Filed 7/6/17 P. v. Windham-Orebaugh CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
LATASHA WINDHAM-OREBAUGH,
Defendant and Appellant.

A148270

(Solano County
Super. Ct. No. FCR308924)


Latasha Windham-Orebaugh appeals from a judgment of conviction and sentence imposed after a jury found her guilty of receiving stolen property. (Pen. Code, § 496, subd. (a).) She contends the evidence was insufficient to support the conviction, because there was no substantial evidence that she possessed the property. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An information charged appellant with first degree residential burglary (§ 459), elder theft (§ 368, subd. (d)), receiving stolen property (§ 496, subd. (a)), and evading a peace officer (Veh. Code, § 2800.1, subd. (a)). The matter proceeded to a jury trial.
A. Prosecution Case
Around 11:00 a.m. on July 24, 2014, victim Mineola Fortson left her Suisun City home with the doors closed. Appellant and her sons, Kevin and Devon, knew Fortson because Fortson rented a house in Sacramento to appellant beginning in August 2013, and Kevin and Devon did yard work and odd jobs for Fortson at Fortson’s home.
Fortson Appellant, her sons, and their friend Hubert Calime did not have permission to be in her house that day.
On the afternoon of July 24, 2014, Fortson’s next-door neighbor, Brent Cornelius, saw an African-American male with an “Afro” in front of Fortson’s driveway. Cornelius called the police, told them the person did not belong in the neighborhood, and asked them to “cruise by” the residence.
A short time later, as Cornelius was about to leave in his car to take his family to a fair, he saw a younger Caucasian male, approximately five-feet, ten inches tall, “lollygagging” or walking extremely slowly. Suspicious, Cornelius pulled out of his driveway, drove down the street, and then circled back to his home.
By the time Cornelius returned to his driveway, a white Dodge Durango was parked across the street. Cornelius saw the African-American male and the Caucasian male running from Fortson’s garage or “driveway area;” one of them was carrying a pillowcase that appeared to be full. The Durango “flew up to the front of the house”—that is, it approached the house at a high rate of speed and stopped abruptly—and the two individuals “jumped in” with the pillowcase. The Durango then sped off, “peaking [at] 50[]” miles per hour, while Cornelius followed. The Durango went around another car that had stopped at a stop sign, “blew through the stop sign” without stopping, and entered Highway 12 in the direction of Fairfield. The Durango was “moving fast” on Highway 12—in fact, Cornelius’s wife informed him he was going 75 miles per hour, yet he was not catching up to the Durango. Cornelius told his wife to call 911 as he followed the Durango onto the I-80 freeway. After approximately 15 miles, Cornelius lost sight of the Durango near the North Texas Street exit.
Meanwhile, Officer Ron Aiello of the Suisun City Police Department had been dispatched to the call of “suspicious kids” in the neighborhood, and was told about the white Dodge Durango associated with them. Aiello entered the I-80 freeway and observed the Durango traveling in the fast lane and then move between lanes. He activated his emergency lights and siren and believed that the Durango would exit at the Pena Adobe off-ramp. Instead, the Durango moved from the slow lane to its left and then returned to the slow lane and pulled over to the shoulder about a half mile past the exit.
Officer Aiello and other officers conducted a “high-risk” traffic stop, removing the occupants of the Durango at gunpoint. Appellant was the driver, her son Devon was the front passenger, and her son Kevin and Kevin’s friend Hubert were in the rear seats. Appellant was searched, and no stolen property was found on her person or in the front driver or passenger areas. A pillowcase full of property and two metal lock boxes were found in the back luggage area, accessible from the rear seat of the car.
The recovered property was returned to Fortson, who estimated the total value of the jewelry, bonds, and other items taken from her residence to be $40,000–$50,000. An officer responding to Fortson’s residence observed that someone had entered by forcing open a door on the side of the garage. The house was in disarray, and a safe was open.
B. Defense Case
Appellant testified that she was disabled and suffered from manic depression, schizophrenia, HIV, shingles and fibromyalgia. Her sons, Kevin and Devon, were raised by, and continued to live with, appellant’s mother.
Appellant acknowledged that she had rented from Fortson since 2011. Appellant had problems with Fortson in 2014, when Fortson refused her request to purchase an air conditioner for the home. Appellant bought an air conditioner for $250 and deducted the money from her rent, but Fortson refused to accept the reduced payment.
Appellant offered her own version of the events of July 24, 2014. By appellant’s account, Kevin had asked her to give his friend Hubert a ride to Fairfield to collect money from Hubert’s cousin. In exchange, Hubert was going to pay appellant $100 for gas. Appellant agreed and, with Kevin and Devon, picked Hubert up from school in Sacramento and drove them towards Fairfield, with Kevin and Hubert providing directions. They arrived in Suisun City (not Fairfield), and appellant parked her car in a residential area. Hubert got out of the car and walked out of sight. After he was gone for 30 minutes, appellant told Kevin to find Hubert because she was ready to leave. After Kevin had been gone for 20 minutes, appellant drove in her car to find them, and eventually saw them running out of a garage towards her car. Hubert had a white pillowcase in his hands. The boys got into the Durango, and Hubert threw the pillowcase in the back of the car. Appellant asked Hubert what he had with him, and Hubert replied that his cousin did not have the money he owed, so Hubert took some of his cousin’s things instead.
Appellant claimed at trial that she did not know Fortson lived at the house, and she had always sent her rent checks to a post office box. When she saw a car following her, she was nervous because she did not know who it was or how to get out of the neighborhood, and she was worried that Hubert’s cousin was coming after them. When she was driving on the freeway and saw a police car behind her, it initially did not have its emergency lights on, and she kept changing lanes because traffic was heavy. Once the officer turned on the police car’s lights and siren, she changed lanes to find a safe place to stop but could not make the Pena Adobe exit. Then she pulled over and cooperated with the police.
Appellant denied there was any agreement that she would be the get-away driver for Kevin and Hubert. She denied being upset with Fortson, claiming she had resolved the matter by purchasing the air conditioner and deducting the money from her rent. She had suspected that “something wasn’t right” when Kevin and Hubert came running out of the yard and threw the pillowcase into the back of her car, but she “really didn’t know what was going on.” Appellant was upset that Kevin and Hubert had planned something and persuaded her to drive them to do it.
C. Jury’s Verdict and Sentence
The jury found appellant not guilty on the count one residential burglary charge and the count two elder theft charge. The jury found appellant guilty on the count three charge of receiving stolen property, and guilty of the lesser included offense of failure to yield to an emergency vehicle (Veh. Code, § 21806) with respect to count four. The jury also found true an allegation as to count three that the value of the stolen property was over $950.
The court denied probation and imposed the high term of three years on the receiving stolen property conviction. Two years of that term was suspended, with appellant to remain on mandatory supervision during that time pursuant to section 1170, subdivision (h)(5)(B). The court also imposed specified fees and granted credit for time served.
This appeal followed.
II. DISCUSSION
A conviction for receiving stolen property requires proof that (1) the property was stolen; (2) the defendant knew the property was stolen; and (3) the defendant had possession of the stolen property. (People v. Land (1994) 30 Cal.App.4th 220, 223 (Land).) Appellant contends there was insufficient evidence that she had possession of the stolen property.
Possession of stolen property may be actual or constructive and need not be exclusive. (Land, supra, 30 Cal.App.4th at p. 223.) “It is sufficient if the defendant acquires a measure of control or dominion over the stolen property.” (Id. at p. 224.) “[M]ere 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.” (Ibid.; see People v. Zyduck (1969) 270 Cal.App.2d 334, 336 (Zyduck).) However, while something more than the defendant’s presence near the stolen property must be shown to support an inference of dominion or control for constructive possession, the needed additional circumstances may be slight. (Land, supra, 30 Cal.App.4th at p. 225; see People v. Lawrence (1980) 111 Cal.App.3d 630, 638 [“possession of recently stolen property is so incriminating that to warrant conviction there need only be slight corroboration in the form of statements or conduct of the defendant tending to show his [or her] guilt”], disapproved on other grounds in People v. Allen (1999) 21 Cal.4th 846, 864.)
Here, substantial evidence supports the conclusion that appellant possessed the stolen property (with the knowledge that the property was stolen). Appellant was the driver of the vehicle from which the stolen property was recovered. She had a dispute with the owner of the property, victim Fortson, whose refusal to install an air conditioner in appellant’s residence forced appellant to buy one herself. Appellant’s sons worked at Fortson’s residence, so they knew where Forston lived (even if appellant did not). Appellant drove 50 miles to Suisun City with her sons and Hubert, and ended up stopping within a block of Fortson’s home. After letting Hubert and Kevin out of her car and waiting around the corner from Fortson’s home for a while, appellant arrived in front of Fortson’s house just as the youths were observed running from the house with a pillowcase containing items they did not have when they got out of appellant’s car. Appellant saw the pillowcase and allowed them to get into her car with it. She then drove off and fled the scene, going around a car at an intersection and failing to stop at a stop sign, and travelling for miles at a high rate of speed. When a police vehicle came up behind her on the freeway with its emergency lights and siren activated, appellant failed to pull over promptly.
From this evidence, it could reasonably be inferred that appellant knew about the theft from Fortson’s residence and exercised dominion and control over the contents of the pillowcase in her car. (See People v. Young (1992) 11 Cal.App.4th 1299, 1307; People v. O’Dell (2007) 153 Cal.App.4th 1569, 1577.) And although appellant claimed at trial that she did not know that the house from which her son and his friend were running belonged to Fortson, that she only suspected something was wrong, and that she had an excuse for her flight, the jury could have determined from her demeanor and testimony that she was not telling the truth.
As appellant acknowledges, the court in People v. Martin (1973) 9 Cal.3d 687 (Martin) found that substantial evidence did support the defendant’s conviction for receipt of stolen property based on a machine found in the rear of his own car. (Id. at p. 695.) The court concluded that possession of the stolen machine was established because it was not only found in the rear of the defendant’s vehicle, but it was placed there in the defendant’s presence. (Id. at pp. 695–696.) And that is exactly what happened here: appellant’s son and his friend put the pillowcase of pilfered goods into appellant’s car in her presence, and by appellant’s admission she was told the pillowcase contained property that belonged to someone else.
Appellant observes that the court in Martin also ruled there was no evidence establishing the defendant’s possession of the stolen machines found in the back of another person’s car, noting that “[m]ere access or proximity to stolen goods is not enough to infer possession.” (Id. at p. 696.) But that aspect of Martin is inapposite, since the pilfered goods in this case had been placed into appellant’s own car.
Appellant’s reliance on People v. Myles (1975) 50 Cal.App.3d 423 and Zyduck, supra, 270 Cal.App.2d 334 is similarly misplaced. Those cases involved whether a passenger in a car possessed stolen property that was found in the car. (Myles, at p. 429; Zyduck, at p. 336.) The question here is whether appellant, the owner of the car, possessed stolen property that she saw her son and his friend place into her car.
Appellant contends there was no evidence she was engaged in a common criminal mission with her son and his friend, because the jury acquitted her of the burglary and elder theft counts even though the prosecution argued she was liable for those crimes as an aider and abettor. However, the jury’s decision not to convict on the other counts cannot be used to impeach its verdict on count three where, as here, there is substantial evidence sufficient to convict on count three. (People v. Pahl (1991) 226 Cal.App.3d 1651, 1656–1657; see § 954.)
Appellant fails to establish error.
III. DISPOSITION
The judgment is affirmed.




NEEDHAM, J.



We concur.




JONES, P.J.




SIMONS, J.