Filed 2/1/16 P. v. Pineda CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067731
Plaintiff and Respondent,
v. (Super. Ct. No. SCS272772)
JUAN IVAN PINEDA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie
Sontag, Judge. Affirmed as modified.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Defendant.
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 burglarizing an apartment and the subsequent pursuit and apprehension
of defendant by police officers. Defendant alleges the trial court produced insufficient
evidence that he possessed a concealed dirk or dagger because a pocket knife such as that
found on his person at the time of his arrest only qualifies as such if the blade locks in
place.
Defendant also claims the prosecution did not produce substantial evidence that he
concealed or destroyed evidence because the computer (allegedly concealed or destroyed)
was recovered and physically intact. Alternatively, defendant argues that even if the
evidence was sufficient for conviction on the concealment and destruction of evidence
count, the trial court erred by failing to instruct the jury on the lesser included offense of
attempted concealment or destruction of evidence.
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 order the trial court to correct the abstract of judgment to reflect the actual
judgment rendered by the court. 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 (Pen.
Code,1 §§ 459, 460; count 1), carrying a concealed dirk or dagger (§ 21310; count 3),
1 All further statutory references are to the Penal Code unless otherwise indicated.
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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 four 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.
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A laborer who was at work installing stones at a home in Coronado Cays near a
boat dock spotted defendant swimming in the ocean and watched defendant climb out of
the ocean, onto the 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 ocean. Among the items the laborer saw defendant toss into
the ocean was a laptop computer, which defendant tossed about 10 to 15 feet into the
ocean 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 ocean.
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 one of
defendant's pockets. Rose described the pocket knife as being in a "fixed open position."
A harbor patrol boat arrived at the scene where defendant dropped the items into
the ocean. 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 dove under the water to search. The 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
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on a walk, the same morning that defendant was arrested. The tread on boots defendant
was wearing on the day of his arrest resembled footprints made in the sand outside of the
victim's apartment.
At trial, defense counsel conceded in closing arguments that defendant was guilty
of possessing stolen property and concealing evidence, but he contended that the
prosecution failed to prove defendant was the one who burglarized the victim's
apartment. Defense counsel also argued that the prosecution failed to prove that the
pocket knife defendant had when he was arrested had the blade locked open.
DISCUSSION
A. Defendant's Conviction for Carrying a Concealed Dirk or Dagger
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
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and locked into position." (§ 16470; accord, In re George W. (1998)
68 Cal.App.4th
1208, 1214.)
Defendant claims the prosecution failed to produce substantial evidence that the
pocket knife defendant was carrying on his person was locked into an open position when
he was apprehended. He argues that Rose's testimony that the pocket knife was in a fixed
open position is not substantial evidence that the blade was locked into position. We
agree with the People that the difference between "locked" and "fixed" in the context of
this case is not legally significant, at least not when judged by the substantial evidence
standard. The Oxford English Dictionary states that "lock" can mean "to hold or fix
firmly or irrevocably; to hold or trap in a particular position." (Oxford English Dict.
Online (2016) [as of Jan. 13, 2016].) Among the definitions for
"fixed" is: "Placed or attached firmly; fastened securely; made firm or stable in position."
(Ibid.) In the context of a folding pocket knife, the terms "lock" and "fixed" are virtual
synonyms. We find that Rose's testimony that defendant's knife was fixed open was
substantial evidence that the blade was locked into an open position.
B. Defendant's Conviction for Destroying or Concealing Evidence
Section 135 provides that any person who knowingly destroys or conceals
evidence that they know is about to be produced in a legally authorized investigation with
the intent to hinder the investigation by preventing the production of the evidence is
guilty of a misdemeanor.
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Defendant contends his conviction for destroying or concealing evidence must be
overturned because he failed to destroy or conceal the laptop computer he threw into the
ocean. The most recent and relevant case regarding criminal destruction or concealment
of evidence is People v. Hill (1997)
58 Cal.App.4th 1078 (Hill). In Hill, a defendant
driving a car wadded up fraudulent traveler's checks and threw them out the window.
This action was observed by a police officer pursuing the defendant, and the checks were
recovered and produced into evidence. (Id. at pp. 1089–1090.) The Court of Appeal
reversed a conviction for destruction or concealment of evidence under section 135.
(Id. at p. 1092.) Regarding destruction of evidence, the Court of Appeal opined that:
"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.)
Defendant contends that because the computer was recovered and led to his arrest,
he failed to destroy evidence. The People claim defendant did destroy evidence because
the computer was rendered unusable, and the electronic data contained inside of it was
lost; data that could have been used to establish the identity of the victim or perhaps
uncover some illegal purpose for which defendant was using the computer.
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However, even if we did not find there was substantial evidence that defendant
destroyed evidence, we would still find that defendant successfully concealed evidence.2
On the question of what constitutes concealment, the Court of Appeal has opined: "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." (Hill, supra, 58 Cal.App.4th at p. 1090.)
Defendant maintains that his act of throwing the laptop into the ocean 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. First, unlike the traveler's checks in Hill, which were
2 We note a finding that defendant concealed evidence in this instance is not
contingent on any inferences regarding whether electronic data would have been
produced as evidence in the investigation because the computer itself was produced into
evidence and the label on it was used to identify the victim and confirm the computer's
status as stolen property.
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abandoned in plain view in the middle of a street, 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
placing of a marker over the site where the witness said the items were tossed for the
benefit of the divers also indicates that the computer was not conspicuously visible from
above the water line.
Also, unlike the traveler's checks, which could and were simply picked up off the
street by the pursuing officer, the laptop was thrown off of a dock into a body of water
deep enough for at least small boats to navigate on. Though police officers arrived at the
scene around the time defendant tossed the computer into the ocean, the water was
apparently too deep for the officers to conduct a search and recovery operation by
themselves as a harbor patrol boat with professional divers was called in to recover the
laptop from the ocean floor. The amount of time it took to recover the laptop is not clear
from the record, but its recovery definitely required a significant expenditure of time and
resources that would not have been necessary had the laptop not been thrown into the
ocean. Therefore, not only was the laptop concealed in the ocean, but the concealment
did impede an investigation by expanding the time and resources needed to effect
recovery of the computer. Because defendant succeeded in impeding an investigation by
hiding the laptop from view, we find the jury had substantial evidence that defendant
violated section 135 by concealing the laptop.
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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.)
Defendant claims the trial court was obligated to instruct the jury on the lesser
offense of attempted concealment or destruction of evidence. In regards to evidence of
destruction, we find there is substantial evidence in the record from which a reasonable
jury could find that the data stored on the computer was not destroyed or at least that the
prosecution failed to prove beyond the benefit of a doubt that the data was destroyed. As
we mentioned before, there is substantial evidence in the record that the data was
destroyed through the computer being submerged in the ocean, but a reasonable jury
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could have found differently as the record does not contain any indications that the
laptop's internal storage device was ever tested to see if it was still functional.
However, we find 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 ocean, 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 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.
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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.
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.
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E. Error in Abstract of Judgment
The trial court sentenced defendant on count 2 to a consecutive sentence of 16
months, which is one-third of the midterm doubled. The abstract of judgment correctly
indicates that defendant's sentence on count 2 is 16 months, but it also incorrectly states
that defendant was sentenced to a "consecutive full term." Defendant asks that we direct
the trial court to correct the abstract of judgment. The People concede that the abstract of
judgment contains the error and joins defendant in requesting that we order the trial court
to correct the abstract of judgment.
"[I]f the minutes or abstract of judgment fails to reflect the judgment pronounced
by the court, the error is clerical and the record can be corrected at any time to make it
reflect the true facts." (People v. Little (1993)
19 Cal.App.4th 449, 452.) The Court of
Appeal may order the clerk of the superior court to correct the abstract to match the
judgment and send the corrected abstract to the appropriate agencies. (See People v.
Hong (1998)
64 Cal.App.4th 1071, 1084-1085.) According to our state's high court,
"where . . . the Attorney General identifies an evident discrepancy between the abstract of
judgment and the judgment that the reporter's transcript and the trial court's minute order
reflect, the appellate court itself should order the trial court to correct the abstract of
judgment." (People v. Mitchell (2001)
26 Cal.4th 181, 188.)
We find that the abstract of judgment fails to reflect the judgment pronounced by
the trial court and issue an order that the superior court correct the abstract of judgment.
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DISPOSITION
The clerk of the superior court is ordered to correct the abstract of judgment to
reflect that defendant was sentenced to the middle term on count 2, and to forward a copy
of the corrected abstract to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
AARON, J.
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