Opinion
D072169
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. TONY MARKS, Defendant and Appellant.
Lindsey M. Ball, 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, Michael Pulos and Marvin E. Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE360930) APPEAL from a judgment of the Superior Court of San Diego County, Robert O. Amador, Judge. Affirmed. Lindsey M. Ball, 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, Michael Pulos and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Tony Marks of robbery (Pen. Code, § 211) and felony assault with a deadly weapon (an automobile) (§ 245, subd. (a)), two counts of first degree burglary (§§ 459, 460, subd. (a)), four counts of second degree burglary (§ 459), four counts of using personal identifying information of another (§ 530.5, subd. (a)), and found true various enhancements. The trial court sentenced Marks to a total prison term of nine years.
Further unspecified statutory references are to the Penal Code.
In another case, the trial court sentenced Marks to a term of two years eight months, to run consecutively to the sentence imposed in this case, for a total prison term of 11 years, eight months.
On appeal, Marks asserts the court erred when it consolidated the counts of robbery and two charges of assault with a deadly weapon, which took place on December 13, 2015 (robbery case), with the burglary and false identity offenses, which occurred on March 17 and March 28, 2016 (collectively, burglary case). He also contends his conviction on count 4 for first degree burglary (March 17 burglary) is not supported by substantial evidence because mere possession of stolen property without corroborating evidence is not sufficient to sustain the jury's verdict.
In his reply brief, Marks withdraws the argument the trial court improperly consolidated the March 17 and March 28 charges for trial. He acknowledges the issue was not raised below and has been forfeited on appeal.
We conclude that the trial court did not abuse its discretion in consolidating the robbery case with the burglary case for trial, and that there is sufficient corroboration to sustain the March 17 burglary conviction (count 4). The judgment is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2016, the People charged Marks with two counts of assault with a deadly weapon and one count of robbery. The People alleged that on December 13, 2015, Kohl's loss prevention officers, suspecting Marks of shoplifting, asked him to return to the store. Marks reentered the store but then ran to his car. As he drove away, Marks struck one of the loss prevention officers in the hand with his open car door; the loss prevention officer then had to avoid Marks a second time as Marks drove out of the parking lot.
The People filed a separate felony complaint charging Marks with six counts of burglary and four counts of use of personal identifying information of another, arising from two separate incidents. The People alleged that on March 17, 2016, Marks entered the home of Joseph L. and took items from his room, including Joseph's wallet. Later that day, Marks used Joseph's two credit cards to make separate purchases at Target and a jewelry store, and tried to use one card three times at Pep Boys. The People also alleged that on March 28, 2016, Marks burglarized the home of E.H. and took items valued at more than $35,000. Marks used E.H.'s credit card to purchase items at Macy's.
The People filed a motion to consolidate the robbery and the burglary cases. The court held a hearing on the motion on March 8, 2017. The People argued the cases were all theft-related and should therefore be consolidated. The defense argued that the assault counts were not theft-related and that joinder would be prejudicial because the jury would conclude the defendant had the propensity to commit crimes. In addition, consolidating the cases would violate Marks's due process rights because he may want to testify in the robbery case but not in the burglary case, and consolidation would preclude that option.
The trial court granted the People's motion to consolidate the robbery case and the burglary case, finding they were the same class of theft-related offenses and principles of judicial economy favored joinder. The court stated it did not find that the allegation of assault with a deadly weapon in the robbery case, which involved the defendant driving away in his car, would inflame the jury. There were no injuries and the act was merely secondary to the defendant leaving the scene of a theft-related offense. The court found there were weak aspects to each case, therefore the People were not joining a weak case with a stronger case. The burglary counts were based on the inference the defendant committed the offenses because he was in possession of stolen property within a short time after the burglaries occurred. In addition, because the alleged robbery and burglary offenses took place on different dates, the defendant would not have to present inconsistent defenses to the charges.
The People filed a consolidated information charging Marks with felony assault with a deadly weapon (count 1) (§ 245, subd. (a)(1)); misdemeanor assault with a deadly weapon (count 2) (§ 245, subd. (a)(1)); robbery (count 3) (§ 211); first degree burglary (counts 4 and 11) (§§ 459, 460, subd. (a)); second degree burglary (counts 5, 7, 9 and 12) (§ 459); and use of personal identifying information of another (counts 6, 8, 10 and 13) (§ 530.5, subd. (a)). The People also alleged certain sentencing enhancements: personal use of an automobile as a deadly weapon (count 1) (§ 1192.7, subd. (c)(23) & Veh. Code, § 13351.5); burglary of an inhabited building (counts 4 and 11) (§ 460, subd. (a)); and another person, other than an accomplice, was present in the residence during the burglary (count 4) (§ 667.5, subd. (c)(21)).
At trial, the People presented evidence showing that on December 13, 2015, Marks was shopping at Kohl's in Rancho San Diego, El Cajon. He went into an empty fitting room with two pairs of jeans, a pack of underwear, a pair of underwear, and a black shirt. When Marks left the fitting room, he was carrying fewer items and did not leave anything in the fitting room. He gave some of the items to a woman he was with, placed a pair of jeans on a nearby fixture, and left the store. A loss prevention officer, Kaitlyn F., found tags to a black shirt, another pair of jeans, and a pair of underwear in a pocket of the jeans. She followed Marks out of the store and asked him about the missing items.
Marks initially returned to the store with Kaitlyn. When she refused his request to discuss the matter at the entrance to the store rather than in the office, he ran out the door to his car. Kaitlyn and two other Kohl's employees followed him. Marks was in his car with the driver's side door open. Kaitlyn stood between the open door and the car. Marks started to reverse the car out of the parking lot and struck Kaitlyn's arm with the car door. When Marks turned and drove forward, Kaitlyn jumped into the bushes to avoid him. Marks stopped the car. Kaitlyn moved out of the way and Marks drove off.
Joseph L. testified he rented a room in a house in San Diego. His room was on the bottom floor of the house with outside access through a sliding glass door. On March 17, 2016, Joseph left for work at approximately 8:30 a.m. It was his habit to close and lock the sliding door when he left. When Joseph returned at approximately 1:00 p.m., he noticed that his sliding door was open and his Mac Book Pro and iPad Air were gone. As he inspected his room, he realized there were many other items missing, including his wallet with his driver's license and two credit cards.
After checking with his roommates who had been home all morning, Joseph telephoned the police at 1:06 p.m. Police tried to obtain fingerprints from the door and his room. Joseph received an alert from his credit card company about purchases at a jewelry store and Target. On one credit card, there were unauthorized charges totaling $3,284.38: $800 and $1600 at the jewelry store and $884.38 at Target. On the other credit card, there were unauthorized charges totaling $1,092.64: $410.39, $242.25, and $440 at Target. Marks also attempted to use one of Joseph's credit cards at a Pep Boys, but it was declined three times. As we will discuss post, all of these purchases and attempted purchases occurred in the El Cajon area; the first of the credit card transactions occurred within five hours of the time Joseph left his home, and within 24 minutes of when he realized his home had been burglarized.
Joseph tracked his iPad and Mac Book Pro for several weeks. For a few days after the burglary, the iPad pinged several times in El Cajon. The first ping was on March 17, the day of the burglary, at 3:06 p.m., at a location in San Diego between Montezuma Road and University Avenue. The next day the iPad pinged several times in the El Cajon area. The Mac Book pinged once at an address in La Mesa. Joseph contacted the police who went to that address. They did not locate the Mac Book or encounter Marks.
Surveillance video showed Marks entering a Target store in El Cajon at 1:24 p.m. on March 17. He used Joseph's credit cards at Target at 1:46 p.m. and entered a jewelry store across the street at 2:06 p.m. where he used the same card. The Target loss prevention officer and the jewelry store owner identified Marks as the person who had used Joseph's credit cards at their stores. The jewelry store owner testified he asked Marks for identification, which matched the name on the credit card (the victim's name), and that Marks said the credit card belonged to him. Marks purchased a gold necklace and a matching gold bracelet, which was too tight for him.
On March 28, a house belonging to E.H. was ransacked and items valued at more than $35,000 were taken. A neighbor saw two men entering E.H.'s house several times and leaving with items from the property. The neighbor notified the police and identified the vehicle the men were driving—a late model Jaguar. Approximately one-half hour after the neighbors notified the police, Marks used E.H.'s credit card to purchase items at Macy's, including a men's diamond bracelet and a polo shirt.
The next day, on March 29, police officers pulled over a Jaguar that Marks was driving. Officers located merchandise in the vehicle matching items Marks had purchased from Macy's with E.H.'s credit card. However, as of March 29, Marks was not yet a suspect in either the March 17 or March 28 burglaries, so officers photographed the items that were in the vehicle as well as Marks (and other occupants), but Marks was not detained. An employee at Macy's watched video surveillance of Marks purchasing items using E.H.'s credit card on March 28. In July 2016, the Macy's employee provided the surveillance video and a receipt of the items purchased to a detective investigating the burglary. The testimony of the Macy's employee, the investigating detective, and the victim, collectively established that the items found in Marks's vehicle on March 28 matched some of the items stolen from E.H.'s house as well as some of the items purchased at Macy's using E.H.'s stolen credit card.
Although not specified during trial, it appears Marks was arrested after the investigating detective matched the photograph of Marks from March 28 with the Macy's video surveillance from that date.
When Marks was pulled over by the police on March 29, he provided an address of 3245 Loma Vista, Jamul, a neighboring community to El Cajon. The March 28 burglary occurred in El Cajon. The Kohl's where the December 2015 crime occurred is in El Cajon. The Macy's, Pep Boys, jewelry, and Target stores where unauthorized purchases were made (or attempted) using the March 17 and March 28 victims' credit cards, are all located in El Cajon.
At the close of evidence, the defense moved to dismiss the two charges of residential burglary against Marks under section 1118, arguing there was nothing connecting him to these charges other than the fact he was in possession of the victims' credit cards after the burglaries occurred. The court found there was substantial evidence of the offenses charged, and the jury could reasonably infer defendant was guilty based on the evidence. A strong inference of identity could be drawn from Marks's possession of the victims' credit cards. In addition, when Marks was stopped the day after the March 28 burglary, there were items in the car from E.H.'s house.
The court instructed the jury that to find Marks guilty of first degree burglary, the People must prove beyond a reasonable doubt the defendant entered a building, or a room within a building, with the intent to commit theft at the time he entered the property. A burglary of an inhabited house or a room within an inhabited house is burglary in the first degree.
The court also instructed the jury: "If you conclude that the defendant knew he possessed property, and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed the burglary. The supporting evidence need only be slight, and need not be enough by itself to prove guilt. You may consider how, where and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of the burglary."
At closing argument, Marks admitted to the charges of second degree burglary and use of personal information of another but denied committing the residential burglaries and the offenses alleged in the December case (robbery and assault with a deadly weapon). With respect to the March 17 residential burglary alleged in count 4, Marks pointed out no one had identified him as the perpetrator or presented any evidence connecting him to the crime. Marks argued it was not sufficient to assume he committed the burglary merely because he had used Joseph's credit cards.
The prosecution argued Marks's actions of going from store to store to buy as much as he could with Joseph's credit cards and the pings locating the victim's iPad in El Cajon showed beyond a reasonable doubt that Marks had committed the March 17 burglary.
The jury returned a guilty verdict on all counts except the count of misdemeanor assault with a deadly weapon (count 2). On May 3, 2017, the trial court imposed the principal term of six years on count 4 and sentenced Marks to a total prison term of nine years in this case, plus a consecutive term of two years, eight months on his convictions in a separate case.
II.
DISCUSSION
A. Joinder
Marks contends the court erred when it consolidated the robbery case with the burglary case. He acknowledges the alleged crimes are of the same class, but argues because the evidence was not cross-admissible and the robbery case was weak, the consolidated trial was less efficient and failed to justify its prejudicial impact. Marks asserts joinder was clearly prejudicial because he did not contest the charges of second degree burglary and personal use of information of another, and the jury likely used those offenses as propensity evidence in convicting him of two of the three charges in the robbery case. He further argues joinder resulted in gross unfairness amounting to a denial of due process.
Section 954 states "[a]n accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, . . . and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated." (§ 954; People v. Soper (2009) 45 Cal.4th 759, 771 (Soper).) "Joinder is ordinarily favored because it avoids the increased expenditures of funds and judicial resources that may result from separate trials." (People v. Simon (2016) 1 Cal.5th 98, 122 (Simon).)
On review, we examine whether the trial court abused its discretion in granting the pretrial motion to consolidate in view of the information available at that time. (Cf. People v. Mendoza (2000) 24 Cal.4th 130, 161 (Mendoza) [discussing a motion to sever charges].) Where the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish an abuse of discretion. (Soper, supra, 45 Cal.4th at p. 774.)
In determining whether the defendant has made the necessary showing of prejudice to establish an abuse of discretion in a noncapital case, the reviewing court considers: (1) whether the evidence relating to the various charges would be cross-admissible in separate trials, (2) whether any of the charges are unusually likely to inflame the jury against the defendant, and (3) whether a weak case has been joined with a strong case or with another weak case. (Simon, supra, 1 Cal.5th at p. 123.) Marks has not established a clear showing of potential prejudice under these factors. (Soper, supra, 45 Cal.4th at p. 774.)
The prosecution conceded that evidence in the two cases would not be cross-admissible in separate trials. Although cross-admissibility of evidence is generally sufficient standing alone to justify consolidation, the absence of cross-admissibility does not show joinder is prejudicial. (Simon, supra, 1 Cal.5th at pp. 123-124.) In the absence of cross-admissible evidence, we consider the remaining factors to assess whether the trial court abused its discretion in consolidating the charges. (Ibid.)
"[T]he issue is 'whether " 'strong evidence of a lesser but inflammatory crime might be used to bolster a weak prosecution case' on another crime." ' " (Simon, supra, 1 Cal.5th at p. 124.) Marks does not establish a clear showing of potential prejudice because the charges were not likely to inflame the jury against Marks, and neither the robbery case nor the burglary case was "a weak case that needed joinder to bolster the likelihood of conviction." (Simon, supra, 1 Cal.5th at p. 127.) The robbery and burglary offenses were reasonably similar in nature, such that the evidence in support of one charge was not likely to inflame the jury to the defendant's prejudice on the other charge. (See People v. Capistrano (2014) 59 Cal.4th 830, 850 [severance not warranted on basis of inflammatory effect where evidence of one crime "was not more inflammatory than the other crimes"], overruled on another ground in People v. Hardy (May 31, 2018, S113421) ___ Cal.5th ___ ; Soper, supra, 45 Cal.4th at p. 780 [no likelihood evidence would unduly inflame the jury where the crimes were "similar in nature and equally egregious"].) The trial court properly balanced the potential inflammatory nature of these charges, and the evidence does not support Marks's claim that joining the charges affected the outcome of his case in any way.
Marks similarly fails to establish the trial court abused its discretion in assessing the relative strength of the respective charges. Marks contends the shoplifting element of the robbery case was particularly weak and the uncontested credit card and second degree burglary offenses would allow the jury to conclude that he had the propensity to steal. We disagree. The trial court could reasonably find there was ample evidence for the jury to conclude that Marks left Kohl's with unpaid merchandise and when he was confronted about it, fled the scene, which is indicative of guilt. The record before the trial court at the time of its ruling did not show a substantial disparity in the strength of the cases. (People v. Ybarra (2016) 245 Cal.App.4th 1420, 1436 (Ybarra) [to prevail, a "defendant must show an 'extreme disparity' in the strength or inflammatory character of the evidence"], italics added.)
Although we conclude the trial court did not abuse its discretion based on the record before it at the time it ruled on the consolidation motion, we must also consider "whether events after the court's ruling demonstrate that joinder actually resulted in 'gross unfairness' amounting to a denial of defendant's constitutional right to fair trial or due process of law." (People v. Merriman (2014) 60 Cal.4th 1, 46.) We will reverse a judgment for gross unfairness "only if it is reasonably probable that the jury was influenced by the joinder in its verdict of guilt." (Simon, supra, 1 Cal.5th at pp. 129-130.)
"Appellate courts have found ' "no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials." ' " (Soper, supra, 45 Cal.4th at p. 784.) Here, the evidence supporting each of the charges was straightforward and distinct, and both the robbery case and the burglary case, which we will discuss post, were supported by evidence that would have warranted conviction had the incidents been tried separately. The fact that the jury rejected the misdemeanor assault charge in the robbery case suggests the jury independently weighed the evidence on each count. (Simon, supra, 1 Cal.5th at p. 130; see also People v. Jones (2013) 57 Cal.4th 899, 927 ["Where the jury . . . fails to convict at all on some charges, we are confident the jury was capable of, and did, differentiate among defendant's crimes."].) The record therefore reflects no gross unfairness to Marks in the court's joinder of the robbery and burglary charges.
Marks also asserts, without citation to legal authority, that joinder prevented him from exercising his right to testify on his own behalf in the robbery case while maintaining his Fifth Amendment right not to incriminate himself in the burglary case. The right to testify on one's own behalf is a fundamental right, but that right must be timely and adequately asserted. (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231 (Hayes); People v. Guillen (1974) 37 Cal.App.3d 976, 984 (Guillen); People v. Robles (1970) 2 Cal.3d 205, 215.)
Here, during arguments about joinder, the defense stated: "[Joinder] puts the defendant in a place where if he's considering to testify on two different defenses[] and as a defense attorney, that looks bad when you go in front of the jury and state there are two different defenses. It rarely pans out right. [¶] And, additionally, [that] would be violations of Mr. Marks' due process rights. He has the right to testify. He might choose to testify in one case but not in another case. If these two cases are consolidated, if he chooses to testify, he is going to be held to answer questions relating to both cases, and that may be something he may choose not to do."
Marks does not show he timely and adequately asserted his right to testify. His argument that he might want to testify in one case but not the other was not an assertion that he wanted to testify. There is no further mention at trial of Marks asserting his right to testify. When the defendant has not timely and adequately asserted his right to testify, " 'a trial judge may safely assume that a defendant who is ably represented and who does not testify is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel's trial strategy.' " (Hayes, supra, 229 Cal.App.3d at p. 1231, quoting People v. Mosqueda (1970) 5 Cal.App.3d 540, 545.) A defendant who fails to make such an assertion will not be permitted to "await the outcome of the trial and then seek reversal based on his claim that despite expressing . . . his desire to testify, he was deprived of that opportunity." (Hayes, at pp. 1231-1232, citing Guillen, supra, 37 Cal.App.3d at p. 985.)
Marks's theory of prejudice has been considered but not adopted as part of the California Supreme Court's severance analysis. (See People v. Landry (2016) 2 Cal.5th 52, 79-80; People v. Johnson (2015) 61 Cal.4th 734, 752 (Johnson).) Even if our high court were to adopt the federal approach, Marks's asserted claim of prejudice falls short. "Under the two-part test devised by the federal courts, 'severance is required when a defendant demonstrates that he has both (1) important testimony to give concerning some counts and (2) a strong need to refrain from testifying with regard to other counts.' " (Landry, at p. 80.) Here, Marks neither clearly asserted an intent to testify, nor explained why any proffered testimony was needed in one case but not the other. (See Johnson, at p. 752 [trial court did not abuse its discretion in failing to sever cases where defendant failed to provide "a specific offer of proof concerning his testimony"], italics added.)
In sum, Marks has failed to show that joinder was an abuse of the trial court's discretion, or that joinder resulted in the denial of his constitutional right to a fair trial or due process.
B. Substantial Evidence
Marks asserts the residential burglary in count 4 must be reversed for lack of legally sufficient evidence. He contends there is not substantial evidence to support an inference of identity based only on the fact he used the victim's credit cards on the day of the burglary. The People argue the inference that Marks committed the residential burglary in count 4 is corroborated by his use of the victim's credit cards, and the fact that the victim's iPhone pinged the location of his stolen iPad the day after the burglary. The People argue a reasonable jury could conclude appellant was in possession of all the victim's stolen property, and therefore he was the person who had committed the burglary.
In addition to challenging the sufficiency of the evidence to support the conviction, Marks also apparently challenges the trial court's denial of his motion to dismiss under section 1118.1. Because the defense did not put on any evidence after the prosecution rested its case-in-chief, our analysis whether there is substantial evidence to support the conviction or whether the trial court erred when it denied the motion to dismiss for lack of sufficient evidence is the same. (See People v. Belton (1979) 23 Cal.3d 516, 521 [sufficiency of the evidence is tested as of the time of the section 1118.1 motion].)
" ' "[W]e 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—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" ' ' . . . [W]e presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.' [Citation.]" (People v. Wilson (2008) 44 Cal.4th 758, 806.) Reversal is warranted only where it appears " 'that upon no hypothesis what[so]ever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The California Supreme Court has adopted a "long-standing rule allowing a jury to infer guilt of a theft-related crime from the fact that a defendant is found in possession of recently stolen property when such evidence is accompanied by slight corroboration of other inculpatory circumstances tending to show guilt." (People v. Rogers (2013) 57 Cal.4th 296, 335, citing People v. McFarland (1962) 58 Cal.2d 748, 754-758 (McFarland) [possession of recently stolen property is so incriminating that only slight corroborating evidence is necessary to sustain the conviction].)
The reason mere possession alone is insufficient is that "there may be an innocent explanation for the circumstance of possession. ' "The real criminal . . . may have artfully placed the article in the possession or on the premises of an innocent person, the better to conceal his own guilt; or it may have been thrown away by the felon in his flight, and found by the possessor, or have been taken from him in order to restore it to the true owner, or otherwise have come lawfully into his possession." ' " (People v. Najera (2008) 43 Cal.4th 1132, 1138.)
When a defendant "is found in possession of property stolen in a burglary shortly after the burglary occurred, the corroborating evidence of the defendant's acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary convictions." (Mendoza, supra, 24 Cal.4th at p. 176.) The required corroborating evidence may be provided by the time, place, and manner of the defendant's possession of stolen property, the defendant's conduct, and any other evidence that tends to connect the defendant with the crime. (People v. Parson (2008) 44 Cal.4th 332, 355.)
We conclude substantial evidence exists to support Marks's conviction on count 4 relating to the burglary of Joseph's home. The evidence presented at trial established both Marks's possession of recently stolen property, as well as corroboration that was more than slight. Just hours after Joseph returned to find his home burglarized, both of his stolen credit cards were used at multiple locations. Witnesses identified Marks as the person who used Joseph's two credit cards, and surveillance cameras confirm he purchased six items totaling over $4,000 at two stores. Marks used both credit cards at Target, one of the two cards at the jewelry store, and tried to use one of the two cards at Pep Boys but it was declined three times. Marks kept trying to use Joseph's credit card at Pep Boys after it was first declined, in a manner the Pep Boys employee described as "persistent." Marks also lied to the jewelry store owner, stating that the credit card he was using belonged to Marks. False statements about the source of property tend to show consciousness of guilt and constitute valid corroborating evidence. (People v. Citrino (1956) 46 Cal.2d 284, 288-289 (Citrino); McFarland, supra, 58 Cal.2d at p. 754 ["[i]t has frequently been held that possession of recently stolen property together with a false explanation will support a conviction"].) Marks also falsely presented Joseph's identification as his own—an identification stolen from Joseph's residence along with his wallet and two credit cards—providing additional corroboration that Marks did not just innocently come into possession of the stolen property. (Citrino, at pp. 288-289 ["[T]he failure to show that possession was honestly obtained is itself a strong circumstance tending to show the possessor's guilt of the burglary."]; People v. Holley (1961) 194 Cal.App.2d 538, 540-541 ["When property which was stolen in a burglary is found in the possession of a person soon after the theft and such person is unable or unwilling to truthfully account for the manner in which he acquired the possession of such property the possession and guilty conduct are presumptive evidence that such person obtained the property burglariously."].) In addition, Marks's crimes also were committed in the same geographic area as the location of Joseph's iPad—as evidenced by the "pinging" on the stolen device in an area close to El Cajon a short time after Marks tried to use Joseph's credit card at Pep Boys and in the El Cajon area the following day. As noted ante, the Target, jewelry store, and Pep Boys where Marks used Joseph's credit card, were all in El Cajon (as was the Kohl's that is the subject of the robbery case). Marks's home was in the neighboring community of Jamul. Although this evidence is not sufficient on its own to support a conviction, it does not have to be independently sufficient to qualify as "slight" corroborating evidence.
"There is no set rule as to what constitutes recent possession." (People v. Giffis (1963) 218 Cal.App.2d 53, 60.) However, courts have found that possession within approximately 24 hours of the crime (and even longer) is sufficient. (See, e.g., Mendoza, supra, 24 Cal.4th at p. 176 [later the same morning]; People v. Owens (1947) 79 Cal.App.2d 290, 295 [morning after the burglary was discovered]; McFarland, supra, 58 Cal.2d at p. 758 [within a few days of one crime and within two months of all crimes].) --------
In sum, Marks did not just have possession of stolen items from the burglary. He lied about where he got the credit cards; he repeatedly used the credit cards and stolen identification at multiple stores to purchase over $4,000 of merchandise (purchases which were captured on surveillance cameras and confirmed by witnesses); he persisted in his efforts to use one stolen card, and only left when he was told to do so after the third attempt; the stolen iPad "pinged" in reasonable proximity to the crime scenes; and Marks's possession and use of both credit cards and the victim's driver's license supports the reasonable inference he had taken the victim's wallet. Taken together, these facts and circumstances constitute sufficient evidence for a reasonable jury to infer that Marks was the perpetrator of the burglary. Considering the evidence in the light most favorable to the judgment and resolving all conflicts in its favor, we conclude there is adequate corroborating evidence to support Marks's conviction on count 4.
III.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.