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People v. Evans

California Court of Appeals, Fourth District, Second Division
Mar 13, 2008
No. E041256 (Cal. Ct. App. Mar. 13, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. COURAGE BALLANT EVANS, Defendant and Appellant. E041256 California Court of Appeal, Fourth District, Second Division March 13, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from the Superior Court of Riverside County. Douglas Weathers, Judge, Super.Ct.No. RIF126497.

Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P. J.

Defendant Courage Ballant Evans appeals, arguing there is insufficient evidence to sustain the jury’s guilty verdict on one of six counts of second degree burglary because the prosecution did not present reasonable, credible, solid evidence of his intent.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged and convicted by a jury of six counts of burglary in violation of Penal Code section 459 (counts 1-6) and two related counts of petty theft with a prior (counts 7-8). The People also alleged defendant served two prior prison terms within the meaning of section 667.5, subdivision (b), and had five prior strike convictions within the meaning of sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c)(2)(A). In a bifurcated proceeding, the trial court found all of the prior prison and prior strike allegations to be true. As a result of the jury’s verdict and the prior offenses, defendant is serving an indeterminate term of 27 years to life in state prison.

All further statutory references are to the Penal Code unless otherwise stated.

Evidence presented at trial indicated defendant telephoned Altura Credit Union (Altura) on October 26, 2004, to begin the process of opening an account. To complete the process, he went into Altura’s Fourteenth Street branch office on November 1, 2004. He provided his driver’s license, a social security number, a birth date, and an address of 3246 Lanes Street in Riverside. A police investigator later determined the address on the account did not exist. He made an initial deposit of $120, less a withdrawal of $12 for the membership fee and another $8 that was given to defendant in cash. Altura issued a temporary automated teller machine (ATM) card to defendant, along with a personal identification number (PIN). To protect confidentiality, the account holder selects the PIN, and no employee of Altura has access to the numbers. Thereafter, the member must have the ATM card and the PIN to complete point-of-sale transactions at a store or to make deposits and withdrawals at an ATM.

Later on the same day, defendant used an ATM located inside Stater Bros. grocery store at 2995 Iowa Avenue to make two sham deposits to the account in the amount of $1,500 each. The deposit envelopes contained only “a lottery ticket or a lottery receipt.” Altura learned about the deposits on the morning of November 2, 2004, and placed the funds on hold. Then, about 3:30 p.m. that day, Altura learned the deposits were fraudulent and placed a notation on the account letting tellers know they should notify police.

Before Altura discovered the fraudulent deposits, defendant successfully completed a point-of-sale transaction at Canyon Crest Liquor on November 1, 2004, in the amount of $23.78; a withdrawal in the amount of $301.50 at the 7-Eleven store on Perris Boulevard at 1:27 a.m. on November 2, 2004; and a point-of-sale transaction in the amount of $88.50 at Sam & Sam on Perris Boulevard at 2:10 a.m. on November 2, 2004. Only the first transaction in the sum of $23.78 would have been legitimately available to defendant out of his initial cash deposit of $100. The total loss to Altura as a result of all of these transactions was $313.78.

A teller at the Riverside Avenue branch of Altura testified that on the morning of November 2, 2004, defendant visited the branch, filled out a withdrawal slip, handed the slip to her, and presented his driver’s license. The teller noticed there was a warning on the account “to call risk management.” She told defendant there was a hold on the account “probably because of . . . an ATM deposit” and she needed to talk to her supervisor. Defendant waited while the teller went to talk to her supervisor, who contacted risk management. The teller then returned to give defendant a card. She told defendant she was unable to reach the people in charge, but he could call in later or wait for the supervisor to contact him so he would not have to wait any longer. Defendant did not ask questions or become upset; he exited the bank without incident. Although she did not recall the exact amount on the withdrawal slip, she believes it was either $900 or $1,300. A videotape and still pictures of this encounter were shown to the jury.

Count 6, which defendant now challenges on appeal, alleged that defendant returned to Altura’s Fourteenth Street branch on November 8, 2004, to commit one additional act of burglary. Testimony at trial indicated that on this day defendant first went through the teller line where customers go to make deposits and withdrawals. However, he was sent to an Altura representative in the front because his problem was too complicated for the teller. This representative testified defendant asked why his temporary ATM card was not working. He explained he did not have his card with him because he had become frustrated in a grocery store when the card was declined and had thrown it down and stomped on it. The representative accessed the account on the computer, and a note on the screen said “fraud account, call police.” As a result, the representative went to the back to talk to her supervisor, who called police. The supervisor told her to stall until police arrived. She went back to the front and told defendant to have a seat while she contacted someone by telephone and proceeded “to kill time.” During this time, defendant said he was in a rush, was agitated and impatient, and repeatedly asked “What’s taking so long?” The representative reassured defendant she was trying to help. Soon thereafter, police arrived. The jury was shown a videotape and still photographs taken during this time period.

Defendant was arrested and transported to the police station. In an interview room at the police station, defendant told the arresting officer he was the sole user of the account and the only one with knowledge of the PIN for the ATM card. He said he tried to use the card at a 7-Eleven store but discarded it when it did not work. He denied knowledge of any deposits made to the account using the ATM card and stated he did not go to the bank to get money but to determine why his account was not working and to deposit funds. At the time of the arrest, defendant had two $20 bills in his possession. When asked for his address, defendant gave the officer a different address than the one given to Altura to open the account.

Police detained defendant’s girlfriend for questioning on November 8, 2004, because she was waiting for him outside the bank. She was questioned separately and said defendant told her he wanted to go to the bank to withdraw money because the account was no longer working. The officer testified this statement was significant because it was the opposite of what he had been told by defendant. At trial, the prosecution called the girlfriend as a witness, and she claimed she made this statement to the officer because he threatened her and she was scared. The prosecution also played a tape of a conversation between defendant and his girlfriend when she visited him at the jail. During this conversation, the girlfriend indicated a number of times she did not intend to say anything damaging about defendant at trial.

A key witness for the prosecution was an economic crimes expert who was experienced in investigating ATM fraud. The expert highlighted reasons why it was unlikely someone other than defendant was responsible for the fraudulent transactions. He then responded to a series of questions which emphasized factors pointing to defendant as the perpetrator. The factors included the nonexistent address given to open the account, the minimum amount of $100 used to open the account; the use of a temporary ATM card rather than waiting for a permanent card to be mailed to a nonexistent address; the sham deposits made at a cooperative bank’s ATM immediately after the account was open to inflate the balance, followed by an attempt to withdraw $900 a day after the account was opened. In short, the expert opined that the evidence in the case was consistent with fraud perpetrated by an account holder and also consistent with other similar fraud cases he had investigated.

DISCUSSION

Count 6 specifically alleged that on November 8, 2004, defendant willfully and unlawfully entered Altura’s Fourteenth Street branch with the intent to commit theft in violation of section 459. Defendant argues there was insufficient evidence to establish that his intent when he entered Altura’s Fourteenth Street branch on November 8, 2004, was to commit a theft. Rather, defendant believes the only rational interpretation of the evidence is that he visited Altura on November 8, 2004, in order to deflect blame for the unlawful transactions on his account to someone else by letting Altura know he no longer had his temporary ATM card.

Defendant believes support for his argument can be found in testimony by the prosecution’s economic crimes expert and in portions of the prosecutor’s closing arguments. During cross-examination, the economic crimes expert suggested, in response to a hypothetical question, that it was possible defendant went to the bank on November 8, 2004, to attempt to convince Altura he was not involved in fraudulent misuse of his ATM card.

During closing argument, the prosecutor essentially conceded defendant’s intent in returning to the bank on November 8, 2004, could have been to deflect blame rather than to withdraw additional funds from his account. She stated as follows: “[W]hether his intention was to get another ATM card and continue his fraudulent activity or whether it was to mislead the bank, let them know at this point, ‘I lost my card,’ so he’s not responsible for the past transactions that had taken place on his account that he knew that he did—whatever the reason was he gave [the Altura representative] that story, he tells [the arresting officer] something else.”

Referring to defendant’s demeanor on November 8, 2004, as described by Altura’s representative, the prosecutor argued that: “He was agitated, he was in a hurry, he was nervous. He knew what was going on and he knew it was a risk for him to be in the bank. He wanted to withdraw whatever money he could or at least give some sort of statement that might mislead the bank, such as he lost his card.” Referring specifically to count 6, the prosecutor also conceded: “This count is not as strong as the other counts,” but then argued there was nonetheless sufficient evidence to support a finding of guilt.

“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.)

“Every person who enters any . . . building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” (§ 459.) The jury here was instructed that in order to find defendant guilty of burglary it must find he entered a building “with the specific intent to steal, take, and carry away the personal property of another of any value, and with the further specific intent to deprive the owner permanently of that property.” Intent “is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime.” (People v. Lewis (2001) 25 Cal.4th 610, 643.)

Defendant has not shown an absence of evidence to support the jury’s verdict on count 6. Rather, defendant merely cites a conflict in the evidence, which made it possible for the jury to interpret the evidence presented to support count 6 in a light more favorable to his innocence of the charge rather than to his guilt. Under the relevant standard of review, circumstantial evidence is not insufficient simply because it is “ ‘ “susceptible to two interpretations, one of which suggests guilt and the other innocence.” ’ ” (People v. Snow (2003) 30 Cal.4th 43, 66.)

Our review of the record discloses sufficient, credible evidence from which the jury could reasonably conclude defendant entered Altura’s Fourteenth Street branch on November 8, 2004, with the intent to commit an additional theft. The prosecution’s economic crimes expert testified defendant’s conduct throughout the relevant time period was consistent with fraudulent activity he had seen in other, similar cases. The expert did agree during cross-examination that in isolation the circumstances on November 8, 2004, could suggest defendant was there to deflect blame. He also agreed someone waiting in a bank to find out why he could not use his ATM card was not necessarily incriminating behavior. However, he also stated “it depends on what all the other factors are in the particular situation.” In other words, defendant’s intent on November 8, 2004, could be inferred not only from his conduct on that day, but from all of the surrounding facts and circumstances as presented. The expert’s opinion of defendant’s involvement in the charged offenses did not change even though there could be a legitimate explanation for some of defendant’s conduct during the time in question.

The expert’s testimony was supported by the testimony of other witnesses, including Altura’s internal fraud investigator, who testified about different suspicious scenarios typical of ATM fraud cases, which are monitored during the regular course of business. One of these suspicious scenarios is the new account holder who opens an account, makes large deposits using an ATM card shortly after the account is opened, and then uses the ATM card to make withdrawals. He testified defendant’s account fit into this suspicious pattern.

The arresting officer testified he was dispatched to Altura when “[t]he reporting party called to state the subject was there attempting to move funds from the account that was flagged as fraudulent.” There was also evidence of a similar entry to Altura’s Riverside Avenue branch on November 2, 2004, when defendant attempted to withdraw a substantial sum that would have been in excess of the small legitimate deposit he made to open the account.

To support count 6, the prosecutor also relied in part on the statement made to the arresting officer by defendant’s girlfriend. The girlfriend was detained following defendant’s arrest on November 8, 2004, and she told the officer defendant said he wanted to go to the bank to withdraw money because his account was no longer working. Defendant argues we should disregard the girlfriend’s testimony because she was shown not to be a credible witness. However, “[t]he trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witness’s testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) Under the circumstances, it would have been reasonable for the jury to conclude the girlfriend’s statement to the officer, which occurred close in time to the event, was more credible than her trial testimony.

Based on the evidence as a whole, it would be reasonable for the jury to conclude defendant went to Altura on November 8, 2004, as a last ditch attempt to withdraw more money from the account, thereby continuing his fraudulent scheme. We therefore conclude there was substantial evidence from which the jury could have found defendant guilty of burglary on November 8, 2004.

DISPOSITION

The judgment is affirmed.

We concur HOLLENHORST, J., GAUT, J.


Summaries of

People v. Evans

California Court of Appeals, Fourth District, Second Division
Mar 13, 2008
No. E041256 (Cal. Ct. App. Mar. 13, 2008)
Case details for

People v. Evans

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. COURAGE BALLANT EVANS, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 13, 2008

Citations

No. E041256 (Cal. Ct. App. Mar. 13, 2008)

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