Opinion
G056930
01-30-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDREA VANESSA APODACA, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16HF1601) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Andrea Vanessa Apodaca of two counts of receiving stolen property and the trial court sentenced her to probation. On appeal, Apodaca contends insufficient evidence supports her convictions. She also challenges a probation term prohibiting her from associating with convicted felons, which included her husband. Finding no error, we affirm the judgment.
FACTS
In August 2016, A.L.'s Newport Beach home was burglarized. A.L. reported the crime to the police and informed them a laptop was stolen. About one month later, K.K.'s Fullerton home was also burglarized. Again, K.K. reported the incident and stated a laptop was stolen.
In November 2016, S.L. returned to her Newport Beach home and noticed a black sport utility vehicle (SUV) parked in front of her house. She saw a woman sitting in the passenger seat. She saw a man, later identified as Apodaca's husband, Wendell Johnson, running from her backyard to the SUV with a yellow bag. S.L. recognized the bag as hers. Johnson climbed in the driver's seat of the SUV and S.L. asked him what he was doing. He told her to "fuck off," gave her the middle finger, and sped away.
When S.L. entered her house, she realized it had been burglarized. Intruders took jewelry, a computer, clothes, purses, and a gold Nixon watch. S.L. estimated the stolen items were worth about $20,000. She called the police and gave them the SUV's license plate number, which Johnson later admitted was his. S.L. also picked Johnson out of a photographic lineup as the SUV driver. S.L. did not identify Apodaca.
The day after the burglary, police searched Apodaca and Johnson's shared apartment. They recovered multiple stolen items from several burglaries. Police found S.L.'s jewelry boxes and jewelry in a laundry hamper. Police also found two laptops in end tables next to the television in the main family room. The laptops had been reported stolen after two other burglaries in 2016. Police found one laptop underneath the television stand in the master bedroom, which was not stolen property. Police also found prybars and screwdrivers that could be used as burglary tools to open windows. When police confronted Johnson, he was wearing the gold Nixon watch stolen from S.L.'s home. An analysis of Apodaca's cell phone showed the phone was within one-half mile of S.L.'s home at the time of the burglary.
In her defense as to counts 2 and 3, Apodaca claimed because the stolen computers were located inside end table drawers in the living room, there was no evidence she knew they were there. Apodaca noted she used her own laptop computer located in her bedroom. Apodaca and Johnson's roommate, Eric Brown, testified he committed the burglary of S.L.'s home.
The information charged Apodaca and Johnson with burglary (count 1; Pen. Code § 459-460, subd. (a) ); and two counts of receiving stolen property for the two recovered laptops (counts 2 & 3; § 496, subd. (a)). The jury found Apodaca guilty of counts 2 and 3, but not guilty of count 1. It found Johnson guilty of all counts.
All further statutory references are to the Penal Code. --------
In a bifurcated proceeding, the trial court sentenced Apodaca to three years of formal probation. Apodaca's probation conditions included that she serve 60 days in jail and not associate with convicted felons. Because Apodaca's husband, Johnson, was a convicted felon, the court created an exception for phone calls or letters written to him in prison, but did not allow Apodaca to visit him in prison.
DISCUSSION
Apodaca contends insufficient evidence supports her convictions on counts 2 and 3. She further asserts the probation term prohibiting her from visiting her husband in prison was unconstitutional. We find no error and affirm the judgment.
I. Sufficient Evidence Supports Apodaca's Convictions on Counts 2 and 3
"When reviewing a challenge to the sufficiency of the evidence, we ask "'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" [Citations.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for "'substantial evidence—that is, evidence which is reasonable, credible, and of solid value'" that would support a finding beyond a reasonable doubt. [Citation.]" (People v. Banks (2015) 61 Cal.4th 788, 804.) 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. [Citation.]" (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
The crime of receiving stolen property requires: (1) the property was stolen, (2) the defendant knew the property was stolen, and (3) the defendant received, concealed, or withheld the property. (People v. Grant (2003) 113 Cal.App.4th 579, 596.) For the third element, possession of the property may be actual or constructive. (People v. Land (1994) 30 Cal.App.4th 220, 223 (Land).) Constructive possession is found where a defendant maintains control or right to control the property. (People v. Rushing (1989) 209 Cal.App.3d 618, 621-622 (Rushing).) Furthermore, possession may be inferred when the property is found in a place immediately and exclusively accessible to the defendant, subject to the defendant's dominion and control, or subject to the joint dominion and control of the defendant and another. (Ibid.) While possession may be established by circumstantial evidence and the resulting inferences, "mere presence near the stolen property, or access to a location where the stolen property is found is not sufficient evidence of possession, standing along, to sustain a conviction for receiving stolen property." (Land, supra, 30 Cal.App.4th at p. 224.) "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." (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417.)
Apodaca claims she merely lived near the stolen property and asserts the prosecution failed to present sufficient evidence she maintained possession of the laptops. We disagree. In addition to the fact that the laptops were found in common areas of her shared apartment, the prosecution also presented evidence supporting an inference Apodaca possessed the stolen laptops. The prosecution alleged Apodaca was in the SUV during the November 2016 burglary, and cell phone analysis placed the phone within one-half mile of S.L.'s home at the time of the burglary. With this evidence, the jury could reasonably infer Apodaca knew the property was stolen and was complicit. Additionally, it was reasonable for the jury to impute knowledge of the contents of the end table drawers to Apodaca as a joint resident of the apartment. (See People v. Francis (1969) 71 Cal.2d 66, 71 ["'Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control' [citation] or which is subject to the joint dominion and control of the accused and another [citations.]".)
Apodaca relies on People v. Zyduck (1969) 270 Cal.App.2d 334 (Zyduck), People v. Martin (1973) 9 Cal.3d 687 (Martin), and People v. Myles (1975) 50 Cal.App.3d 423 (Myles), for the proposition that possession cannot be inferred based on her access to the living area where the stolen laptops were found. Those cases, however, are distinguishable. Each case dealt with a defendant charged with possession of stolen property in a car, where defendant did not own the car at issue. (Zyduck, supra, 270 Cal.App.2d at p. 336; Martin, supra, 9 Cal.3d at p. 696; and Myles, supra, 50 Cal.App.3d at pp. 426-427.)
So while the mere presence of a non-owner in or near a car is insufficient to establish a defendant was in possession of stolen property, that is not what occurred here. Apodaca was not merely present at the apartment where the stolen laptops were discovered, she lived there. She maintained dominion and control over items in the living area, including the computers, as it is an area "generally considered to be the domain of persons with possessory rights." (Rushing, supra, 209 Cal.App.3d at p. 622.) Additional evidence demonstrated Apodaca's cell phone was present at or near S.L.'s house while her husband burglarized it just a few months after the laptops were stolen. Based on the totality of the evidence, the jury could reasonably infer Apodaca had at least constructive possession of the stolen laptops found inside her own home.
II. The Probation Condition Was Proper
Apodaca also claims the trial court abused its discretion by imposing a probation condition that prohibited her from visiting her husband in prison. We see no error.
Trial courts have "broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. . . . A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . . ' [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486 (fn. omitted) (Lent).)
The trial court's probation condition prohibiting Apodaca from associating with convicted felons is valid under the Lent factors. The condition relates to the crime because the evidence showed Apodaca was aware of and complicit in her husband's burglary of S.L.'s home. The condition relates to conduct that is not criminal, in-person contact with a spouse, but does forbid conduct reasonably related to future criminality. The court noted husband's lengthy criminal record, as compared to Apodaca's minimal record. It also approved of Apodaca's plan to move to Bakersfield to distance herself from negative influences in her life. Presumably, contact with her husband was a negative influence the court sought to limit within the confines of the law.
The trial court recognized it could not prohibit Apodaca from communicating with her husband entirely, however, and created an exception for telephone and written correspondence between the spouses. Apodaca's right to associate with her husband in person may be legally curtailed by a probation condition designed to meet the ends of rehabilitation and protection of the public and is reasonably related to those ends. (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1356.) The condition at issue did just that. It did not restrict all means of contact between the spouses, but rather allowed for limited communication between Apodaca and her husband by telephone and letter. (See In re Peeler (1968) 266 Cal.App.2d 483, 493 [probation condition prohibited defendant from associating with drug users even where defendant's husband was a drug user.].) The court, knowing those particular forms of communication would be monitored by law enforcement, balanced the need for the spouses to interact while protecting the public and furthering Apodaca's rehabilitation. Monitored communications served the purpose of deterring Apodaca from planning or engaging in criminal activities with her husband. We find no error.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.