Filed 10/24/14 P. v. Winston CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066681

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF1300562)

DAVID WINSTON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Charles J.

Koosed, Judge. Affirmed as modified.

         Corona & Peabody and Jennifer Peabody, 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 James H. Flaherty III, Deputy

Attorney General, for Plaintiff and Respondent.
       A jury convicted David Winston of one count of robbery (Pen. Code,1 § 211); two

counts of false imprisonment (§ 236) and one count of being a felon in possession of a

firearm (§ 29800, subd. (a)(1)). The jury also found true an allegation that Winston used

a firearm in the commission of the robbery and false imprisonments (count 2, § 12022.53,

subd. (b); count 4, § 12022, subd. (a)(1); count 6, § 12022.5).

       Winston admitted he suffered four prison priors (§ 667.5, subd. (b)) and one strike

prior (§ 667, subds. (b)-(i)). The court sentenced Winston to a determinate term of 31

years in prison.

       Winston appeals contending the trial court erred in instructing the jury regarding

the significance of recent possession of stolen property with CALCRIM No. 376. He

contends the portion of the instruction which permits corroboration with "slight

evidence" lessens the prosecution's burden of proof. He also contends the abstract of

judgment must be amended to correct error in the application of section 654. We will

join the chorus of courts which have soundly rejected the same challenge to the jury

instruction. We agree with Winston's position that the stayed sentence on count 6 was

improperly imposed as consecutive, but stayed. We agree with Winston's contention that

the issue of whether the trial court properly stayed the $10 crime prevention fine has been

forfeited by failure to raise it in the trial court. We will order the abstract of judgment

modified with regard to count 6, and order the $10 fine be stayed. Otherwise, we affirm

the balance of the judgment.



1      All further statutory references are to the Penal Code unless otherwise specified.
                                              2
                                 STATEMENT OF FACTS2

         On the morning of January 15, 2013, pharmacist James Chvat opened the Nuevo

Pharmacy. Shortly after that, Winston came into the store, pointed a pistol at Chvat and

ordered him to get on the floor. Winston bound the victim's hands with a cord and

demanded access to the store's controlled substances. Other robbers then came into the

store.

         About the same time, customer Elvia Paramo walked into the store. She was taken

to the back of the store and her hands were bound with zip ties. She was placed on the

floor next to Chvat.

         The robbers took about $4,000 worth of drugs, Chvat's wallet and $800 in cash.

         With the assistance of Chvat and a witness who saw the robbers leave the store,

and the store video, police were able to identify the getaway car and identify Winston as

the first robber. Police then arrested Winston.

         At the time of his arrest, Winston had a Nuevo Pharmacy pill bottle in his pocket.

         A search of the getaway car and Winston's home produced Winston's fingerprints

on the car. Police discovered the hat worn by the first robber as well as surgical gloves,

zip ties, ski masks and several Nuevo Pharmacy pill bottles.




2      Winston does not challenge either the admissibility or the sufficiency of the
evidence to support his convictions. Accordingly we will set forth only a summary of the
facts of the offenses.
                                              3
                                       DISCUSSION

                                              I

                                    CALCRIM NO. 376

       Winston contends the court erred in instructing the jury pursuant to CALCRIM

No. 376 in that it could draw an inference of guilt of robbery if it found Winston was

knowingly in possession of recently stolen property taken from that robbery. He

specifically argues the instruction's use of the term "slight evidence" to corroborate the

inference lessened the prosecutor's burden of proof. Winston seeks to distinguish

numerous cases which have held the use of the instruction does not lessen the burden of

proof, contending they did not consider his new argument that the use of the word

"slight" rendered the instruction invalid. Respectfully, the argument is not new and has

been properly rejected by the California courts.

                                      A. Background

       At the completion of the trial, without objection, the court gave CALCRIM No.

376. The instruction stated:

          "If you conclude that a defendant knew he possessed property and
          you conclude that the property had in fact been recently stolen, you
          may not convict the defendant of robbery based on those facts alone.
          However, if you also find that supporting evidence tends to prove his
          guilt, then you may conclude that the evidence is sufficient to prove
          he committed robbery.
          "The supporting evidence need only be slight and need not be
          enough by itself to prove guilt. You may consider how, where, and
          when the defendant possessed the property, along with any other
          relevant circumstances tending to prove his guilt of robbery.
          "Remember that you may not convict a defendant of any crime
          unless you are convinced that each fact essential to the conclusion
                                              4
           that the defendant is guilty of that crime has been proved beyond a
           reasonable doubt."

                                  B. Standard of Review

       The parties agree that appellate review of the language of a jury instruction is de

novo. We review the instruction, however, in light of the entire charge to the jury.

(People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574.)

       When we review a challenge to an instruction, we "assume that the ' " 'jurors [are]

intelligent persons and capable of understanding and correlating all jury instructions . . .

given.' [Citation.]" [Citation.]' Instructions should be interpreted, if possible, to support

the judgment rather than defeat it if they are reasonably susceptible to such

interpretation." (People v. Lopez (2011) 198 Cal.App.4th 698, 708 (Lopez).)

                                        C. Analysis

       CALJIC No. 215 is the predecessor to CALCRIM No. 376. In Lopez, supra, 198

Cal.App.4th at page 709, footnote 7, the court described the relationship to CALCRIM

No. 376.

           "CALJIC No. 215 informed the jury that, before a defendant's guilt
           could be inferred from his or her possession of recently stolen
           property, 'there must be corroborating evidence tending to prove the
           defendant's guilt. However, this corroborating evidence need only
           be slight, and need not by itself be sufficient to warrant an inference
           of guilt.' (CALJIC No. 2.15.) As can be seen, CALCRIM No. 376
           uses the term 'supporting evidence,' in place of 'corroborating
           evidence.' "

The relationship of the two instructions is important because courts have routinely upheld

CALJIC No. 215 as not violating due process and not reducing the prosecution's burden


                                              5
of proof. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 188-189; People v. Gamache

(2010) 48 Cal.4th 347, 376; People v. Snyder (2003) 112 Cal.App.4th 1200, 1226; People

v. Williams (2000) 79 Cal.App.4th 1157, 1173.)

       A recent discussion of CALCRIM No. 376 is found in Lopez, supra, 198

Cal.App.4th at pages 708-712. The court in Lopez again found the principles of CALJIC

No. 215 and CALCRIM No. 376 to be valid. The court found CALCRIM No. 376 did

not violate due process nor did it lessen the prosecution's burden of proof. We find the

court's discussion of this jury instruction persuasive and find it compels rejection of

Winston's arguments.

       Winston seeks to distinguish the unbroken string of California case law upholding

the use of CALCRIM No. 376 and its predecessor CALJIC No. 215. He contends the use

of the word "slight" in defining the quantum of "supporting evidence" is required in the

instruction. Winston is not correct. The use of the term "slight" has been repeatedly

upheld, most recently in Lopez, supra, 198 Cal.App.4th 698. There the court specifically

addressed the use of the term "slight." It said:

          "With respect to CALCRIM No. 376's predecessor, the appellate
          court in People v. Snyder (2003) 112 Cal.App.4th 1200 (Snyder),
          held that 'CALJIC No. 2.15 does not create an improper presumption
          of guilt arising from the mere fact of possession of stolen property,
          or reduce the prosecution's burden of proof to a lesser standard than
          beyond a reasonable doubt. Rather, the instruction "relates a
          contrary proposition: a burglary . . . may not be presumed from
          mere possession unless the commission of the offense is
          corroborated." [Citation.] The inference permitted by CALJIC No.
          2.15 is permissive, not mandatory. Because a jury may accept or
          reject a permissive inference "based on its evaluation of the
          evidence, [it] therefore does not relieve the People of any burden of
          establishing guilt beyond a reasonable doubt." [Citation.] Requiring

                                              6
          only "slight" corroborative evidence in support of a permissive
          inference, such as that created by possession of stolen property, does
          not change the prosecution's burden of proving every element of the
          offense, or otherwise violate the accuser's right to due process unless
          the conclusion suggested is not one that reason or common sense
          could justify in light of the proven facts before the jury. [Citations.]'
          [Citation.]

          "Similarly here, CALCRIM No. 376 makes it quite apparent that the
          'slight' supporting evidence is not to be considered in isolation, but
          together with all of the other evidence for purposes of determining
          whether there is proof beyond a reasonable doubt that the defendant
          committed robbery. [Citation.] The instruction expressly requires
          the jury to be 'convinced that each fact essential to the conclusion
          that the defendant is guilty of that crime has been proved beyond a
          reasonable doubt.' (CALCRIM No. 376.) Thus, CALCRIM No.
          376 does nothing to diminish the prosecution's burden of proof.
          [Citation.] (See, e.g., People v. Letner (2010) 50 Cal.4th 99, 189,
          112 Cal.Rptr.3d 746 [CALJIC No. 2.15 contains no suggestion that
          the jury need not find that all of the elements of the crime have been
          proved beyond a reasonable doubt].)" (Lopez, supra, at p. 711.)

The court in Lopez went on to discuss several federal appellate decisions on which

Winston also relies. The court said:

          "Nevertheless, appellant insists that a federal case supports his
          position; he cites to United States v. Gray (5th Cir.1980) 626 F.2d
          494 (Gray). Again, respectfully, we disagree. The case appellant
          relies on dealt with a conspiracy instruction tied to the substantive
          element of a conspiracy charge. In Gray, the jury was instructed on
          the elements of conspiracy and then told that ' "[t]he Government
          need only introduce slight evidence of a particular defendant's
          participation, once the conspiracy is established, but must establish
          beyond a reasonable doubt that each member had a knowing, special
          intent to join the conspiracy." ' (Id. at p. 500.) The Fifth Circuit has
          consistently condemned that instruction, finding that it lowers the
          reasonable doubt standard. (Ibid.; U.S. v. Brasseaux (5th Cir.1975)
          509 F.2d 157, 161, fn. 5 and cases cited there.) Here, the issue was
          whether guilt on a burglary charge may be inferred from the
          possession of recently stolen property along with other supporting
          evidence. Gray is not analogous or persuasive." (Lopez, supra, at
          pp. 711-712.)

                                              7
       As we have indicated we agree with both the holding and the reasoning of the

court in Lopez, supra, 198 Cal.App.4th 698 and find no error in the use of CALCRIM

No. 376 in this case.

                                            II

                             THE ABSTRACT OF JUDGMENT

       The record reflects considerable confusion as to whether count 6 and its

enhancement should be stayed pursuant to section 654 and if so whether it should be

concurrent or consecutive. Ultimately the court imposed an upper term sentence for

count 6 and the enhancement. Then, for reasons which are not clear, it ordered the full

term for count 6 to run consecutively, although stayed. Winston argues it was error to

impose and stay a full term consecutive sentence. We agree.

       "[T]he imposition of a 'consecutive' and 'stayed' sentence would be meaningless

because the stayed sentence would only operate if the principal count were eliminated.

Therefore, a stayed sentence cannot be consecutive to a principal sentence." (People v.

Cantrell (2009) 175 Cal.App.4th 1161, 1164.)

       Winston also argues the abstract must be corrected with regard to a $10 crime

prevention fine (§ 1202.5). The abstract reflects the $10 fine but does not show that the

trial judge ordered it stayed.3



3       We admit it is tempting to apply the doctrine of de minimis non curat lex to a
dispute as to whether a $10 fine can be stayed by the trial court, where the court has
imposed a 31-year prison term and a $2,500 restitution fine. We will, however address
the issue.
                                             8
       The court found Winston had the ability to pay a restitution fine of $2,500. When

the court reached the $10 fine it was confused. Stating he had never heard of this type of

fine the trial judge ordered it stayed.

       The respondent argues that once the court found Winston had the ability to pay,

the fine was mandatory because section 1202.5, subdivision (a) states that once ability to

pay has been determined "the court shall order the defendant to pay a fine of ten dollars

($10) in addition to any other penalty or fine imposed."

       The prosecutor did not object when the court ordered the $10 fine stayed. On

appeal, the respondent cites no authority that the court lacks the power to stay the fine.

Winston responds that we should treat the respondent's claim of error as forfeited for

failure to raise it in the trial court. We agree.

       The normal rule applied in appellate review is that a party cannot raise a claim of

error, it must be first raised in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354;

People v. Smith (2001) 24 Cal.4th 849, 852.)

       Given that the prosecution did not object to the stay of the $10 fine, and the sparse

nature of the briefing on the $10 fine, we order the trial court to amend the abstract of

judgment to reflect the $10 was stayed by the trial court.

                                          DISPOSITION

       The superior court is directed to amend the abstract of judgment to reflect the

sentence for count 6 is concurrent and stayed under section 654. The abstract shall also

be amended to reflect the $10 fine under section 1202.5 was stayed by the court. The



                                                9
court shall forward the amended abstract to the Department of Corrections and

Rehabilitation. In all other respects the judgment is affirmed.




                                                                         HUFFMAN, J.

WE CONCUR:



             BENKE, Acting P. J.



                        NARES, J.




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