Opinion
G054884
12-13-2018
Janice R. Mazur, 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, Arlene A. Sevidal and Stacy Tyler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16WF2510) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael F. Murray, Judge. Affirmed as modified and remanded. Janice R. Mazur, 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, Arlene A. Sevidal and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
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Jonathan Phan was convicted of one count of battery against a person with whom he has or previously had a dating relationship (Penal Code, § 243, subd. (e)(1)), and one count of identity theft. (§ 530.5, subd. (c)(2).) He appeals, arguing the evidence was insufficient to support the offense charged in either count because there was no evidence demonstrating (1) he was in a "dating relationship" with the victim of his battery, or (2) that he had willfully obtained the personal identifying information found on the floor behind the driver's seat of his car.
All further statutory references are to the Penal Code.
The Attorney General concedes the evidence was insufficient to demonstrate the nature of Phan's relationship with the woman he battered and consequently requests that we order the conviction on that count reduced to the lesser included offense of simple battery. However, Phan counters that the decision to reduce a conviction to a lesser included offense, rather than reverse his conviction outright, is a matter of judicial discretion, and argues we should exercise that discretion in favor of reversal because of the stress this prosecution has already caused him. We reject Phan's premise. While the trial court has authority to reduce a conviction to a lesser included offense as an alternative to ordering a new trial, there is no authority allowing an appellate court to reverse a conviction altogether because it feels sympathy for the defendant.
We consequently modify Phan's conviction for domestic violence battery (count 3) to simple battery, and remand the case to the trial court for resentencing on that count.
Phan's challenge to his identity theft conviction fails, however. The fact there was evidence from which the jury might have inferred that Phan was unaware of the documents located behind the driver's seat of his car does not preclude a finding that he was aware of them—and thus that he knowingly possessed those documents. We consequently affirm his conviction on that count.
FACTS
On the morning of January 22, 2016, Kevin Boggan discovered his garage door was open, although his habit was to close it each night when he parked his car in the garage. He quickly noticed that two bowling balls and a pair of bowling shoes, along with the bags containing them, were missing. Although there were other items in the garage, including an attaché bag containing financial documents, Boggan was late for work and he therefore did not take the time to determine if anything else was missing. He did not immediately report the theft.
On the afternoon of that same day, Brooke Jelnker was walking to her car in the parking lot of a Rite Aid when her attention was drawn to a white automobile with its windows down. The car was occupied by a man in the driver's seat, later identified as Phan, who was screaming loudly at a woman in the passenger seat. Jelnker testified, among other things, that Phan yelled at the woman, "This is what happens when you don't listen."
Jelnker then observed Phan throwing things from the car while he continued to yell, although she could no longer discern what he was saying. The female passenger got out of the car and began picking up the items on the ground—which Jelnker could not identify—and she walked into the Rite Aid.
Jelnker then called 911. While she was on the phone with the dispatcher, the passenger came out of the Rite Aid with a bag and walked back to the white car. By that time, Phan had moved to the car's passenger seat. After trying to open the vehicle's back door, the woman got into the driver's seat with her bag.
Phan resumed yelling at the woman, and Jelnker then saw him yank either the hair on the right side of the woman's head, or her ear, toward the car's console with what Jelnker described as a "drastic jolt." Approximately 30 seconds later, the police arrived.
When the police car pulled up to the white car, Phan made eye contact with one of the officers, pointed at him, and then got out of the car and began to walk away. The officer immediately detained Phan, and determined he was the registered owner of the white car. The officer noted the female passenger seemed agitated and confused. Her hair, otherwise styled tightly into a bun, had been pulled out on the right side and her right ear was red and inflamed.
While Phan was being detained, another police officer searched the white car. Among other things, including an open bowling bag with a ball inside, the officer found a DMV document and a checkbook bearing Boggan's name and address on the floor behind the driver's seat. The officers did not ask Phan's passenger anything about the documents bearing Boggan's name and address.
Boggan was subsequently contacted by the police, and he identified the documents bearing his name and address as belonging to him. He then formally reported his mysteriously opened garage and the items stolen from inside it.
The parties stipulated that in 2015, Phan pleaded guilty to a charge of identity theft pursuant to section 530.5, subdivision (a).)
Phan was charged with five offenses: residential burglary (§§ 459, 460, subd. (a); count 1); acquiring or retaining, for fraudulent purposes, the personal identifying information of another, with a prior conviction for an identity theft crime (§§ 530.5, subd. (c)(2), 530.55, subd. (b); count 2); domestic violence battery (§ 243, subd. (e)(1); count 3); possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 4); and possession of paraphernalia for using a controlled substance (Health & Saf. Code, § 11364, subd. (a); count 5.)
Phan pleaded guilty to counts 4 and 5, possession of a controlled substance and paraphernalia, and trial commenced on the other charges in March 2017. After the conclusion of the prosecutor's case, the court granted Phan's motion to dismiss count 1, residential burglary, pursuant to section 1118.1.
The jury convicted Phan on the counts alleging domestic violence battery and identity theft. The court later suspended imposition of sentence on the count of domestic violence battery, and placed Phan on five years formal probation on condition he serve 912 days in jail, with credit for 912 days served as to count 2. The court sentenced Phan to serve a concurrent 180 days in jail on counts 3, 4 and 5.
DISCUSSION
Phan contends his convictions on the counts alleging domestic violence battery and identity theft must each be reversed due to insufficiency of the evidence.
A conviction will be reversed for insufficiency of the evidence only if it is established "'that upon no hypothesis whatever is there sufficient substantial evidence to support [it].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.) "This standard of review also applies to circumstantial evidence." (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) Thus, "each of [the offense's] essential elements may be proved by circumstantial evidence and any reasonable inferences drawn from such evidence." (Id. at p. 956.) "If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (Id. at p. 955.)
1. Domestic Violence Battery
Phan argues the evidence is insufficient to sustain his conviction on domestic violence battery, which requires the perpetrator and victim be engaged in, or have previously been engaged in, a domestic or romantic relationship (§ 243, subd. (e)(1)), because there is no evidence in the record demonstrating the nature of his relationship with the female passenger in his car. The Attorney General concedes the point, noting "[t]he only evidence of the relationship between [Phan] and the woman in the white Nissan was their presence together in the car and [Phan's] angry screaming at and violence toward her."
And having conceded the point, the Attorney General asserts the proper remedy is for us to reduce the charge to the lesser included offense of simple battery (§ 242 [defining battery as the "willful and unlawful use of force or violence upon the person of another"]), in accordance with People v. Yonko (1987) 196 Cal.App.3d. 1005, 1010 (Yonko).
Phan responds by claiming Yonko reflects that in these circumstances, this court has discretion to either reduce the conviction to the lesser included offense or reverse it outright. As he points out, Yonko uses the word "may" in describing the court's option to reduce the conviction: "where the evidence is insufficient to sustain the offense charged but shows that the defendant is guilty of a lesser included offense, or an attempt to commit the offense, or a lesser degree of the offense, the court may reduce the crime rather than reverse outright." (Yonko, supra, 196 Cal.App.3d. at p. 1010.) Phan then urges us to exercise that discretion to reverse his conviction outright, "in the interest of justice," as a recognition of the fact he "has been subjected to the stress of defending two charges which should never have been brought against him."
We cannot do as Phan requests. While Yonko does make the statement Phan relies upon, none of the authorities it cites in support of that statement suggest it would be appropriate for the appellate court to reverse the judgment outright—to effectively acquit him on the count—when the evidence is sufficient to support his conviction on a lesser included offense.
Section 1159 states only that the trier of fact may find the defendant guilty of a lesser included offense to the one charged; section 1181, subd. 6, states that when evidence is insufficient to support the charged offense, but shows the defendant is guilty of a lesser offense, the trial court may modify the verdict accordingly without ordering a new trial; In re Hess (1955) 45 Cal.2d. 171, 174, cites and quotes section 1159; Yonko, supra, 196 Cal.App.3d at p. 1010, holds that "where the evidence is insufficient to sustain the offense charged but shows that the defendant is guilty of a lesser included offense, or an attempt to commit the offense, or a lesser degree of the offense, the court may reduce the crime rather than reverse outright." Thus, while each of these citations supports the court's authority to convict the defendant of a lesser included offense when the evidence supports it, none of them authorizes the alternative: i.e., that the appellate court may disregard the evidence, already deemed credible by the trier of fact, reflecting the defendant's commission of the lesser included offense. --------
Instead, as explained in People v. Navarro (2007) 40 Cal.4th 668, the traditional disposition in such a case—prior to the enactment of section 1181, subdivision (6), which authorized the reduction of a conviction to the lesser included offense—did not terminate the prosecution, as Phan seems to believe. Rather, it required that "'[t]he case . . . be remanded for a new trial.'" (Id. at p. 676.) Thus, even if we were sympathetic to Phan's claim of undeserved stress related to the prosecution of this case, our only alternative to reducing his conviction to the lesser included offense would be to prolong his stress by ordering a new trial on that charge.
Moreover, given that a properly constituted jury has already concluded that Phan committed all of the elements of simple battery, and it is undisputed the evidence was sufficient to support that conclusion, it would be a waste of judicial resources to remand the case to retry that same offense. We consequently modify the conviction to reflect Phan's commission of the lesser included offense of simple battery.
2. Identity Theft
Phan also argues the evidence is insufficient to sustain his conviction for identity theft because "the evidence [is] insufficient to support a finding that [he] willfully obtained personal identifying information." However, as the Attorney General points out, the language Phan relies on comes from section 530.5, subdivision (a), whereas the offense he was convicted of is a violation of section 530.5, subd. (c)(2). That offense is committed by any person who "acquires or retains possession of the personal identifying information . . . of another person." (§ 530.5, subd. (c)(2), italics added.)
Here, the evidence showed that Boggan's personal identifying information was found on the floor in the back of Phan's car, which Phan was driving. Phan consequently "possessed" that personal identifying information. (People v. Williams (1971) 5 Cal.3d 211, 215 ["possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another."].)
Phan suggests, however, that the evidence is insufficient to support the inference he knew those papers were in his back seat. He points out the police officer testified "there were a lot of different items in the car," which was "messy" when it was searched, to undermine the inference he was actually aware the purloined documents were among the debris. We do not see it that way. There is no evidence suggesting that messy people are less aware of their possessions than are tidy people.
The only specific evidence Phan points to, which could support the inference he was not aware of the documents existing in his own back seat, is the fact Jelnker testified that his female passenger might have placed her bag of loose items in the back seat when she returned to the car. If the evidence demonstrated there was nothing other than the contents of that bag in Phan's back seat, or that the documents were actually found inside the bag, we might agree it would have been unreasonable for the jury to reject the inference it was Phan's passenger who had put them there. But neither of those things is true.
The back seat of Phan's car was loaded with a variety of items, not just the female passenger's bag, and the police officer specifically testified the papers containing Boggan's personal identifying information were "lo[o]se on the ground," and not "contained in any sort of bag." Consequently, Phan's potential knowledge of the contents of his vehicle presented the jury with a question of fact. It was reasonable for the jury to infer that it was Phan, the owner of the car, rather than his passenger, who was responsible for the documents located in the back of his car. And that reasonable inference is sufficient to support the conclusion that Phan knowingly possessed the documents.
DISPOSITION
The judgment is modified to reflect that Phan is convicted of simple battery (§ 242) in count 3, and the case is remanded to the trial court for resentencing on that count. In all other respects, the judgment is affirmed.
GOETHALS, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.