Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC062618C
Ruvolo, P. J.
Appellant was convicted by a jury of burglary and receiving stolen property, based largely on the testimony of an accomplice. On appeal, she argues that the accomplice’s testimony was not sufficiently corroborated to support her conviction, and that her motion for acquittal at the close of the prosecution’s case should have been granted. We agree. We therefore reverse the conviction and direct the entry of a judgment of acquittal.
Facts and Procedural Background
From June or July 2006 until the middle of November 2006, appellant lived in one unit of a duplex in San Mateo, as the roommate of a woman named Chonlana Jarawiwat. The two units of the duplex were separated by a common garage that was accessible only through an outer door at the rear, rather than directly from the residence. The garage was used for storage rather than parking, and the door was regularly left open. Appellant had unlimited access to the garage, and entered it frequently.
All further references to dates are to the year 2006 unless otherwise noted.
In July or August, a friend of Jarawiwat’s named Paul Maguire stored a number of items in her garage. The items included a turntable in a large box, and other electronic music equipment of the type used by disk jockeys (DJs). Appellant told Jarawiwat that the DJ turntable which Maguire had stored in the garage was an expensive piece of equipment.
In October, Jarawiwat asked appellant to move out within about 45 days. As of November 12, appellant was still living in the duplex unit with Jarawiwat, but had made plans to move to Las Vegas around November 17. Around this time, appellant had as a frequent guest at the unit a man named Jason Banks, whom she had met through a mutual friend, Zachary Pilalas.
On November 12, appellant went into the garage of the duplex unit. Upon her return, she exclaimed to Jarawiwat, “Oh, my God. Paul’s stuff has been stolen.” Appellant appeared very excited and concerned, and told Jarawiwat that she would report the theft to the police. Jarawiwat did not see her do so, however, during the two hours that Jarawiwat remained at the house afterwards.
On November 14, two San Mateo police officers, Michael Williams and Colin Stewart, went to Pilalas’s house. Pilalas told Stewart that the stereo equipment in his bedroom was not his; that Banks had brought it to his house; and that he thought Banks might have stolen it from someone named Shawna. Pilalas described to Stewart where Shawna lived. Williams and Stewart arrested Pilalas and Banks, and seized the DJ equipment that they found in the home. At trial, Stewart identified photographs of the DJ equipment taken from Jarawiwat’s garage as being the same items found in Pilalas’s bedroom and garage.
It appears from our record, although the jury was not informed of this fact, that a neighbor of appellant’s who was a police informant called the police on November 13 and told them that equipment stolen from Jarawiwat’s garage would be found at Pilalas’s home.
Stewart and Williams then went to Jarawiwat’s home, where they met appellant. Jarawiwat was not home when they first got there, but arrived about an hour later, while they were still present. Stewart told appellant that some items might have been stolen from Jarawiwat’s home, and appellant responded that some DJ equipment, which she characterized as being Jarawiwat’s, had indeed been taken. When Jarawiwat arrived home, she confirmed that appellant had told her about the theft earlier. Stewart showed the DJ equipment that the officers had taken from Pilalas’s house to appellant, and then to Jarawiwat, and they each identified it as the equipment that had been stolen.
Stewart testified that he and Williams did not go to Jarawiwat’s home because appellant had called them, but because of Pilalas’s statements to him.
When Jarawiwat arrived home later that day, she also tentatively identified the equipment as Maguire’s, but was not entirely certain because she had not paid much attention to it.
In response to Stewart’s inquiries, appellant identified Banks as the person whom she suspected of having stolen the DJ equipment. She explained that she had showed Banks the DJ equipment a few days earlier, and that he had responded by saying, “ ‘Don’t show me that. I don’t want my criminal tendencies to start acting up.’ ” She also told Stewart that she had been trying to reach Banks all day, by telephone and text message, in an effort to persuade him to return the stolen property.
After Banks and Pilalas were arrested, while they were in a police car being taken to jail, Stewart overheard Banks talking to Pilalas. Banks told Pilalas that “Shawna should be in the back seat with us because it was her idea. She was there when I brought the stuff to your house and we went through it.” Banks also admitted to Stewart that he had taken property from Jarawiwat’s home.
On December 13, an information was filed against Banks, Pilalas, and appellant in connection with the theft of the DJ equipment. Appellant was charged with burglary of an inhabited dwelling (Pen. Code, § 460, subd. (a) ); receiving stolen property (§ 496, subd. (a)); and grand theft (§ 487, subd. (a)). Pilalas was tried together with appellant, but is not a party to this appeal. Banks confessed to the theft, and eventually pleaded nolo contendere to grand theft. He was a principal witness for the prosecution at appellant’s trial.
All further statutory references are to the Penal Code unless otherwise noted.
Banks testified that appellant had shown him the DJ equipment in Jarawiwat’s garage, telling him that she wanted someone to take it, sell it, and give her a share of the money. On November 12, Banks took the equipment, put it in appellant’s car, and drove it to Pilalas’s house, where he stored it, with the intent of selling it later. Banks testified that he told appellant he had taken the equipment, and that appellant had seen the DJ equipment in Pilalas’s garage.
Banks also testified about eight text messages sent to his cell phone on November 14, all of which were signed with the words “SHAWNA B!” (Capitalization in original.) The messages were all sent between 1:13 p.m. and 2:16 p.m. on November 14. Banks testified that the messages came from appellant. The prosecution introduced the text messages into evidence by introducing Banks’s cell phone as an exhibit; having him identify the phone and read the messages from it out loud; having him testify that they came from appellant and interpret their meaning; and then moving into evidence sheets of paper on which the text of the messages had been reproduced for the jury to read. The accuracy of the paper copies was also verified through Banks’s testimony. Banks’s testimony was the only evidence that was introduced in the prosecution’s case-in-chief to authenticate the text messages.
The content of the text messages is set forth below. We have numbered them for convenience, and have retained the original capitalization, spelling, and punctuation.
1. “U CLDNT HV WTD? DUDE SHAWNA B!”
2. “DUDE HW LNG TIL UR BK? IM GNA HV 2 GO 2 ZAKS BKZ I AM NOT GNG 2 JAIL SHAWNA B!”
3. “IM SURE ITZ EITHR BN MVD N.W. OR SOLD SHAWNA B!”
4. “I DNT ND ZAK OR ANY1 BUT U CLN ME SHAWNA B!”
5. “CAN U GT ME THAT CAMERA AND THZ EARPHNZ WHUTEVR 4 THAT 150 BRO? SHAWNA B!”
Banks testified that this message referred to an arrangement he had made with appellant in which she offered to pay him $150 to steal a camera from a store for her and give her some earphones he had.
6. “UR GNG BK OR 2 SEATLE BY FRI. IM BOUT 2 GO 2 JAIL 4 5K WRTH OF STUF SHAWNA B!”
7. “CN U CALL ME SHAWNA B!”
8. “WHEN? SHAWNA B!”
After the close of the prosecution’s case-in-chief, appellant’s trial counsel moved for acquittal under section 1118.1. The trial court denied the motion on the ground that Banks’s testimony was corroborated by the text messages, which were the only corroborating evidence pointed to by the prosecution.
Appellant was convicted of the burglary and receiving stolen property charges, but acquitted of grand theft. She was sentenced to three years probation on conditions including nine months in jail. This timely appeal ensued.
Discussion
Appellant’s principal argument on appeal is that her motion for acquittal under section 1118.1 should have been granted, based on the following reasoning: (1) Banks was an accomplice (which respondent does not dispute); (2) his testimony was not independently corroborated; and (3) there was therefore insufficient evidence in the prosecution’s case-in-chief to support the conviction. Appellant contends that the text messages cannot be considered corroboration for this purpose, because they were authenticated only by Banks’s testimony.
Section 1111 provides that: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such proper evidence as shall tend to connect the defendant with the commission of the offense . . . .” The courts have interpreted this statute to mean that, in order to provide a sufficient basis for a conviction, “[a]n accomplice’s testimony must be corroborated by independent evidence which, without aid or assistance from the accomplice’s testimony, tends to connect the defendant with the crime charged. [Citations.] To determine if sufficient corroboration exists, we must eliminate the accomplice’s testimony from the case, and examine the evidence of other witnesses to determine if there is any inculpatory evidence tending to connect the defendant with the offense. [Citations.] ‘[C]orroboration is not sufficient if it requires interpretation and direction to be furnished by the accomplice’s testimony to give it value . . . . [Citation.]” (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543, italics omitted.) Moreover, “it is not sufficient to merely connect a defendant with the accomplice or other persons participating in the crime. The [corroborating] evidence must connect the defendant with the crime, not simply with its perpetrators. [Citations.] Likewise, it is insufficient to show mere suspicious circumstances. [Citation.]” (Id. at p. 1543.)
In support of her argument that these principles require reversal in this case, appellant relies primarily on People v. Bowley (1963) 59 Cal.2d 855 (Bowley). In Bowley, the defendant was convicted of participating in a sexual act that was illegal at that time. The act had been filmed, and the film was shown at the defendant’s trial. The film was authenticated only by the testimony of an accomplice, who was the other participant in the act.
The Supreme Court reversed the defendant’s conviction. The court held that although the film was properly admitted into evidence based on the authenticating testimony of the accomplice, it was not independent evidence, and thus did not provide the required corroboration of the accomplice’s testimony that the defendant was the other participant in the act shown on the film. The court reasoned that, “[t]o satisfy the requirement of . . . section 1111, ‘[t]he corroborative evidence . . . must be considered without the aid of the testimony which is to be corroborated and . . . it is not sufficient if it requires the interpretation and direction of such testimony in order to give it value.’ [Citations.]” (Id. at pp. 861-862.) “Since the film cannot ‘speak for itself’ as to its own authenticity, reliance must first be placed on the veracity of [the accomplice] that it is accurate before it can supply any corroboration. This is the very reliance which section 1111 tells us cannot be assumed . . . .” (Id. at p. 862.)
Respondent attempts to distinguish Bowley, supra, 59 Cal.2d 855 by contending that the text messages were self-authenticating under Evidence Code section 1421, and therefore constituted independent evidence corroborating Banks’s testimony. As appellant points out, however, this argument was not raised by the prosecution at trial. Moreover, the foundational facts required for authentication under Evidence Code section 1421 were themselves dependent on Banks’s testimony. That is, if we disregard Banks’s testimony, the remaining evidence in the prosecution’s case-in-chief does not establish that the text messages “refer[red] to or state[d] matters that [were] unlikely to be known to anyone other than” appellant. Moreover, as respondent’s brief acknowledges, there is nothing in the text messages that was not known to Banks and Pilalas as well as appellant. Thus, even if Banks’s foundational testimony is considered, the record does not supply the factual showing required for self-authentication under Evidence Code section 1421. (See People v. Babbitt (1988) 45 Cal.3d 660, 685 [rejecting argument that documents regarding defendant’s military service were self-authenticating under Evidence Code section 1421, where argument was made for first time on appeal, and no showing was made at trial that contents were known only to purported author].)
Evidence Code section 1421 provides: “A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.”
Most importantly, nothing other than Banks’s testimony was introduced by the prosecution to establish that the text messages actually were what they purported to be, i.e., text messages received on Banks’s cell phone from appellant. The cell phone itself was introduced into evidence, but only Banks’s testimony established that the messages on it actually came from appellant rather than some other person. Thus, respondent’s argument that the text messages “were created independently of Banks and unaffected by his credibility” rests on a factual premise not corroborated by any independent evidence. As the Supreme Court put it in Bowley, supra, 59 Cal.2d at p. 863, “section 1111 requires that to sustain a conviction the source of the authentication of the corroborating evidence must be independent of the accomplice. To hold otherwise would allow the prosecution to pull itself up by its own bootstraps.”
The fact that the messages were signed “Shawna B!” does not in and of itself establish their authenticity, because anyone who knew that appellant used that signature for her text messages could have imitated that practice. In short, there is no independent evidence that the messages were what they purported to be, and the contents of the messages are not sufficient, standing alone, to authenticate them as text messages sent by appellant. Put another way, the prosecution’s case-in-chief included nothing inconsistent with the hypothetical possibility that the evidence of appellant’s complicity in the theft, including the text messages, was entirely concocted by Banks for the purpose of incriminating appellant. This is precisely the risk against which the Legislature intended section 1111 to guard. “ ‘The rationale for requiring corroboration of an accomplice is that the hope of immunity or clemency in return for testimony which would help to convict another makes the accomplice’s testimony suspect, or the accomplice might have many other self-serving motives that could influence his credibility. [Citation.]’ [Citation.]” (People v. Belton (1979) 23 Cal.3d 516, 525.)
Stripped of the evidence provided by Banks, the evidence relating directly to appellant’s guilt or innocence that was presented in the prosecution’s case-in-chief consisted of appellant’s exculpatory statement to Stewart that she had been trying to reach Banks to persuade him to return the equipment. We agree with appellant that this evidence, standing alone, was insufficient to sustain a guilty verdict. Accordingly, appellant’s motion for acquittal under section 1118.1 should have been granted.
The remark about appellant that Banks made to Pilalas in the police car, as testified to by Stewart, does not constitute independent corroboration. Out-of-court statements made by an accomplice to the police, or after the accomplice’s arrest, fall within the scope of evidence that must be corroborated under section 1111. (People v. Belton, supra, 23 Cal.3d at pp. 523-527; People v. Jeffery (1995) 37 Cal.App.4th 209, 218 [“testimony” within meaning of section 1111 includes out-of-court statements by accomplice made under circumstances likely to induce self-serving motives, such as when accomplice has been arrested or is questioned by police].)
Because we must reverse appellant’s conviction on this ground, her remaining contentions on appeal are moot, and we do not address them. In addition, because we are reversing the conviction on the ground that appellant’s section 1118.1 motion should have been granted, any retrial would violate double jeopardy. Accordingly, we direct the trial court to enter a judgment of acquittal. (See People v. Falconer, supra, 201 Cal.App.3d at p. 1544.)
Appellant has also filed a petition for habeas corpus in this court. (In re Brown (A119434, petn. pending).) In light of our disposition of the appeal, the petition will be dismissed as moot by separate order.
Disposition
The judgment is reversed, and case is remanded to the trial court with directions to enter a judgment of acquittal.
We concur: Reardon, J., Rivera, J.