People v. Burton CA5 ( 2021 )

Filed 9/9/21 P. v. Burton CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079341
Plaintiff and Respondent,
(Super. Ct. No. MCR060773)
v.
JOSHUA BURTON, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Madera County. Joseph A.
Soldani, Judge.
Matthew Aaron Lopas, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine
Chatman, Harry Joseph Colombo and A. Kay Lauterbach, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
Defendant Joshua Burton was convicted by jury trial of attempt to escape from
state prison. On appeal, he contends there was insufficient evidence to satisfy the corpus
delicti of the crime. We affirm.
PROCEDURAL SUMMARY
On June 4, 2018, the Madera County District Attorney filed a complaint charging
defendant with attempt to escape from a state prison (Pen. Code, § 4530, subd. (b);1
count 1). The complaint further alleged defendant had suffered a prior strike conviction
within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)).
On April 3, 2019, a jury found defendant guilty of attempt to escape and the court
found defendant’s prior strike true.
On May 8, 2019, the trial court sentenced defendant to the upper term of six years
to be served consecutively to sentences in two other cases.
On May 17, 2019, defendant filed a notice of appeal.
FACTUAL SUMMARY
Defendant was an inmate at Valley State Prison. On November 22, 2017,
numerous inmates alerted Correctional Officer Hector Castillo that an inmate was
“down” on the west side of the building. Castillo and two other officers went over to the
area and discovered defendant lying face down on the ground in an out-of-bounds area,
approximately three to five feet away from a cinder block wall. The area was marked by
a yellow line with the words “OUT OF BOUNDS” painted in red. Defendant was
approximately 40 to 50 feet into the out-of-bounds area, in the direction of the cinder
block wall. The cinder block wall separated A-yard from B-yard. Inmates were not
allowed to travel between yards without permission.
1 All further statutory references are to the Penal Code.
2.
One of the officers conducted a clothed body search of defendant to “[make] sure
he had nothing on him.” Afterwards, defendant was instructed to stand up and was then
handcuffed. When the officers asked defendant what he was doing there, he responded
that he “tripped and fell.” As the officers proceeded to escort him to the program area
office, defendant took a few steps and then stated he could not walk. The officers helped
him into a wheelchair and took him into the office.
Officer Robert Vasquez, one of the other responding officers, testified that the
cinder block wall that defendant was near was approximately 15 feet tall with an
additional five feet of chain link fence at the top, which was lined with razor wire on top.
Vasquez stated that the razor wire was sharp enough to “rip your skin.” He said inmates
could possibly use a shirt or jacket to cover the razor wire to go over it. He could not
recall whether defendant had a jacket on when he found him in the out-of-bounds area.
Vasquez said he would have noted in his report whether defendant had a jacket or an
extra article of clothing to aid in an escape; however, his report had no such notation.
Moreover, Castillo testified that he did not see defendant try to climb any fences.
Correctional Sergeant Pedro Juarez testified that when defendant went into the
building later that same day, Juarez asked defendant what was wrong with his foot.
Defendant told Juarez he had hurt it in front of the program office. Juarez “took a quick
glance” at defendant’s right foot but did not see anything wrong with it. However, a few
hours later, Juarez checked on defendant again and noticed that defendant’s foot was
swollen and discolored. Thereafter, Juarez requested a medical evaluation for defendant.
By the time the medical evaluation was conducted, defendant’s right ankle was bruised,
swollen, and discolored.
Psychologist Jacqueline Schneiderman conducted a mental health interview of
defendant on the day of the incident and recommended that he be placed in a crisis bed
because he had been making bizarre statements. She said he was suffering from
delusions, but he did not seem “overly psychotic.” He appeared “very calm” and was
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able to answer questions clearly. He did not exhibit signs of auditory or visual
hallucinations, but he appeared to be in an alternate reality. When she asked him how he
hurt his foot, he said he tripped and fell.
Defendant’s Extrajudicial Admissions
On December 5, 2017, registered nurse Po Thao conducted a medical evaluation
of defendant. Defendant had a soft cast around his right ankle. Defendant told her that
he “fell off a fence.”
On December 6, 2017, Captain Scott Speidell conducted defendant’s
administrative review hearing. When Speidell asked defendant about his cast, defendant
told Speidell that he was climbing the fence by the program office and when he became
afraid, he began climbing down and fell. Speidell asked defendant why he was climbing
the fence and defendant stated that he was leaving the institution. He said that they had
kept him too long and that he did not belong there.
DISCUSSION
Defendant contends there was insufficient evidence to prove the corpus delicti of
an attempt to escape because, aside from his extrajudicial statements, there was no
evidence that a crime had occurred. We disagree.
I. Applicable Legal Principles
A. The Corpus Delicti Rule
“In every criminal trial, the prosecution must prove the corpus delicti, or the body
of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal
agency as its cause.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168 (Alvarez).) “In
California, it has traditionally been held, the prosecution cannot satisfy this burden by
relying exclusively upon the extrajudicial statements, confessions, or admissions of the
defendant.” (Id. at pp. 1168–1169.) “This rule is intended to ensure that one will not be
falsely convicted, by his or her untested words alone, of a crime that never happened.”
(Id. at p. 1169.)
4.
“The amount of independent proof of a crime required [to satisfy the corpus delicti
rule] is quite small; we have described this quantum of evidence as ‘slight .…’ ” (People
v. Jones (1998) 17 Cal.4th 279, 301.) Such “independent proof may be circumstantial
and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of
criminal conduct, even if a noncriminal explanation is also plausible.” (Alvarez, supra,
27 Cal.4th at p. 1171.) “In every case, once the necessary quantum of independent
evidence is present, the defendant’s extrajudicial statements may then be considered for
their full value to strengthen the case on all issues.” (Ibid.)
B. Attempt to Escape
“Every prisoner … who escapes or attempts to escape … not by force or violence,
is punishable by imprisonment in the state prison for 16 months, two years, or
three years, to be served consecutively .…” (§ 4532, subd. (b)(1).) “Attempted escape
requires a ‘direct, unequivocal act to effect that purpose.’ ” (People v. Lancaster (2007)
41 Cal.4th 50, 94.) “Such an act ‘must go beyond mere preparation, and it must show
that the perpetrator is putting his or her plan into action.’ ” (Ibid.) Additionally, “attempt
to escape requires a specific intent to escape.” (People v. Bailey (2012) 54 Cal.4th 740,
749.) “Escape means the unlawful departure of a prisoner from the physical limits of his
or her custody. [It is not necessary for the prisoner to have left the outer limits of the
institution’s property. However, the prisoner must breach a wall or fence marking the
security perimeter of the correctional facility. It is not sufficient for the prisoner to be
merely outside the particular area within the facility where he or she is permitted to be.]”
(CALCRIM No. 2760.) For the purpose of the corpus delicti rule, “[t]here is no
requirement of independent evidence ‘of every physical act constituting an element of an
offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by
a criminal agency.” (Alvarez, supra, 27 Cal.4th at p. 1171.)
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II. Background
The jury was instructed pursuant to CALCRIM No. 359 as follows:
“The defendant may not be convicted of any crime based on his out-
of-court statement alone. You may rely on the defendant’s out-of-court
statement to convict him only if you first conclude that other evidence
shows that the charged crime was committed. That other evidence may be
slight and may not only be enough to support a reasonable inference that a
crime was committed.”
Additionally, the court instructed on attempt pursuant to CALCRIM No. 460 as
follows:
“The defendant is charged with escape. To prove that the defendant
is guilty of this crime, the People must prove that, one, the defendant took a
direct but ineffective step towards committing escape. And, two, the
defendant intended to commit escape.
“A direct step requires more than mere—merely planning or
preparing to commit escape, or obtaining or arranging for something
needed to commit escape.
“A direct step is one that goes beyond planning or preparation, and
shows that a person is putting his or her plan into action. A direct step
indicates a definite and unambiguous intent to commit escape. It is a direct
movement towards the commission of the crime after preparations are
made. It is an immediate step that puts the plan into motion so that the plan
would have been completed if some circumstance outside the plan and had
not interrupted the attempt.
“A person who attempts to commit escape is guilty of escape even
after taking a direct step towards committing the crime he or she abandoned
further efforts to complete the crime. Or if his or her attempt failed or was
interrupted by something, by someone or something beyond his or her
control. On the other hand, if a person freely and voluntarily abandons his
or her plans before taking a direct step toward committing escape, then the
person is not guilty of escape.
“To decide whether the defendant intended to commit escape, please
refer to the separate instructions that I will give you on that crime.”
6.
III. Analysis
In this case, the evidence established that defendant was outside of his permitted
area of confinement. Officers Castillo and Vasquez both testified they saw defendant in
the out-of-bounds area. The area was marked by a yellow line with red letters that read
“OUT OF BOUNDS.” Defendant was approximately three to five feet away from the
cinder block wall, and approximately 40 to 50 feet away from the out-of-bounds line.
This evidence certainly permits a reasonable inference that the reason defendant was so
far into the out-of-bounds area, was because he was attempting to reach the wall to
effectuate an escape. It does not matter if it is plausible that defendant was there due to
other circumstances, such as tripping and falling into the area, as he asserts. (See
Alvarez, supra, 27 Cal.4th at p. 1171 [the independent proof is “sufficient if it permits an
inference of criminal conduct, even if a noncriminal explanation is also plausible”].)
Additionally, defendant could not walk out of the out-of-bounds area and had to be rolled
out in a wheelchair. The fact that he could not walk on his own also suggests he may
have been climbing down the wall and injured himself in a fall.
Defendant argues the present case is analogous to People v. Schuber (1945)
71 Cal.App. 2d 773. We disagree. In Schuber, the defendant was charged with
lascivious conduct upon his nine-year-old stepdaughter after she suffered from a
laceration to her vagina. (Id. at p. 774.) The evidence established that just before the
injury occurred, she had been sleeping in the same bed as the defendant. (Id. at p. 776.)
However, there was absolutely no evidence in the record pertaining to the cause of her
injury—the victim testified “she ‘did not know’ what, if anything, her stepfather did to
her.” (Id. at p. 774.) The court stated that there were “no circumstances shown by the
record, or reasonable inferences to be drawn therefrom,” apart from defendant’s
extrajudicial statements, that a crime had occurred. (Id. at p. 775.) Accordingly, the
court held that there was insufficient evidence to prove the corpus delicti of the charged
crime because there was no independent evidence that a criminal agency caused the
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victim’s injury. (Id. at p. 774.) Here, on the other hand, there was independent evidence
from which to infer that defendant attempted to escape—two officers testified they found
defendant in an out-of-bounds area near a cinder block wall.
Defendant further asserts that this case is also similar to Jones v. Superior Court
(1979) 96 Cal.App.3d 390, 396 (Jones), in which the court concluded that the evidence
adduced at the preliminary examination was not competent to establish the corpus delicti
of the charged crimes. Again, we disagree.
In Jones, the defendant was charged with the possession of a sawed-off shotgun,
attempted robbery, and attempted false imprisonment. (Jones, supra, 96 Cal.App.3d at
p. 392.) On appeal, defendant argued that the prosecution had failed to establish the
corpus delicti of the attempted robbery and attempted false imprisonment charges. (Ibid.)
At the preliminary examination, evidence established that an officer responded to a
shooting in a home. (Id. at p. 394.) When the officer entered the home, he discovered
defendant giving mouth-to-mouth resuscitation to a deceased individual, who had died
due to a gunshot wound. The deceased was wearing gloves with tape wrapped around his
knuckles, had five shirts on, and had two knives on him. There were bullet holes and
items in disarray throughout the home. There was also a bloody shirt, a trail of blood,
and a bag of women’s clothing nearby. Officers also found a pistol and a sawed-off
shotgun. (Ibid.) As a result, the prosecution argued that it was reasonable to infer that
the deceased, the defendant, and another individual had planned to rob and falsely
imprison the victim. (Id. at p. 395.) The prosecution suggested the deceased had gloves,
tape around his knuckles, and five shirts on because he intended to beat the victim. The
prosecutor argued, “ ‘[t]he fact that no one present showed signs of having received a
beating, and that the person to do the beating was dead, shows the proposed false
imprisonment was attempted and failed.’ ” (Ibid.) He further argued that, because police
discovered two guns, two other people were necessary to assist the deceased in carrying
out the plan—the defendant being one of those individuals. Additionally, because no
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woman lived in the home, the prosecutor further argued that “ ‘[t]he inference to be
drawn is that the women’s clothes were to be used in the proposed crime such as dressing
the victim with them. To accomplish this, it would require taking the victim’s clothes
which would be robbery.’ ” (Ibid.) The court stated that these inferences were not
reasonable and that in order to “conclude that the evidence presented at the preliminary
examination establishe[d] by a reasonable probability that an attempted robbery and an
attempted false imprisonment … occurred, [it] would need to stretch the realm of reason
beyond its breaking point.” (Id. at p. 396.) Thus, the court concluded that, absent
defendant’s extrajudicial statements, there was insufficient evidence to establish the
corpus delicti of attempted robbery and attempted false imprisonment. (Ibid.) There, the
evidence simply did not support the prosecutor’s unreasonable inferences. For instance,
it was not reasonable to infer that the defendant had attempted a robbery from the fact
that a bag of women’s clothing was found in the home. (Id. at p. 395.) Here, however,
the fact that defendant was found in an out-of-bounds area does permit a reasonable
inference that he attempted an escape. (See People v. Jones, supra, 17 Cal.4th at
pp. 301–302 [“[t]he inference need not be ‘the only, or even the most compelling, one …
[but need only be] a reasonable one’ ”].)
Thus, we conclude the prosecution satisfied its minimal burden by introducing
evidence from which a reasonable inference could be drawn that defendant had attempted
to escape the prison.
9.
DISPOSITION
The judgment is affirmed.
HILL, P. J.
WE CONCUR:
DETJEN, J.
FRANSON, J.
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