Filed 8/30/17 P. v. Barnes CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Ashlee Alexander Barnes appeals his conviction for receiving or possessing a stolen vehicle. (Pen. Code, § 496d, subd. (a).) He contends there is insufficient evidence that he either possessed the stolen vehicle or knew it was stolen. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On December 27, 2015, Arlisa Parish parked her black Nissan Infiniti in her garage and left the keys in the cup holder. The next morning she found her garage door open and the car missing. Parish had left the garage locked, and no one had permission to take her car. Parish reported the stolen vehicle to law enforcement.

At about 1:00 a.m. on New Year’s Day 2016, Thomas Drzemala, M.D., passed a vehicle on Excelsior Road. The vehicle was pulled over to the shoulder, the headlights were on, the driver’s door was open, and a man was standing just outside the driver’s door. The man had removed a backpack from inside the car and placed it on the ground. Drzemala did not see a passenger or anyone else in the area. Drzemala thought the person needed assistance, so he called 911.

California Highway Patrol (CHP) flight officer Allen Romero heard the report and surveyed the area. Within five minutes, Romero located the vehicle. An infrared camera showed the car had been recently operated or driven. Romero then began to look for the person who had been reported as walking away from the vehicle. He located defendant approximately half a mile away from the vehicle. There were no other people in the area. Romero called for a patrol vehicle.

CHP Officer Shane Canela and his partner responded to the call for a patrol unit and found the Nissan Infiniti on the shoulder with no occupants. The hood was still warm. The infrared camera showed the Infiniti’s hood was as bright as the patrol unit’s. The officers drove to defendant’s location, stopped and searched him. As the patrol vehicle approached defendant, he tossed something behind his back. After air patrol informed the officers defendant had tossed something away from him, they searched the area and found an Infiniti key fob on top of the dirt, about 20 to 30 feet from where they had contacted defendant. The officers arrested defendant and returned to the Infiniti. The key fob locked and unlocked the Infiniti. The car briefly started, but died because it was out of gas. There were cigarette ashes all over the inside of the car.

Defendant told the officers he was at a party with his friend and was walking back to his aunt’s house. On the walk, he passed the Infiniti, opened the door, and leaned in. It was cold, so he was thinking about sleeping in the car. He initially denied sitting in the car, but then acknowledged he had sat in the passenger seat of the car and smoked a cigarette. He saw the car keys were in the cup holder, but denied trying to start the car or driving the car. He thought about driving the car, but thought better of it. He took the keys with him out of habit. He said he tossed the keys away because “he had a feeling,” he knew they were not his, and previously he “had a close contact” and knew it was wrong.

Defendant’s prior “close contact” was a prior conviction in May 2015 for felony vehicle theft. Winston Auld had three cars. One of the cars, parked on the street, was broken into, and the garage door opener taken. The keys to two other cars, an Acura and a Dodge, were in a toolbox in his garage. Those two cars were stolen. The day after the vehicles were reported stolen, officers found the Dodge with defendant’s laptop inside. Defendant said he had been sitting in the car and knew it was stolen.

A complaint deemed an information charged defendant with automobile theft with a prior automobile theft conviction (Veh. Code, § 10851, subd. (a)—count one) and knowingly receiving or possessing a stolen vehicle with a prior vehicle theft conviction (Pen. Code, § 496d, subd. (a)—count two). The jury found defendant not guilty of auto theft and guilty of receiving stolen property. The trial court suspended imposition of sentence and placed defendant on five years of formal probation, and ordered him to pay various fines and fees.

DISCUSSION

Defendant contends there is not substantial evidence to support his conviction, as there is not evidence either that he possessed the car or that he knew it was stolen.

In assessing a claim of insufficiency of the evidence, the reviewing court’s task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. It is the jury, not the appellate court, which must be convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560]; People v. Johnson (1980) 26 Cal.3d 557, 578.) An appellate court must accept logical inferences that the jury might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before the judgment of the trial court can be set aside for insufficiency of the evidence, “it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429; see People v. Conners (2008) 168 Cal.App.4th 443, 453.)

A conviction for receiving stolen property requires that (1) the property was stolen; (2) the defendant knew the property was stolen; and (3) the defendant received, concealed, or withheld the property. (Pen. Code, §§ 496, subd. (a), 496d, subd. (a); People v. Grant (2003) 113 Cal.App.4th 579, 596.) Possession of the stolen property may be actual or constructive and need not be exclusive. (People v. Land (1994) 30 Cal.App.4th 220, 223 (Land).) “Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property.” (Id. at p. 224.) Constructive possession occurs when the defendant maintains control or a right to control the property; possession may be imputed when the property is found in a place that is immediately and exclusively accessible to the defendant and subject to his or her dominion and control, or to the joint dominion and control of the defendant and another. (People v. Rushing (1989) 209 Cal.App.3d 618, 621-622; see People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417.) “To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person.” (Sifuentes, at p. 1417.)

Possession may be established through circumstantial evidence and resulting reasonable inferences. “However, . . . mere presence near the stolen property, or access to the location where the stolen property is found is not sufficient evidence of possession, standing alone, to sustain a conviction for receiving stolen property.” (Land, supra, 30 Cal.App.4th at p. 224; see People v. Zyduck (1969) 270 Cal.App.2d 334, 336.) “Something more must be shown to support inferring of [dominion and control]. Of course, the necessary additional circumstances may, in some fact contexts, be rather slight.” (Zyduck, at p. 336.)

Here, contrary to defendant’s claim, there is more than defendant’s “mere presence” in the vehicle supporting the finding that he was in possession of the vehicle. Defendant was seen standing at the driver’s side of the vehicle, not the passenger’s side, removing his backpack from inside the vehicle. There were cigarette ashes all over the inside of the vehicle and defendant admitted he sat in the passenger’s seat and smoked a cigarette. The vehicle was out of gas, but had been recently driven and there was no one else in the area. Defendant also had the keys to the car. Evidence the defendant was the driver of a stolen vehicle is strong evidence of possession of that stolen property, and in some courts is prima facie evidence of possession. (See Land, supra, 30 Cal.App.4th at p. 223, fn. 2, citing, e.g., State v. McCoy (1989) 116 N.J. 293 [561 A.2d 582]; Irvin v. State (Ind.Ct.App. 1986) 501 N.E.2d 1139.) It was reasonable for the jury to infer from these circumstances that defendant had driven the car until it ran out of gas and maintained dominion and control of the vehicle by taking the car keys with him when he left the vehicle. These were sufficient additional circumstances to support a finding that defendant possessed the stolen vehicle.

“Knowledge that property was stolen can seldom be proved by direct evidence and resort must often be made to circumstantial evidence. . . . ‘Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt.’ ” (People v. Vann (1974) 12 Cal.3d 220, 224, quoting People v. McFarland (1962) 58 Cal.2d 748, 754 (McFarland).) Put another way, the “knowing possession by a defendant of recently stolen property raises a strong inference of the other element of the crime: the defendant’s knowledge of the tainted nature of the property. This inference is so substantial that only ‘slight’ additional corroborating evidence need be adduced in order to permit a finding of guilty.” (People v. Anderson (1989) 210 Cal.App.3d 414, 421 (Anderson).)

Courts have been reluctant to draw a bright line in terms of what constitutes “recently” stolen property. (See Anderson, supra, 210 Cal.App.3d at p. 422.) Whether the time period is “recent” is a matter to be decided by the trier of fact. (Ibid.) Here, the jury could reasonably find that Parish’s car was recently stolen, when it was found in defendant’s possession just days after it was stolen. (Ibid. [four and a half months from theft to possession deemed recent]; People v. Lopez (1954) 126 Cal.App.2d 274, 278 [nine-month timespan deemed recent].) Therefore, only slight corroboration was required to prove defendant’s guilt. (Anderson, supra, at p. 421.) Evidence indicating consciousness of guilt is conduct of the defendant which can provide that corroboration. (People v. Green (1995) 34 Cal.App.4th 165, 180-181.)

Defendant indicated he found the keys to the car in the car’s cup holder, precisely where Parish said she had left them when they were in her garage. Defendant initially denied being in the car at all, but then admitted to sitting in the passenger seat and smoking a cigarette. However, Dr. Drzemala saw him at the driver’s side door, not the passenger side. The jury could have reasonably found defendant made false statements to the police, indicating consciousness of guilt. (McFarland, supra, 58 Cal.2d at p. 755.) When defendant saw police, he threw the keys to the vehicle away. He said he threw the keys away because he had a bad feeling, knew they were not his, and knew it was wrong and a bad situation. Defendant’s statements and conduct were further evidence establishing consciousness of guilt. This evidence indicating consciousness of guilt combined with defendant’s possession of the recently stolen vehicle provides sufficient evidence to support the finding he knew the car was stolen.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

ROBIE , Acting P. J.

DUARTE , J.