Opinion
D067731
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN IVAN PINEDA, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS272772) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Reversed in part and affirmed in part. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Juan Ivan Pineda was convicted on multiple charges arising from his burglary of an apartment, his flight from the scene and subsequent apprehension by police officers. On appeal, Pineda argues there was insufficient evidence he possessed a concealed dirk or dagger within the meaning of Penal Code section 21310. In particular, Pineda argues there was insufficient evidence that the knife found in his possession, which folded, was in a locked position at the time he was apprehended.
All further statutory references are to the Penal Code unless otherwise indicated.
Pineda also argues the prosecution did not produce substantial evidence he concealed or destroyed evidence, to wit: a computer he took during the burglary and threw into San Diego Bay during his flight from police officers. Because the computer was recovered and physically intact, he argues that at most he was guilty of the lesser included offense of attempted concealment or destruction of evidence and that the jury should have been instructed on that lesser offense.
Finally, defendant claims the trial court should have struck rather than stayed a sentence enhancement for a prior strike and that the abstract of judgment contains an error.
We initially affirmed Pineda's conviction and ordered that an error in the abstract of judgment be corrected. Pineda filed a petition for review, which was granted. The Supreme Court vacated its order granting review and remanded the case to us for reconsideration in light of People v. Castillolopez (2016) 63 Cal.4th 322, 329-334 (Castillolopez). In Castillolopez, the court held that a nonlocking folding knife, which can be closed by simply exerting pressure on the blade, is not a dirk or dagger within the meaning of sections 21310 and 16470. (Castillopez, at p. 333.) In particular, the court rejected the Attorney General's contention that a folding knife, which is held in an open position by friction, falls within the scope of those weapons statutes. (Id. at pp. 331-333.)
In light of Castillolopez, we reverse Pineda's conviction for possession of a concealed dirk or dagger in violation of section 21310. At trial, the only evidence presented to the jury with respect to the knife Pineda was carrying at the time of his arrest was the testimony of the arresting officer, who stated that the knife was in "the fixed position" and photographs of the knife. The photographs of the knife do not show any mechanism in the knife which holds the blade in an open position such that, in order to close the blade, a user must do more than simply apply pressure to the blade. Because folding knives can and frequently are held in a "fixed" position by friction alone, the officer's testimony is not sufficient to support the jury's verdict on the weapons count. Accordingly, we reverse that conviction. In all other respects, the judgment of the trial court is affirmed.
PROCEDURAL OVERVIEW
In early January 2015, a jury convicted defendant of first degree burglary (§§ 459, 460; count 1), carrying a concealed dirk or dagger (§ 21310; count 2), resisting an officer (§ 148, subd. (a)(1); count 3), destroying or concealing evidence (§ 135; count 4) and petty theft (§ 484; count 5). In a bifurcated bench trial, the court found it true that defendant suffered a prior strike (§§ 667, subds. (b)-(i), 668 & 1170.12), that defendant had committed a prior serious felony (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c)), and that defendant had previously served time in prison (§§ 667.5, subd. (b) & 668). The court denied defendant's motion to strike his prior strike conviction in February 2015. Instead, the court stayed imposition of the prior prison term enhancement because it arose from the same offense as the prior serious felony enhancement. The court sentenced defendant to a total term of 10 years 4 months imprisonment.
FACTUAL OVERVIEW
On June 12, 2014, Coronado Police Officer Ryan Rose responded to a call reporting a suspicious person walking across lanes of traffic on State Route 75 carrying a concealed item under his shirt. Rose spotted defendant, who matched the description of the suspect. Defendant had his hands concealed in the front of his waistband, which led Rose to believe that defendant was carrying something under his shirt. Rose stopped his patrol car and got out. When Rose asked to speak to defendant, defendant responded by walking away at a "brisk pace." Defendant began running towards the beach as other police officers approached the scene. Defendant temporarily escaped the pursuing officers by scaling a gate and entering the residential community of Coronado Cays.
A laborer who was at work installing stones at a home in Coronado Cays near a boat dock spotted defendant swimming in San Diego Bay and watched defendant climb out of the bay, onto a dock. The laborer testified that the water defendant swam in was "kind of deep." Once on the dock, defendant began pulling items out of his waistband and dropping them into the water. Among the items the laborer saw defendant toss into the bay was a laptop computer, which defendant tossed about 10 to 15 feet into the water from the edge of the dock. Police officers arrived at the residence where the laborer was working and spotted defendant. They commanded defendant to stop, but he jumped back into the bay.
Defendant swam to another dock in an adjacent cay, climbed the dock, and entered the backyard of a nearby home where he was found and arrested. Rose arrived at the scene while defendant was being arrested. He saw that defendant had an open pocket knife in his pocket with the blade partially protruding through the bottom half of the pocket. At trial, Rose testified that the pocket knife was in a "fixed open position."
A harbor patrol boat arrived at the scene where defendant dropped the items into the bay. Officers asked the laborer to show them the spot where defendant dropped the items into the water. A marker was placed at the approximate site where the items were dropped, and divers recovered a laptop computer. The computer had a sticker on it identifying the victim, her address and phone number. The computer was returned to the victim, but the computer no longer worked. The victim testified that her apartment was burglarized in the morning while she was out on a walk, the same morning defendant was arrested. The tread on boots defendant was wearing on the day of his arrest resembled footprints made in the sand outside the victim's apartment.
DISCUSSION
A. Defendant's Conviction for Carrying a Concealed Dirk or Dagger
As he did in the trial court, on appeal Pineda argues the People failed to produce evidence the pocket knife he was carrying was a dirk or dagger within the meaning of sections 21310 and 16740.
When a defendant challenges the sufficiency of the evidence presented at trial, the appellate court must review the record "to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Green (1980) 27 Cal.3d 1, 55.) The reviewing court must "presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Section 21310 bars the carrying of a concealed "dirk or dagger." A pocket knife qualifies as a dirk or dagger under section 21310 "only if the blade of the knife is exposed and locked into position." (§ 16470; accord, In re George W. (1998) 68 Cal.App.4th 1208, 1214.) In Castillopez, the court rejected the People's argument that a folding knife on which the blade is held in an open position by friction alone and may be closed by simply exerting pressure on the blade meets the statutory definition of a dirk or dagger. "[T]he essential difference between a nonlocking folding knife and a locking folding knife has been understood to be whether the exposed knife blade is immobile, thereby preventing accidental collapse while the knife is in use. [Citation.] We presume the Legislature was aware of this usage when it enacted the present version of [section 16470] in 1997. [Citation.] It follows that when the Legislature referred to blades 'locked into position,' it intended to refer to knives with blades rendered immobile, as by operation of a locking mechanism, rather than knives with blades that could be collapsed simply by folding the blade back into the handle." (Castillopez, supra, 63 Cal.4th at p. 331 (italics added).)
The only evidence the People produced to support the section 21310 charge was Rose's testimony that the knife was in a "fixed open position" and photographs of the knife. In explaining what he meant by "fixed open position," Rose stated: "If you have a knife that folds open, that's a fixed open position." The photographs admitted into evidence show the knife in an open position. However, none of the photographs show any locking mechanism on the knife. Although one photograph shows a button on the lower side of the knife (exhibit 46), a second photograph of the interior mechanics of the knife (exhibit 48), appears to show that the button is not connected in any fashion to the blade in the open position.
Rose's testimony establishes no more than that the knife was a folding knife; it does not provide any evidence that the knife had a locking mechanism as required by Castillolopez. Likewise, the photographs of the knife admitted into evidence do not provide any evidence which shows the knife had a locking mechanism.
In sum, there is no evidence the knife found on Pineda was a dirk or dagger within the meaning of section 21310 and his conviction of that offense must be reversed.
B. Defendant's Conviction for Destroying or Concealing Evidence
Section 135 provides: "A person who, knowing that any book, paper, record, instrument in writing, digital image, video recording owned by another, or other matter or thing, is about to be produced in evidence upon a trial, inquiry, or investigation, authorized by law, willfully destroys, erases, or conceals the same, with the intent to prevent it or its content from being produced, is guilty of a misdemeanor."
Pineda contends his conviction for destroying or concealing evidence must be reversed because his effort to destroy or conceal the laptop computer he threw into the bay was unsuccessful. In People v. Hill (1997) 58 Cal.App.4th 1078 (Hill), the court discussed criminal destruction or concealment of evidence. In Hill, a defendant, while being pursued by police, wadded up fraudulent traveler's checks and threw them out his car window. The police officer pursuing the defendant saw him throw the checks out the window, quickly recovered them and they were produced at trial. (Id. at pp. 1089-1090.) The court reversed the defendant's conviction for destruction or concealment of evidence. (Id. at p. 1092.) The court stated: "The purpose of section 135 is to prevent the obstruction of justice. [Citation.] The plain meaning of 'destroy' is to ruin something completely and thereby render it beyond restoration or use. [Citation.] Under this definition, if one destroys evidence, it necessarily becomes unavailable and cannot be produced. Conversely, if, despite one's efforts, the evidence is or can be restored and used, then, by definition, it has not been destroyed; rather, such efforts constitute an attempt: a direct, but ineffectual, act toward the commission of a crime." (Id. at p. 1089.)
With respect to what constitutes concealment, the court in Hill stated: "The word 'conceal' simply means to hide or cover something from view. [Citation.] Section 135 proscribes concealing evidence 'about to be produced in evidence upon any trial, inquiry, or investigation.' Given its plain meaning, 'conceal,' in context, does not necessarily or reasonably suggest that a defendant must render evidence permanently unseen, or as defendant submits, unavailable. Rather successful concealment of evidence from a particular investigation is sufficient. [¶] Moreover, we must view the term in context and in light of the purpose of the statute. One can obstruct the administration of justice in varying degrees and in a variety of ways. Obviously, to permanently conceal evidence is a substantial obstruction of justice. To a lesser degree is any act of concealment that interferes with, impedes, frustrates, or unnecessarily prolongs a lawful search. [¶] "For example, a thief eludes the police and buries his booty in a neighbor's backyard. Police arrive and search him and his property but find nothing. The next day, a neighbor leads them to freshly tilled earth in his yard, and they dig up the stolen property. Has the thief violated the statute or merely attempted to do so? Given the ordinary meaning of 'conceal,' the purpose of the statute, and its applicability to any investigation, the thief has, in our view, violated the statute: his conduct successfully hid stolen property from view during the first search of him and his property and thereby impeded, frustrated, and prolonged an investigation of the theft. [¶] "It follows from our analysis, however, that where a thief does not interfere with, impede, frustrate, or prolong a lawful investigation, for example, where a thief is interrupted while concealing evidence or where the police watch him conceal it, he has not successfully hidden the evidence or appreciably affected an investigation and thereby obstructed justice. He has merely tried to do so. Thus, his conduct constitutes an attempt to violate the statute by concealment." (Hill, supra, 58 Cal.App.4th at p. 1090 (italics added.)
Pineda maintains his act of throwing the laptop into the bay was at best an act of attempted concealment because, like the traveler's checks in Hill, a witness observed defendant disposing of the computer and the police were quickly able to retrieve it. We disagree. Unlike the traveler's checks in Hill, which were abandoned in plain view in the midst of a police pursuit, the laptop was tossed into water deep enough for boats to navigate. Though there is nothing in the record regarding the opacity of the water, the fact that officers asked a civilian witness where the items were tossed into the ocean indicates they did not know the precise location of the computer. The marker placed over the site where the witness said the items were tossed indicates that the computer was not conspicuously visible from above the water line. In short, Pineda's attempt to conceal the computer went well beyond an attempt and in fact "impeded, frustrated and prolonged" the investigation of the burglary.
C. Trial Court's Failure to Instruct on Lesser Included Offenses
" 'The trial court is obligated to instruct the jury . . . on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.' " (People v. Rogers (2006) 39 Cal.4th 826, 866.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162.) Substantial evidence is evidence that could lead a jury composed of reasonable persons to find the defendant committed the lesser offense, but not the greater. (Ibid.) "We review the trial court's failure to instruct on a lesser included offense de novo [citations] considering the evidence in the light most favorable to the defendant." (People v. Brothers (2015) 236 Cal.App.4th 24, 30.)
Pineda claims the trial court was obligated to instruct the jury on the lesser offense of attempted concealment or destruction of evidence. However, there is no substantial evidence that defendant merely attempted but failed to conceal the computer. The record clearly demonstrates that defendant succeeded in temporarily concealing the laptop by tossing it into the bay, causing the recovery of the laptop to take more time and effort than would have otherwise been needed had the laptop simply been left on the dock by defendant or remained on his person. Because the record does not provide substantial evidence that defendant attempted to conceal or destroy the laptop but failed to actually achieve either goal, the trial court had no sua sponte duty to instruct on attempted concealment or destruction of evidence.
D. Trial Court's Staying of Execution of Prior Prison Term Enhancement
The trial court found true a prior serious felony enhancement under section 667, subdivision (a)(1) and a prior prison term enhancement under section 667.5, subdivision (b). Because both enhancements arose out of the same conviction, the trial court could not impose both enhancements. (People v. Jones (1993) 5 Cal.4th 1142, 1153.) Instead, the trial court stayed the prior prison term enhancement. We reject defendant's contention that the trial court was required to strike, rather than stay, the prior prison term enhancement.
California Rules of Court, rule 4.447 (rule 4.447) provides: "No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendant's service of the portion of the sentence not stayed." "This rule is intended 'to avoid violating a statutory prohibition or exceeding a statutory limitation, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence.' " (People v. Lopez (2004) 119 Cal.App.4th 355, 364.)
Nothing in People v Langston (2004) 33 Cal.4th 1237 (Langston) required that the prior prison term enhancement be stricken. Although the court in Langston stated, "[o]nce the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken," its statement has no application here. (Id., at p. 1241.)
Langston is inapposite as it did not concern the proper treatment of an enhancement where both enhancements arise from the same offense. "[C]ases are not authority for propositions not considered." (People v. Brown (2012) 54 Cal.4th 314, 330.) "Langston never mentioned rule 4.447, and the authority cited by Langston on the point involved discretionary determinations to not impose an enhancement, and therefore did not implicate the ability to stay an enhancement under rule 4.447." (People v. Brewer (2014) 225 Cal.App.4th 98, 106, fn. 9.) Thus, the trial court committed no error in staying the prior prison term enhancement.
E. Error in Abstract of Judgment
Because we must reverse Pineda's conviction on count 2, violation of section 21310, we need not discuss Pineda's contention that the abstract of judgment with respect to count 2 is erroneous. "Under principles of double jeopardy, our reversal due to insufficiency of evidence bars retrial for the offense." (Hill, supra, 58 Cal.App.4th at p. 1091, fn. 11.) Thus, the trial court will, on remand, be required to resentence Pineda and, in any event, issue an amended abstract of judgment reflecting his new sentence.
DISPOSITION
Pineda's conviction on count 2, violation of section 21310, is reversed and remanded for further proceedings consistent with the views expressed in our opinion. In all other respects, the judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. AARON, J.