudicial; only mistrial would suffice | Denial of mistrial affirmed: trial court did not abuse discretion because strikes, admonitions, and the strength of other evidence cured prejudice |
| Sentencing and abstract corrections — §654 and fines/fees on abstract | People initially urged staying misdemeanor term but acknowledged §654 amendment gives court discretion; probation report included fines/fees | §654 required staying one of the punishments; court did not orally impose certain fines/fees so abstract must be corrected | Remand for resentencing so trial court can exercise discretion under amended §654; order the abstract corrected to omit the unpronounced theft fine (§1202.5), court security fee (§1465.8), and Gov. Code §70373 fee |
Key Cases Cited
- People v. Johnson, 26 Cal.3d 557 (1980) (standard for reviewing sufficiency of the evidence)
- People v. McFarland, 58 Cal.2d 748 (1962) (possession of recently stolen property with slight corroboration supports conviction)
- People v. Cortez, 63 Cal.4th 101 (2016) (limits on giving CALCRIM No. 361 when defendant testifies or could explain evidence)
- People v. Hughes, 27 Cal.4th 287 (2002) (trial court duty to define and instruct on elements of target offenses in burglary cases)
- People v. Corral, 60 Cal.App.2d 66 (1943) (harmlessness of omission to define theft where only one kind of theft was reasonably indicated)
- People v. Molano, 7 Cal.5th 620 (2019) (mistrial standard when witness volunteers inadmissible matter)
- People v. Navarrete, 181 Cal.App.4th 828 (2010) (presumption that curative instruction will be followed)
- In re Estrada, 63 Cal.2d 740 (1965) (ameliorative criminal statutes apply retroactively to nonfinal cases)
- People v. Mitchell, 26 Cal.4th 181 (2001) (oral pronouncement controls and appellate courts may correct abstracts of judgment)