Opinion
C064006 Super. Ct. No. 08F9769
08-22-2011
THE PEOPLE, Plaintiff and Respondent, v. OUTA SAECHAO, Defendant and Appellant.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Outa Saechao of petty theft with a prior (Pen. Code, § 666; undesignated section references are to this code) and fraudulent use of an access card, a misdemeanor (§ 484g). In bifurcated proceedings, the trial court found a strike prior and a prior prison term allegation to be true.
Sentenced to state prison, defendant appeals. He contends (1) the trial court erroneously denied his motion for an acquittal at the close of the prosecution's case, (2) the trial court prejudicially erred in failing to instruct on mere presence and aiding and abetting, and (3) counsel rendered ineffective assistance in failing to request the instructions on mere presence and aiding and abetting. We affirm the judgment.
FACTS
On June 20, 2008, Mary Meisner inserted her debit card into the automated teller machine (ATM) at Washington Mutual Bank in Redding. After typing in her access code, she made a deposit and then withdrew $100. Two men, later identified as defendant and Kao Saechao, were standing behind Meisner during her transactions. Meisner walked out the bank's door, failing to retrieve her debit card which was still in the ATM. She did not recall pushing the "no" button when prompted on the screen with the question whether she wanted another transaction. Nor did she recall that her card had been ejected. Defendant and Kao immediately walked up to the ATM. Defendant looked at the screen and used the ATM keypad. After withdrawing $300 from Meisner's account, defendant and Kao left the bank. Meisner did not know defendant or Kao and did not give either permission to withdraw money from her account. Kao, who had an account at the bank, did not use his debit card that day to withdraw money from his account.
When Meisner balanced her checkbook, she discovered the $300 withdrawal posted on her account on June 20, realizing that she had left her debit card in the ATM. She reported to the bank and law enforcement that there had been an unauthorized use of her debit card. The bank canceled her debit card and advised that her card had also been used for a $46.01 transaction at a Circle K Store which Meisner had not done.
The police obtained the bank's ATM surveillance photographs and officers identified defendant and Kao. The bank photographs were introduced at trial.
On June 26, 2008, Redding Police Officer Robert Wilson interviewed Kao who had been arrested for an unrelated crime. Kao was very apologetic and wanted to pay the money back. He did not seem scared. Kao explained that when he tried to put his debit card into the ATM the card would not go in and defendant stepped up to help. After the transaction, defendant grabbed the debit card from the machine and they left. In defendant's car, defendant and Kao discussed the debit card and the money taken from the ATM. They discussed returning both but decided not to because they would get into trouble. Kao never stated that he had tossed the debit card out the window and into the neighbor's trash, contrary to his testimony at defendant's trial.
On September 18, 2008 and again on September 22, 2008, Kao called Officer Wilson but never said that he had lied about defendant's involvement during the June 26, 2008, interview. Kao told the officer that he had been unable to locate defendant in order for the officer to interview him.
A fraud investigator for the bank explained at trial that an ATM would not accept a second debit card if a card was already in the machine. The machine would display a message asking whether another transaction was desired. The maximum amount that could be withdrawn from certain accounts was $400.
Kao testified at defendant's trial. Kao and defendant are cousins. About a week prior to the incident, Kao opened a savings and a checking account at Washington Mutual, depositing about $10 into each. On June 20, 2008, Kao went to the bank with defendant to withdraw money from Kao's account. Kao had never used an ATM. Kao tried to insert his card but words "pop[ped] up." Kao put his card into his pocket. Kao never entered his personal identification number. Kao did not understand the words and asked defendant for help. Defendant asked how much Kao wanted to withdraw. Kao said he wanted $300, the maximum. Defendant operated the ATM and $300 came out as well as the debit card. Kao claimed he took the money and card. Kao believed that $300 had come from his account because he had overdraft protection.
Defendant and Kao went to Kao's home. After defendant left, Kao checked his pocket and found two debit cards. Kao then realized that he had withdrawn money from someone else's account. Scared, Kao threw the debit card out the window and into the neighbor's trash. Kao denied using the Meisner's debit card at Circle K.
Kao denied telling the officer that defendant took Meisner's card. But Kao also testified that he told the officer that defendant must have the card because he (Kao) did not take it out of the machine. Kao stated that he was scared, having been arrested for something else, and lied to the officer because he did not want to get into more trouble. Kao also claimed he lied when he told the officer that he and defendant spent the money on food and "stuff" at the mall. Kao claimed defendant never handled the money or the card. Kao denied telling the officer that he and defendant had discussed the card in defendant's car. Kao claimed he lied when he told the officer that he and defendant decided not to return the money or card because they would get into trouble. Kao later denied telling the officer any such thing. Kao admitted asking the officer during the interview and later in September whether he could pay the money back. Kao admitted that he never told the officer that defendant was not involved. Kao testified that he had lied when he said otherwise to the officer. Kao claimed he had tried to tell the officer after the interview that he had lied. Kao admitted that he never informed the prosecutor that defendant was not involved. In January 2009, Kao told a defense investigator what really happened.
The parties stipulated that defendant had a prior conviction for theft of a firearm and had served a prison term for that conviction.
A defense investigator testified that on January 6, 2009, he spoke with Kao who came to the investigator's office. Kao claimed he was responsible for getting defendant into trouble and gave the investigator the story Kao told at trial. The investigator admitted on cross-examination that the defense never informed the prosecutor of Kao's statements on January 6, 2009.
DISCUSSION
I
Defendant contends that the trial court erroneously denied his motion for judgment of acquittal sought at the close of the prosecutor's case (§ 1118.1). We disagree. Background
Section 1118.1 provides:
"In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right."
Defendant asserted Kao's testimony was insufficient to prove defendant's guilt. The prosecutor claimed the statements Kao made during his interview with the police, which were admitted at trial and corroborated by the bank surveillance photos, constituted sufficient evidence to prove defendant's guilt.
In denying the motion, the trial court stated: "Well, I was looking for CALCRIM [No.] 318 and this case rests very heavily upon that impeachment evidence. [1] That [instruction], 318, provides that, 'You've heard evidence of a statement that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways. One, to evaluate whether the witness's testimony in court is believable. And two, as evidence that the information in those earlier statements is true. [5] And it sounds like from [Officer] Wilson that Kao Saechao provided statements previously to the police department that could, by themselves, be the basis for a reasonable juror convicting in the case. So, on that basis, I'll deny the 1118.1 motion." Analysis
Defendant argues there was insufficient evidence to corroborate the statements of Kao who, defendant now claims, was an accomplice as a matter of law. Defendant's argument on appeal lacks merit.
Defendant did not argue in the trial court that Kao was an accomplice as a matter of law. Instead, he argued defendant was not an accomplice and was merely present at the bank. Defendant argued in the trial court that Kao's trial testimony was insufficient to show defendant took the card and the money. Defendant directed the jury to an instruction that "mere presence at the scene of a crime is not a crime."
In ruling on a section 1118.1 motion, the trial court must decide whether "'the sufficiency of the evidence to support a conviction, that is, "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged."'" (People v. Stevens (2007) 41 Cal.4th 182, 200.)
As applied to accomplice testimony, for purposes of a motion under section 1118.1, corroboration is required only when the witness is an accomplice as a matter of law. (§ 1111; People v. Boyce (1980) 110 Cal.App.3d 726, 735-736 (Boyce).) "Where the evidence is clear and uncontroverted, the court may determine as a matter of law that a witness is an accomplice, but where there are disputed facts or conflicting inferences, this question must be left to the jury to decide. [Citation.]" (Id. at p. 735; People v. Garceau (1993) 6 Cal.4th 140, 184; People v. Hoover (1974) 12 Cal.3d 875, 880.)
Here, there are disputed facts and conflicting inferences as to whether Kao was an accomplice. There was evidence that Kao and defendant committed the crimes together, both being principals. And there was evidence, Kao's trial testimony, that exculpated defendant. But there was evidence which, if believed by the jury, would support a finding that Kao was not an accomplice and, thus, his testimony did not require corroboration. There was evidence that Kao did not use Meisner's debit card, did not take her debit card or money, and did not encourage or assist defendant in doing so. Bank surveillance photographs supported these inferences. Kao testified at trial that he had never used an ATM card and machine before and needed defendant's help. When interviewed shortly after the crimes, Kao claimed that defendant took Meisner's card and that they (Kao and defendant) discussed the money and card in defendant's car after obtaining the same. The jury could have determined Kao did not have the requisite intent for theft under an accomplice theory of liability. (See People v. Stankewitz (1990) 51 Cal.3d 72, 90-91, ["'an aider and abettor [must] act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating the commission of, the offense'"], original italics; see also People v. Carrington (2009) 47 Cal.4th 145, 191.) The evidence failed to establish the accomplice status of Kao as a matter of law because it was in dispute and subject to conflicting inferences. Since the issue of his accomplice status remained a question of fact for the jury's determination, there was no requirement that Kao's statements to the police be corroborated at the close of the prosecution's case-in-chief. (See People v. Garceau, supra, 6 Cal.4th at p. 184; Boyce, supra, 110 Cal.App.3d at pp. 735-737.) The question of adequate corroboration was therefore properly left to the jury to determine as the trial court so instructed.The trial court did not err.
The court instructed the jury in the language of CALCRIM No. 334 (Accomplice Testimony Must be Corroborated: Dispute Whether Witness is Accomplice) as follows:
"Before you may consider the statements of Kao Saechao as evidence against the defendant, you must decide whether Kao Saechao was an accomplice. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if one, he or she knew of the criminal purpose of the [] person who committed the crime. And two, he or she intended to and did in fact aid, facilitate, promote, encourage or instigate the commission of the crime or participate in a criminal conspiracy to commit the crime.
"The burden is on the defendant to prove that it is more likely than not that Kao Saechao was an accomplice. If you decide that a witness was not an accomplice, then supporting evidence is not required and you should evaluate his or her statements as you would that of any other witness.
"If you decide that a witness was an accomplice, then you may not convict the defendant of charged crimes based on his statements alone. You may use the statements of an accomplice to convict the defendant only if, one, the accomplice's statements are supported by other evidence that you believe. Two, the supporting evidence is independent of the accomplice's statements. And three, that supporting evidence tends to connect the defendant [] to the commission of the crimes.
"Supporting evidence, however, may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the charged crimes and it does not need to support every fact mentioned by the accomplice in the statements.
"On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. Any statement[] of an accomplice that tend[s] to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give those statements the weight you think they deserve, after examining them with care and caution and in the light of all the other evidence."
II
Defendant contends the trial court erred in failing to instruct on the theory of aiding and abetting (CALCRIM Nos. 400 and 401). We disagree.
"A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.]" (People v. Ervin (2000) 22 Cal.4th 48, 90.) A trial court must instruct the jury on aider and abettor liability when the prosecution relies on it as a theory of liability. (See People v. Beeman (1984) 35 Cal.3d 547, 550-551; People v. Sarkis (1990) 222 Cal.App.3d 23, 26-28.) However, a sua sponte instruction is not required if it is not supported by substantial evidence.
The prosecutor did not rely on the theory of aiding and abetting to demonstrate defendant's culpability in the theft. Instead, the prosecutor argued defendant was the actual perpetrator and Kao was an actual perpetrator as well or defendant's accomplice. There is ample evidence to support the prosecutor's argument.
As the prosecutor argued, Kao did not know how to use his debit card and asked defendant for help with the ATM machine. Kao's statements to the police and bank surveillance photographs showed that Kao stood at the ATM for a short time and could not get his debit card into the machine, and that defendant then took over. Kao's statements to police and bank surveillance photographs further showed that defendant was the last person at the ATM keypad, used the debit card in the ATM, pushed the buttons, and retrieved Meisner's card from the ATM, and presumably, the cash as well. Kao told police when interviewed that he and defendant used the money on food and other items at the mall. The prosecutor argued to the jury that defendant took Meisner's money without her consent, intending to deprive her of her money permanently, and that defendant used Meisner's debit card which he acquired without her consent, knowing that he had so acquired her card and intending to defraud her of her money.
Defense counsel argued that Kao took the money and the debit card and blamed defendant, citing Kao's trial testimony. Defense counsel claimed defendant was not an accomplice and did not encourage Kao, but was merely present at the bank, directing the jury to an instruction that "mere presence at the scene of a crime is not a crime." In the event the jury disagreed and concluded Kao was defendant's accomplice, defense counsel argued that Kao's statements during the police interview should be viewed with caution.
The prosecutor did not proceed on an aiding and abetting theory and substantial evidence does not support such a theory. However, there is substantial evidence to support defendant's conviction as an actual perpetrator. Accordingly, the trial court had no duty to instruct on aiding and abetting liability.
III
Defendant contends that defense counsel rendered ineffective assistance in failing to request jury instructions on aiding and abetting (CALCRIM Nos. 400 and 401). We disagree.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Defendant has failed to demonstrate that counsel's performance was deficient. As previously discussed, the prosecutor's theory of defendant's culpability was as an actual perpetrator and did not include aiding and abetting. Defense counsel's theory was that Kao was solely responsible based on his trial testimony that defendant was not involved or, in the alternative, if Kao was an accomplice, his statements to the police should be viewed with caution. Substantial evidence did not support an aiding and abetting theory. Under the circumstances, defense counsel's performance was not deficient in not requesting instructions not supported by the evidence. The jury concluded defendant was the actual perpetrator and, thus, it necessarily rejected defense counsel's argument that defendant was merely present.
DISPOSITION
Because defendant has a prior conviction for a serious felony, he is not entitled to any additional presentence custody credit under the recent amendments to sections 4019 and 2933. (§§ 1192.7, subd. (c)(26), 4019, former subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50; § 2933, subd. (e)(3); Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.)
NICHOLSON, J.
We concur:
RAYE , P. J.
MAURO , J.