Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MF030197A
Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury found defendant James Burton Weinstein guilty of receiving stolen property (Pen. Code, § 496, subd. (a)), vandalism (§ 594, subd. (a)), and resisting arrest (§ 148, subd, (a)(1)). Defendant admitted he had a prior serious felony conviction (§ 1170.12, 667, subd. (d)), and had served a prior prison term (§ 667.5, subd. (b)).
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends his section 1118.1 motion should have been granted, and his convictions for possession of stolen property and vandalism should be reversed, because there was insufficient evidence of: (1) his identity as a perpetrator, (2) his knowledge of the presence of the stolen property, and (3) his dominion or control over the stolen property. We shall affirm.
BACKGROUND
At around 6:45 a.m. on November 23, 2006 (Thanksgiving morning), maintenance workers, Mark Marro and Jim Greco, arrived at the entrance of Woodward Park in Manteca. They were there to clean the park and public restrooms. As they drove into the park, they immediately noticed that someone had knocked over a group of portable restrooms and that there was a black Ford Taurus nearby. The Taurus was the only vehicle in the park.
As they pulled into the parking lot, the workers saw two people walking quickly toward the Taurus. Marro believed the pair were both Caucasians, and Greco believed one was male and the other was female. The pair was walking from the area of the electrical power station controls for the park’s pump irrigation system.
The workers were immediately suspicious. Greco recorded the license number of the Taurus as the pair drove away and the workers checked the electrical box. The lock on the box had been broken or cut off and copper wiring appeared to have been taken.
Greco immediately called the police and reported the missing copper wire. The call was received at the police department at 6:45 a.m. Greco described the suspects to police as a male and female driving a black Ford Taurus, and provided the license plate number of the Taurus. He further advised the officer that, because he had not seen the Taurus going westbound on Moffat Boulevard after leaving the park, he believed they had gone eastbound on that thoroughfare.
Manteca Police Officer James Chiek was on duty and patrolling with his partner in the area. At 6:49 a.m., dispatch put out a report that two possible suspects involved in a theft of wire had been seen leaving Woodward Park in a black Ford Taurus. Dispatch provided the license plate number given by Greco. One minute later, at 6:50 a.m., Officer Chiek saw the Taurus going westbound on Moffat Boulevard. The Taurus was approximately a mile and a half from Woodward Park. Officer Chiek made a vehicle stop, but as he and his partner approached the Taurus, the driver sped off.
A vehicle chase ensued, with officers in three squad cars pursuing the Taurus. The chase finally ended when the officers employed a pursuit technique to cause the Taurus to spin out and stall. The driver of the Taurus attempted to restart the engine but officers blocked any possible escape.
Codefendant Michella Amonson was the driver of the Taurus and defendant was in the front passenger seat. Defendant was noncompliant with officers in their attempt to arrest him and was eventually subdued with a Taser gun. The pursuit and arrest was recorded by video cameras in two of the squad cars and shown to the jury.
In the trunk of the Taurus, officers found bolt cutters, a large wire cutter, pliers, and large-gauge copper electrical wire. An investigator whose primary job is documenting thefts of copper wire, testified that the wire cut from Woodward Park and the wire found in the trunk of the Taurus were similar. A maintenance supervisor for the City of Manteca assessed the damage done to the electrical panel in Woodward Park. Over 600 feet of copper wire had been cut from the system. The copper wire found in the Taurus was of the same type (“four-ought gauge”) as the wire stolen from the park. He noted that bolt cutters are commonly used to cut copper wiring of this heavy gauge.
Defendant and codefendant Amonson both testified at trial, providing conflicting testimony. Amonson testified that she had called defendant that morning to borrow money for gasoline. He was out walking his Rottweiler dog and she picked him up in her car around 5:30 a.m. She then drove to an AM-PM convenience store so defendant could break a $100 bill and she could get gas. She left defendant’s dog in the car and the car running while she and defendant were in the store. When she saw defendant’s dog outside the door to the store, she also saw that her car had been taken.
Amonson also testified she set out on foot to look for her car. Approximately 45 minutes later, she arrived at Woodward Park and saw her car. The keys were hanging from the trunk lock. She got in her car and drove away. She went to pick defendant up and, less than one minute after he got into the car, a police officer tried to pull her over. She started to stop but defendant shouted, “Go, go, go. I’m fucked.” She drove away “against her will,” with defendant screaming at her and disposing of a glass narcotics pipe during the pursuit. The tools found in the trunk after she was ultimately stopped were hers, as she sometimes worked as a locksmith.
Defendant testified that he had spent the night before at a Manteca motel. He was out walking his dog when Amonson pulled up and asked to borrow some gas money. Defendant suggested they return to the motel where he had his wallet. Amonson pulled over near the motel and defendant started to take off his seatbelt to get out when, suddenly, Amonson accelerated away. At this point, he realized the police were pursuing her. He screamed at Amonson to stop and let him out, since he “didn’t want any part of it.” When the officers finally stopped the car, he put his hands up in surrender. He then went to unhook his seatbelt and the officers threw him to the ground. At that point, everything became a blur.
DISCUSSION
At the close of the People’s case-in-chief, defendant moved for judgment of acquittal (§ 1118.1) on the counts for receiving stolen property, burglary, and vandalism. The trial court dismissed the burglary count because it found the electrical area was not a building for purposes of burglary, but denied the motion to dismiss the other two counts.
Defendant contends that (a) the trial court erred in denying his section 1118.1 motion to dismiss the receiving stolen property and vandalism counts for lack of evidence, and (b) the evidence on these counts was insufficient to support his conviction. We shall dispose of the two contentions together, since the standard of review for the dismissal motion is similar to the standard of review for the claim that the evidence is insufficient to support the judgment. (People v. Mendoza (2000) 24 Cal.4th 130, 175 [section 1118.1 motion should be denied when there is any substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged].)
Section 1118.1 states in pertinent part: “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.”
In ruling on a section 1118.1 motion, the trial court must “determine whether from the evidence then in the record, including reasonable inferences to be drawn therefrom, there is substantial evidence of the existence of every element of the offense charged. [Citations.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89; People v. Mendoza (2000) 24 Cal.4th 130, 175.) “The standard applied by the trial court under section 1118.1 in ruling on a motion for judgment of acquittal is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. 2.)
“In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey, supra, 2 Cal.4th at p. 432, fn. omitted.)
Defendant argues that his involvement in the crimes was not satisfactorily proven. He bases this argument on his assertion that the witnesses did not provide a sufficiently detailed physical description of the individuals they saw getting into the Taurus at the park. He argues the rest of the evidence of his identity, as well as the evidence that he knew there was stolen wire in the trunk of the Taurus, was circumstantial and, therefore, insufficient. His argument is not well taken.
The standard of review does not differ where the prosecution case is mainly circumstantial. “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two [reasonable] interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (People v. Bean (1988) 46 Cal.3d 919, 932-933; see also CALJIC No. 2.01.)
Here, there was evidence that two people, a man and a woman, were seen quickly walking to the Taurus, in the early morning hours in an otherwise empty park. The Taurus was parked next to the electrical box from which wire was stolen. Within five minutes, defendant and his female cohort were seen driving in the Taurus in the near vicinity of the park. They attempted to evade officers and defendant resisted arrest. Wire matching the type stolen from the park was found in the trunk of the Taurus, along with tools commonly used to steal such wire.
In his appellate brief, defendant repeatedly states that he was “found in Ms. Amonson’s car half an hour later.” The evidence, however, was that the officers began pursuing the Taurus (in which defendant was later found to be a passenger) within five minutes of the workers seeing the Taurus in Woodward Park.
We agree with the trial court that this is sufficient evidence to sustain convictions for vandalism and receiving stolen property. The general physical description provided by the witnesses, along with the timing, temporal proximity, and evasive conduct, are sufficient to support the inference that defendant and Amonson were culpably involved in the vandalism and theft of the electrical equipment in the park and that, accordingly, defendant knew that wire was in the trunk.
Denying defendant’s section 1118.1 motion, the trial court stated: “I don’t think we really know when was the last time anybody saw the wires in an undisturbed state or the locks in an uncut state, but I think we can infer that the wire was stolen. And while there’s no – no expert testimony saying the wire in the vehicle is the wire in the park, I think we have [evidence] it’s similar. And I think, circumstantially, there’s enough evidence to infer that the wire in the vehicle was in fact the wire that was in the park. [¶] Also, the same would hold true for the 594 [vandalism]. I think there’s enough evidence to infer that the two defendants are responsible for the 594 as well.”
Defendant’s contention that there was insufficient evidence he had dominion or control of the stolen wire flows directly from his faulty assumption that there was no evidence he knew it was in the trunk. He argues that his mere presence as a passenger in a friend’s car, without more, cannot establish dominion or control of items in the trunk. As we have just discussed, however, there was sufficient evidence to support the inference that defendant was culpably involved in the vandalism and theft of the electrical equipment in the park and knew that wire was in the trunk. Thus, we reject his argument.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.