P. v. Inthavong

Filed 5/16/06  P. v. Inthavong CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, David  M. Gill, Judge.  Affirmed.

            A jury convicted Phonethip Pete Inthavong of five crimes, including conspiracy to commit vehicle theft.  He appeals only his conviction for conspiracy to commit vehicle theft, contending it must be reversed because the prosecution failed to prove the corpus delicti of the crime independent of his statements.  We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

            On the morning of April  26, 2005, Victor Rivera parked his 1990 Honda Accord at the University Towne Center (UTC) mall where he worked.  After finishing work, he discovered that his car was missing and contacted mall security.  A few minutes later, uniformed UTC security officer Joaquin Berrera arrived in a marked security vehicle, instructed Rivera to call the police and left to search for the Honda.  About 15 minutes later, Berrera found a car matching the Honda's description backed into a parking space in another area of the mall parking lot, with its engine running and an individual, later identified as Inthavong, reclined in the passenger seat.  Berrera retrieved Rivera, who identified his Honda.

            After radioing for assistance, Berrera ordered Inthavong out of the car and placed him under arrest.  When Inthavong told them that the car was his, Rivera stated that he owned the car and Inthavong replied that they had the " wrong person."   As Inthavong stepped out of the car, Berrera saw a pointy-edged object, later identified as a BMW car key, in Inthavong's left hand.  Inthavong refused to drop the key and a struggle ensued until Berrera was able to handcuff Inthavong's left hand.  Although Inthavong continued to struggle, Berrera handcuffed Inthavong's right hand with Rivera's assistance.  Inthavong then threw back his head, striking Berrera in the upper lip.  Berrera swung Inthavong face down onto the grass and held him down until additional security officers arrived.  As Berrera held him down, Inthavong stated " [y]ou know, this is what I do for a living" and demanded to be " let up."

            While other officers watched Inthavong, Berrera used Rivera's key to turn the engine off after noticing that there was no key in the ignition and the car was in " drive," with the parking brake engaged.  Berrera testified that while working as a security officer he had found five or six cars with their engines running, in " drive" and with the parking brake engaged and all the cars were later identified as stolen.  Rivera also noticed that his car stereo had been stolen.

            San Diego Police Officer Angela Zdunich-Goldman arrived at the scene to take a stolen vehicle report.  She searched Inthavong and found a glass pipe encrusted with what appeared to be methamphetamine residue and six car keys to different types of vehicles, one of which was " shaved."   Inthavong told Officer Goldman that the keys were his, he used them to get into cars where he worked as a mechanic and a friend had given him the altered key to hold onto.  Officer Goldman testified that the altered key could be used to gain easy access to foreign vehicles without damaging the vehicle and mechanics did not use such keys.  Inthavong admitted owning the pipe and claimed that the BMW key belonged to a car he had just purchased.  Inthavong also stated that his friend stole the Honda and its stereo and went to get a shopping bag while he waited in the car and that they planned to drive the Honda to find a better one to steal.

            An information charged Inthavong with auto theft, receiving stolen property, conspiracy to commit auto theft, battery and possession of burglary tools and narcotics paraphernalia.  It also alleged that he had three prior felony convictions for vehicle theft and four prison priors.  A jury found Inthavong not guilty of receiving stolen property, but guilty on all remaining counts and the trial court later found true all the special allegations.  The trial court stayed the three year upper term on the conspiracy to commit auto theft count under Penal Code section 654 and sentenced Inthavong to a total of six years in prison.  (All undesignated statutory references are to this code.)

DISCUSSION

            Inthavong asserts that his conviction for conspiracy to commit auto theft must be reversed because the prosecution failed to prove the elements of the crime of conspiracy independent of his admissions in violation of the corpus delicti rule.  Specifically, he claims the prosecution failed to provide corroborating evidence of an agreement and an overt act in furtherance of the conspiracy independent of his statements.  We disagree.

The corpus delicti, or the body or elements of a crime, consists of the occurrence of injury, loss, or harm to someone, and a criminal agency that has caused the injury, loss, or harm.  (People v. Alvarez (2002) 27 Cal.4th 1161, 1168 (Alvarez).)  The prosecution must establish the corpus delicti independent from the admissions of the defendant, thus assuring that the accused does not admit to a crime which did not occur.  (Ibid.)  The identity of the perpetrator is not part of the corpus delicti and the prosecution need only produce independent evidence to show that a crime was committed by someone.  (People v. Ochoa (1998) 19 Cal.4th 353, 405.)

The independent proof necessary to satisfy the corpus delicti rule may be circumstantial and need not be beyond a reasonable doubt; it is sufficient if it permits an inference of criminal conduct, although a noncriminal explanation may also be plausible.  (Alvarez, supra, 27 Cal.4th at p. 1171.)  The amount of independent proof required has been described as " quite small" (People v. Jones (1998) 17 Cal.4th 279, 301-302) and the prosecution only need make a prima facie showing permitting a reasonable inference that a crime was committed; the inference need not be the only, or even the most compelling, one.  (Ibid.)  Once the corpus delicti is established, however, the defendant's statements become admissible on the question of the defendant's guilt.  (People v. Ochoa, supra, 19 Cal.4th at pp. 404-405.)

Conspiracy consists of an agreement by two or more persons to commit a crime coupled with an overt act by one of the conspirators in furtherance thereof.  (§§  182, subd. (a)(1), 184.)  A conspiracy may be proven from " circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.  [Citation.]"   (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.)  The corpus delicti of conspiracy consists of evidence sufficient to infer an agreement to commit a crime and an overt act in furtherance of the agreement.  (People v. Muniz (1993) 16 Cal.App.4th 1083, 1087-1088.)

Here, there was sufficient evidence, independent of Inthavong's statements, showing he and another individual entered into an agreement to commit auto theft accompanied by some overt act.  Berrera found Inthavong in the passenger seat of a car that was not his, with no key in the ignition, the engine running and backed into a parking space.  From this evidence one can infer that Inthavong was waiting for his cohort to return in order to make a quick getaway.  The car stereo was also missing, suggesting that Inthavong's cohort took it.  It is unlikely that Inthavong, if working alone as suggested, went to the trouble of removing the stereo to only throw it away.  The jury could also reasonably infer that Inthavong went to the mall with his cohort to steal a car because he possessed keys to different types of cars, including an altered key typically used to enter foreign vehicles without damage.

Because the prosecution presented a sufficient prima facie case that Inthavong conspired to commit auto theft, Inthavong's admission to Officer Goldman that his friend stole the Honda and they planned to drive it to find a better car to steal could be considered by the jury in determining whether the prosecution met its burden of proving the crime beyond a reasonable doubt.  (People v. Ochoa, supra, 19 Cal.4th at pp. 404-405.)  Moreover, the trial court properly instructed the jury that a finding of guilt could not be predicated on the defendant's statements alone.  (Alvarez, supra, 27 Cal.4th at p. 1170.)  We must presume that the jury understood and followed this instruction.  (People v. Yeoman (2003) 31 Cal.4th 93, 139.)

DISPOSITION

            The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

   McCONNELL, P. J.

   HUFFMAN, J.

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