P. v. Roberts

Filed 10/16/06 P. v. Roberts 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, Melinda J. Lasater, Judge. Affirmed.

A jury convicted Colvin Roberts of receiving stolen property (Pen. Code,^[1] § 496, subd. (a); count 2); and being an accessory after the fact (§ 32; count 3), but acquitted him of grand theft (§ 487, subd. (a); count 1). The jury further found true Roberts's prior strike conviction allegation. The court sentenced Roberts to prison for 32 months, consisting of the lower term of 16 months on count 2, doubled by his prior strike. Sentence on count 3 was stayed under section 654 and restitution orders were made.

Roberts appeals, contending: (1) the jury's finding that he received stolen property should be reversed because it is not supported by substantial evidence; and (2) the jury's finding that he was an accessory after the fact should be reversed because a person cannot be convicted both of receiving stolen property and of being an accessory after the fact to the theft of that same property. On this record, these arguments have no merit and we affirm the judgment.

FACTUAL BACKGROUND

On January 2, 2005, Bret Oliphant attempted to leave a Costco located in Carmel Mountain Ranch with a shopping basket containing a liquid crystal display monitor, DVD player, clothing, and food items. When Oliphant approached the store exit, he met Jonathan Salas, a Costco store employee, who asked to see a receipt. Oliphant refused to produce a receipt, saying his wife had it. Salas asked Oliphant to remain at the door while Salas attempted to contact a store manager. Instead, Oliphant left the store and walked around the parking lot.

Two Costco managers, Nicole Mabray and Tim Goodman, and Jonathan Rishebarger, a store security employee, followed Oliphant into the parking lot. Oliphant was heard speaking into a cell phone, "Where are you?" and "Okay, all right, I think I see you now." Oliphant then walked towards Roberts's car. Roberts was sitting in the driver's seat.

Once Oliphant was at the car, Roberts opened the driver's side front door and looked back toward him. Oliphant opened the driver's side rear door and began placing the items from the cart in the car. The three employees, all of whom were wearing Costco name tags, repeatedly asked Oliphant for a receipt while the driver's side rear door was open. Oliphant responded to these requests by using profanity in a loud voice. Roberts was sitting in the driver's seat during this entire exchange. At one point, Ms. Mabray was standing about three feet away from Roberts when she asked Oliphant for a receipt and told him the police were on their way.

After Oliphant put the items from the cart into the car, he walked around the back of the car and got into the front passenger seat. Goodman stood behind the car with the shopping cart in an attempt to prevent Roberts from driving away before the police could arrive. As Roberts backed the car out of the parking space, Goodman had to step aside in order to avoid being struck. Roberts then began to pull forward. Mabray told Roberts that he "didn't want to get in trouble for his buddy." Mabray testified that Roberts's window was down when she said this. She then had to step aside to avoid being struck as Roberts drove out of the parking lot.

The license plate of the car was recorded and provided to the police. The parties stipulated that Roberts was the registered owner of the car.

In the information charging Roberts with three offenses, his codefendant Oliphant was also charged with grand theft under section 487, subdivision (a). Roberts was tried separately.

DISCUSSION

I

EVIDENCE OF RECEIVING STOLEN PROPERTY

Roberts contends his conviction for receiving stolen property should be reversed because there was no substantial evidence to prove that he knew the property had been stolen, a necessary element of section 496, subdivision (a).

A

When reviewing a claim of insufficiency of the evidence, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt of the charged offense. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Hatch (2000) 22 Cal.4th 260, 272.) Evidence is substantial when it is reasonable, credible, and of solid value. (Kraft, supra, 23 Cal.4th at p. 1053.) Before a judgment of conviction may be set aside for insufficiency of the evidence, " 'it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached' " by the trier of fact. (People v. Fowler (1987) 196 Cal.App.3d 79, 89, quoting People v. Newland (1940) 15 Cal.2d 678, 681.)

To prove a person received stolen property under section 496, subdivision (a), the prosecution must show: (1) the person received property which had been stolen or obtained by theft, or concealed or withheld, or the person aided in concealing or withholding property from the owner which had been stolen or obtained by theft; and (2) the person actually knew the property was stolen or obtained by theft at the time he received, withheld, concealed or aided in concealing or withholding the property from the owner. (CALJIC No. 14.65.)

Establishing the knowledge element of an offense is normally proved by inferences from circumstantial evidence. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1019.) When possession of stolen property is accompanied by suspicious circumstances, a jury is justified in finding the goods were received with knowledge that they had been stolen. (People v. Lyons (1958) 50 Cal.2d 245, 258, overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 32.) Such knowledge is shown by facts that would have been sufficient (1) to bring to the knowledge of a person of ordinary intelligence the fact that the property had been stolen or (2) to arouse a suspicion that its presence was due to a "criminal agency." (People v. Beck (1945) 71 Cal.App.2d 637, 640.) Knowledge need not be actual and positive; rather, it can be inferred from surrounding circumstances and conditions. (People v. Boyden (1953) 116 Cal.App.2d 278, 287-288.)

B

The record clearly shows Roberts had possession of the stolen property because it was placed in his car while he sat in the driver's seat. The circumstances surrounding Roberts's possession were such that at a minimum, a person of ordinary intelligence would have been suspicious that the property was stolen. Three Costco employees testified that while Oliphant was placing the stolen property in the car, they repeatedly asked him for a receipt and said the police were on their way. These statements were made within a few feet of Roberts. Numerous attempts were made to try and prevent Roberts from leaving and he sped away from the scene. While standing in front of the car, Mabray told Roberts he did not want to "get in trouble" for his friend, suggesting that if he drove away, he would "get in trouble." These facts were sufficient for the jury to find that Roberts knew the items in his car were stolen. Substantial evidence established that Roberts knew the items placed in his car were stolen, and thus in possession of stolen property.

II

RECEIVING STOLEN PROPERTY AND ACCESSORY CONVICTIONS

Citing People v. Prado (1977) 67 Cal.App.3d 267 (Prado), Roberts contends his conviction for accessory after the fact under section 32 must be reversed because, as a matter of law, he cannot be convicted of both receiving stolen property and being an accessory after the fact to the theft of that same property.

In Prado, supra, 67 Cal.App.3d 267, the defendant was convicted of armed robbery and of being an accessory after the fact to the same robbery, by aiding his codefendant in escaping arrest. (Id. at p. 270.) The court reversed the defendant's conviction of accessory after the fact because the same acts were relied upon to prove he committed both the offenses of robbery and accessory after the fact. (Id. at p. 274.) The court held that where the same acts are relied on for both a conviction as a principal and a conviction as an accessory, the intent required to be an accessory is mutually exclusive from the intent and state of mind required to be a principal. (Id. at p. 273.) The court reasoned that, as defined by section 32, an accessory after the fact "commits an offense separate and distinct from the crime of the principal." (Id. at p. 271.)

In Prado, supra, 67 Cal.App.3d 267, the court further distinguished the intent necessary to be an accessory from the intent required to be a principal to a robbery offense. The court noted, to be an accessory, a person must knowingly aid a felon in escaping arrest. However, to be a principal to a robbery, a person must have the intent to permanently deprive an owner of his property. (Id. at p. 273.) Because these two crimes require two different states of mind, the single act of robbery could not be the basis of the accessory conviction. (Ibid.) However, Prado said nothing about a nonprincipal to an offense being convicted of a charge of accessory after the fact.

The holding in Prado, supra, 67 Cal.App.3d 267, has been limited to cases in which the defendant's convictions as principal and accessory are based on the same act or acts. Prado has not been followed where the defendant's convictions as principal and accessory were based on two different and distinct acts. For example, in People v. Riley (1993) 20 Cal.App.4th 1808, the defendant and a companion drove to a motel and the companion shot and killed a person. The next day, the defendant gave the gun to another person for disposal. The defendant was convicted of being an accessory to murder, and in a subsequent trial (after a mistrial), he was convicted of second degree murder. (Id. at pp. 1810-1812.) The defendant appealed and, relying on Prado, supra, 67 Cal.App.3d 267, contended his conviction of accessory to murder precluded conviction of second degree murder. (Riley, supra, at p. 1813.) The court rejected defendant's argument, affirmed both convictions, and held that "the offenses of principal and accessory, and the states of mind required to be found guilty of each, are not mutually exclusive." (Ibid.)

Riley, supra, 20 Cal.App.4th 1808 is distinguishable from Prado, supra, 67 Cal.App.3d 267, because Riley's conviction as a principal and his conviction as an accessory depended upon two entirely different acts. (Riley, supra, at p. 1814.) The defendant in Riley aided and abetted murder by obtaining a gun, giving it to the shooter, and driving the shooter to the crime scene. These acts made him liable as a principal to murder. His separate act of giving the gun to a third party for disposal, in an effort to assist the shooter in evading arrest, made him liable for being an accessory to murder. (Id. at pp. 1814-1815.) The court reasoned that the "elements of the crime of murder are not inconsistent with the elements of the crime of accessory to murder." (Id. at p. 1813.)

The court in People v. Mouton (1993) 15 Cal.App.4th 1313 (disagreed with on other grounds in People v. Prettyman (1996) 14 Cal.4th 248), came to a similar conclusion. In Mouton, a man named Jackson went to an apartment with a gun and shot an innocent bystander. (Mouton, supra, at p. 1317.) Prior to the shooting, the defendant drove Jackson to the apartment. After the shooting, the defendant hid Jackson's jacket and gun from the police. The defendant was charged with murder and accessory to murder. To prove the murder charge, the prosecutor relied on the defendant's actions before and during the shooting, namely driving the shooter to the apartment and standing ready to assist with an additional weapon. (Id. at p. 1324.) To establish accessory to murder, the prosecutor relied on the defendant's entirely different act of concealing the shooter's jacket and gun from the police. (Ibid.) The court upheld both convictions, holding they "were not based on the same acts." (Ibid.) The court stated, "there is no bar to conviction as both principal and accessory where the evidence shows distinct and independent actions supporting each crime." (Ibid.)

Roberts's argument against his accessory conviction fails because receiving stolen property and accessory after the fact are two distinct crimes requiring two different intents. Two separate acts must occur for a person to be convicted of both. Roberts committed two separate acts. As recognized in Riley, "there is nothing inherently or necessarily inconsistent between an intent to deprive someone of property and the intent to aid a [felon] to escape [arrest]. Nothing prevents a person from harboring both intents; the intents are different, and not overlapping." (Riley, supra, 20 Cal.App.4th at p. 1814.)

Here, Roberts received stolen property by allowing Oliphant to place items in his car he knew were stolen. By allowing the stolen items to be placed in the car, Roberts knowingly aided in withholding the property from the owner. These acts constituted Roberts's completed offense of receiving stolen property. The second and distinct act that gave rise to accessory liability was Roberts driving away from Costco with Oliphant in the car, knowing that police were on the way. This act was done with the specific intent to help Oliphant avoid or escape arrest. The offenses of receiving stolen property and accessory after the fact are not mutually exclusive because a person can have the requisite intent to receive stolen property, and also at the same time, have the intent of aiding a felon in avoiding arrest, and act accordingly. (Riley, supra, 20 Cal.App.4th at p. 1814.)

We therefore reject Roberts's reliance on Prado, supra, 67 Cal.App.3d 267. In Prado, the defendant's convictions as a principal to armed robbery and being an accessory after the fact were based on the same acts. In contrast, Roberts's convictions of receiving stolen property and accessory after the fact were based on two separate and distinct acts. Therefore, the exclusivity rule of Prado does not apply in this case. We affirm Roberts's conviction of being an accessory after the fact because he was not convicted of being a principal to the same theft and because his conviction of accessory after the fact was premised on a different act than that which gave rise to his conviction for receiving stolen property.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.