Opinion
B229183
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. RAUL PEREZ, Defendant and Appellant.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Eric E. Reynolds and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA089905)
APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Eric E. Reynolds and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
Raul Perez challenges a conviction for being an accessory after the fact to the crime of forgery on the ground that there was insufficient evidence to prove beyond a reasonable doubt that he had the requisite knowledge and intent. We affirm the judgment.
FACTS
On February 26, 2010, Los Angeles Sheriff's deputies conducted a narcotics investigation at an apartment located in Pomona. As the deputies prepared to knock on the door and identify themselves, Perez was seen inside the apartment walking up to an open window. He saw the deputies and said, "Fuck." Deputy Jay Heitmann then saw Perez grab some small baggies, turn to his right and run through an open door. Because it appeared that Perez was trying to escape, a deputy ran to the back door and another kicked in the front door.
When the deputies entered the apartment, they found a woman in the living room and three men in a bedroom. Perez came out of the bathroom. He was searched and approximately $2,000 was found in the pocket of his shorts. Heitmann searched the bathroom because, in his experience, suspects often tried to flush drugs down the toilet. The toilet was clogged and Heitmann found what appeared to be the same baggies he saw Perez grab earlier.
Perez admitted to Deputy Mark Pullee that the baggies were his and he was supplementing his income by selling methamphetamines. Perez also told Pullee that he was in the process of selling one of the baggies but tried to flush them down the toilet when he saw Heitmann. Testing revealed one of the baggies contained methamphetamine. The other baggies appeared to contain the same substance.
On April 2, 2010, Perez was driving his BMW with John Torres when he was stopped for failing to come to a full stop at a stop sign and failing to use a turn signal. Torres was arrested on an unrelated matter and taken out of the car. While Perez waited in the car, an officer observed him undo the leather casing around the gear shift, place some white paper underneath it and re-fasten the leather casing around the gear shift. A search of the car showed three checks "shoved pretty far up under the gear shift box area . . ." The three checks were made payable to John Torres and drawn on the general account of G.C.I. Construction from an Orange County bank. An owner of G.C.I. Construction testified at trial that the checks were not authentic G.C.I. Construction checks, noting that the phone number for G.C.I. printed on the checks was incorrect and the checks did not look like legitimate checks written by G.C.I. The owner also testified that G.C.I. Construction does not employ John Torres nor did he know who Torres was.
In a consolidated case, Perez was charged by a second amended information for possession for sale of methamphetamine (Health and Saf. Code, § 11378), attempted destruction of evidence (Pen. Code, § 664 & 135) and being an accessory after the fact to the crime of forgery (Pen. Code, § 32). It was further alleged that Perez suffered two prior convictions of a serious or violent felony and had a prior violation of Health and Safety Code section 11378. (Pen. Code, §§ 1170.12, subds. (a) - (d), 667, subds. (b) - (i).) The information also alleged Perez was out on bail at the time he was implicated in the forgery of the checks. (Pen. Code, § 12022.1.)
At trial, the prosecution presented evidence as stated above. The defense presented testimony from John Torres, Perez's roommate. Torres testified that Perez's nephews were staying with them and had brought the methamphetamine into the apartment. Torres flushed the baggies in the toilet because "we didn't want that crap in the house." Torres also testified that he was the passenger in the BMW the day Perez was pulled over for failing to stop and signal. Knowing he had an outstanding warrant, Torres handed Perez the three checks but did not tell him anything about the checks. He also denied telling Perez to hide the checks. Torres plead guilty to fraud in connection with the forged checks.
A jury found Perez guilty as charged. In a bifurcated trial, he admitted the two prior strikes, the two prior prison terms pursuant to Penal Code section 667.5, subdivision (b) and the special "out-on-bail" allegations pursuant to section 12022.1. Perez was sentenced to a total of 11 years in state prison. He timely appealed on November 18, 2010.
DISCUSSION
Perez does not challenge his conviction on the drug counts. Instead, he contends the prosecution failed to produce evidence which proved beyond a reasonable doubt that he knew Torres had forged the checks and intended to help Torres get away with the crime. As a result, no rational jury could have found that he was guilty of the crime of being an accessory to a felony. We disagree.
Penal Code section 32 provides: "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony." A conviction under section 32 requires proof that (1) a principal committed a specified felony, (2) the defendant knew that the principal had committed a felony, (3) the defendant did something to help the principal get away with the crime, and (4) that as a result of this action the defendant intended to help the principal get away with the crime. (People v. Nguyen (1993) 21 Cal.App.4th 518, 536.) Perez claims there was insufficient evidence of the second and fourth elements of the crime.
" 'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] 'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' " (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Kraft (2000) 23 Cal.4th 978, 1053.)
In determining whether Perez had the requisite knowledge and intent, the jury may consider such factors as the defendant's possible presence at the crime or " 'other means of knowledge of its commission, as well as his companionship and relationship with the principal before and after the offense.' " (People v. Moomey (2011) 194 Cal.App.4th 850, 858 (Moomey).)In Moomey, for example, the accessory was the principal's boyfriend. (Id. at p. 854.) They arrived at a supermarket together, but entered separately. While the accessory wandered around the market with an empty shopping cart, the principal was seen twice entering the store with a large empty purse and leaving shortly afterwards with it "bulging." (Id. at pp. 853-854.) The appellate court found the accessory's relationship with the principal, their simultaneous presence in the store, and the apparent lack of a legitimate purpose for his presence in the market strongly suggested he was aware of the principal's intent. A jury could reasonably infer from the circumstances surrounding the entry and theft that the accessory knew the principal intended to steal when she entered the store. (Id. at p. 859.)
Similarly, the jury in this matter could reasonably have inferred that Perez had the requisite knowledge and intent. Torres and Perez had been roommates for approximately two years but had known each other their whole lives. Perez knew Torres worked for his brother-in-law's business, Quality Sweeping, and would be paid by Quality Sweeping. Torres told Perez he was on his way to cash the checks when Perez picked him up in his BMW. When they were pulled over and Torres was arrested, Torres told Perez to hold his checks until he got out of jail. Torres denied telling Perez to hide the checks. Nevertheless, Perez did not put the checks in his pocket or the glove box. Instead, he undid the leather casing in the gear box, put the checks underneath and refastened the casing. From these facts, the jury could reasonably infer that Perez knew Torres had forged the checks and intended to help him get away with the crime by hiding the checks.
Perez contends the facts can be interpreted differently. After all, good friends often keep secrets from one another. "Additionally, there could be any number of legitimate reasons why appellant chose to put the checks under the gear shift area for safe keeping . . . Perhaps appellant thought he might forget about the checks if they were in his pocket. Perhaps the gear shift area is where appellant kept items as there was no indication he struggled to loosen the leather from around the gear shift suggesting appellant had used this area before." While the jury could have reached these conclusions, it did not. We may not reverse simply because a contrary inference can be drawn from the circumstances. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
DISPOSITION
The judgment is affirmed.
BIGELOW, P. J. We concur:
RUBIN, J.
GRIMES, J.