People v. Kroes CA4/1

Filed 11/18/13 P. v. Kroes CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063021
Plaintiff and Respondent,
v. (Super. Ct. No. SCD239887)
AMANDA LYNN KROES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert F.
O'Neill, Judge. Affirmed.
Leonard J. Klaif, by appointment of the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Stacy Tyler, Deputy Attorney
General, for Plaintiff and Respondent.
This case arose out of the fraudulent purchase of a prescription medication at a
CVS pharmacy in San Diego. A jury convicted Amanda Lynn Kroes of (1) unauthorized
use of personal identifying information of another person (Pen. Code, § 530.5, subd. (a))
(undesignated statutory references will be to the Penal Code), (2) obtaining prescription
drugs by fraud (Health & Saf. Code, § 11173, subd. (a)), and (3) commercial burglary (§
459). At the sentencing hearing, the court reduced the offenses to misdemeanors and
placed Kroes on three years' summary probation.
Kroes appeals, contending her burglary conviction must be reversed because the
evidence was insufficient for the jury to conclude beyond a reasonable doubt that she had
the criminal intent to commit prescription fraud at the time she entered the pharmacy.
We affirm the judgment.
FACTUAL BACKGROUND
A. The People's Case
On January 1, 2012, at around 7:00 p.m., Kroes drove her boyfriend, Chad
Morrow, to a CVS pharmacy in San Diego. Kroes had in her possession a prescription
for 180 Norco1 pills made out to her mother, Elizabeth Applehans.
Morrow testified that Kroes gave him the prescription as they pulled up to the
pharmacy because she wanted him to go inside and fill the prescription. He stated that
1 An investigator employed by the California Department of Health Care Services
testified that Norco is a brand name for a generic drug that is a mixture of hydrocodone
and acetaminophen. Norco is a controlled substance.
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Kroes told him her mother was in town to take her back to Colorado and she needed to
have the prescription filled.
Carrying the prescription, Morrow entered the pharmacy alone, walked up to the
pharmacy counter, and asked pharmacy technician, Tifinnie Hibbard, to fill the
prescription, stating it was for his "mother-in-law." Morrow gave the prescription to
Hibbard.
When Hibbard asked Morrow for Appelhans's insurance information, Morrow left
the pharmacy counter and came back with Kroes a few minutes later. Kroes claimed the
prescription was for her mother and told Hibbard that her mother was "in a lot of pain."
Hibbard testified that Kroes "seemed really determined" to get Appelhans's insurance
information because the cost of the Norco pills was "pretty high."
Kroes made a 20-minute phone call while Morrow sat down nearby. The call
failed to produce Appelhans's insurance information, but Kroes showed Hibbard and the
pharmacist on duty a photograph on her cell phone of Appelhans's driver's license, which
had an address and date of birth that matched the information on the prescription. The
pharmacist agreed to fill the prescription. A short time later, Morrow picked up the filled
prescription and paid for it with cash.
The prescription was ostensibly filled out by "Khan Ha, M.D." Khan Ha, M.D., an
emergency room physician at Sharp Coronado Hospital in San Diego, testified that
neither the handwriting nor the signature on the prescription was his. Dr. Ha also
testified the prescription in question was not written on his prescription pad because the
paper was not the right size and contained information different than that found on his
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prescription pad. Dr. Ha stated he did not recall ever seeing Appelhans as a patient, and
he did not know Kroes.
Appelhans testified she was not in San Diego on January 1, 2012; she was in
Colorado where she lives. The last time she was in San Diego before that date was in
2010. Appelhans also testified she did not give permission to Kroes or anyone else to use
her name to obtain a prescription.
2. The Defense
The defense rested without presenting evidence.
DISCUSSION
Kroes contends her burglary conviction must be reversed because the evidence
was insufficient for the jury to conclude beyond a reasonable doubt that she had the
criminal intent to commit prescription fraud at the time she entered the CVS pharmacy.
We reject this contention.
A. Applicable Legal Principles
1. Elements of burglary
Burglary is committed when a "person . . . enters any house, room,
apartment . . . [or] other building . . . with intent to commit grand or petit larceny or any
felony." (§ 459; People v. Montoya (1994) 7 Cal. 4th 1027, 1041.) The essence of the
offense is entry with the proscribed intent; such entry constitutes the completed crime of
burglary regardless of whether any felony or theft actually is committed. (See People v.
Lawrence (2000) 24 Cal. 4th 219, 232-233, citing Montoya, supra, at pp. 1041-1042; see
also People v. Allen (1999) 21 Cal. 4th 846, 863, fn. 18.)
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2. Substantial evidence standard of review
When assessing a challenge to the sufficiency of the evidence supporting a
conviction, we apply the substantial evidence standard of review, under which we view
the evidence "in the light most favorable to the judgment below to determine whether it
discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt." (People v. Johnson (1980) 26 Cal. 3d 557, 578; see also Jackson v.
Virginia (1979) 443 U.S. 307, 319.) "The same standard of review applies to cases in
which the prosecution relies mainly on circumstantial evidence." (People v. Maury
(2003) 30 Cal. 4th 342, 396.)
We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate
the credibility of witnesses. (People v. Ochoa (1993) 6 Cal. 4th 1199, 1206; People v.
Jones (1990) 51 Cal. 3d 294, 314.) "Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34
Cal. 4th 1149, 1181.)
a. Intent required for burglary
Regarding the sufficiency of evidence to support a burglary conviction, it is well-
established that "the intent required for . . . burglary is seldom established with direct
evidence but instead is usually inferred from all the facts and circumstances surrounding
the crime." (People v. Lewis (2001) 25 Cal. 4th 610, 643; see also In re Leanna W. (2004)
120 Cal. App. 4th 735, 741.)
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B. Analysis
We are persuaded any rational trier of fact could find beyond a reasonable doubt
that Kroes had the criminal intent to commit prescription fraud at the time she entered the
pharmacy. The evidence at trial showed: (1) the prescription that Kroes had in her
possession when she drove Morrow to the pharmacy indicated that the prescription was
for her mother; (2) when Kroes gave the prescription to Morrow and asked him to go into
the pharmacy to fill it, she told Morrow her mother was in town to take her back to
Colorado and she needed to have the prescription filled; (3) however, Applehans was in
Colorado, not San Diego, on that date; (4) the prescription was ostensibly filled out and
signed by Dr. Ha, but─as Dr. Ha testified─neither the handwriting nor the signature on
the prescription was his; (5) when Kroes entered the pharmacy after Morrow was unable
to fill the prescription, she told Hibbard the prescription was for Applehans, but─as
Applehans testified─Kroes did not have Applehans's permission to obtain a prescription
on her behalf; and (6) to persuade Hibbard and the pharmacist to fill the prescription,
Kroes showed them a cell phone photograph of Appelhans's driver's license that had an
address and date of birth that matched the information on the prescription.
From the foregoing substantial evidence, any rational trier of fact could find
beyond a reasonable doubt that before Kroes entered the pharmacy she knew the
prescription in her possession was a forgery and she intended to use that prescription to
commit prescription fraud. The evidence shows her statement to Morrow that Applehans
was in San Diego was false, as was her statement to Hibbard that she (Kroes) was filling
the prescription for Applehans. The evidence of these false statements shows
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consciousness of guilt, prior knowledge that the prescription was a forgery, and intent to
commit fraud.
Kroes's reliance on In re Leanna W., supra, 120 Cal. App. 4th 735, is unavailing.
That case involved a juvenile who hosted a party at her grandmother's home while her
grandmother was away. (Id. at p. 737.) The grandmother's home was vandalized and
some of her property was stolen. (Id. at p. 738.) The juvenile court found true an
allegation of burglary, but the Court of Appeal reversed the judgment, concluding the
evidence was insufficient to support the juvenile court's finding because there was no
evidence to show what the juvenile did while she was in the house. (Id. at pp. 738; 740.)
Here, in contrast, the record shows exactly what Kroes did inside the pharmacy: She
fraudulently persuaded Hibbard and the pharmacist to fill a prescription, which she knew
was forged before she entered the pharmacy, by making false statements and showing
them a cell phone photograph of Appelhans's driver's license that had an address and date
of birth that matched the information on the prescription.
For the foregoing reasons, we conclude substantial evidence supports Kroe's
burglary conviction.
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DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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