Filed 6/27/13 P. v. Townsend CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                  C071450

                   Plaintiff and Respondent,                                     (Super. Ct. No. CR120322)

         v.

TOBIAH ANDREW TOWNSEND,

                   Defendant and Appellant.




         Convicted of two misdemeanor offenses after jury trial, defendant appeals. He
contends that insufficient evidence supports his conviction for concealing evidence.
The People disagree, and also argue that defendant’s appeal should be transferred to the
appellate division of the Superior Court, a transfer which defendant opposes. As we will
explain, we agree with defendant on both points. We decline to transfer the case, and
shall modify the judgment to reflect defendant’s conviction for attempted concealing
evidence. We affirm the judgment as modified.




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                 FACTUAL AND PROCEDURAL BACKGROUND
       Evidence at Trial
       Davis Police Officer Peter Faeth was in uniform and on (marked) bicycle patrol at
around 2:35 p.m. on January 26, 2012, when he saw defendant run a stop sign on a
bicycle. Faeth identified himself and ordered defendant to stop. Defendant stopped and
lifted his bicycle to the sidewalk while remaining astride the bike.
       Faeth asked defendant for identification; defendant had none. As Faeth
dismounted his bicycle, defendant rode away quickly, accelerating to 15 to 20 miles per
hour. Faeth pursued defendant and ordered him to stop. Defendant continued to flee,
running a red light in heavy traffic and leaving the bicycle path.
       Faeth radioed a request for assistance to nearby motorcycle officer Jesse Dacanay.
Dacanay activated his light and siren and ordered defendant to stop; defendant continued
riding without slowing down. Defendant rode from the street to the sidewalk, and then to
the bicycle path, where he reached down into his sock, removed an eyeglass case, and
threw it about 30 feet over a fence into a grassy area. The case landed into a drainage
area separated from the bike path by a six-foot chain link fence
       The pursuit continued until Dacanay drove his motorcycle in front of defendant
and forced him to stop. Dacanay detained and handcuffed defendant, who had traveled
about a mile and a half from the initial point of contact by Faeth. When Faeth arrived,
Dacanay walked back about 50 yards, climbed the fence, and found the eyeglass case,
which contained a hypodermic needle with methamphetamine in it
       Charges, Verdict, and Sentence
       The People charged defendant Tobiah Andrew Townsend by complaint filed on
January 30, 2012 with two felonies--transportation of methamphetamine with a prior drug
conviction (Health & Saf. Code, §§ 11379, subd. (a), 11370.2, subd. (c)) and possession
of methamphetamine (Health & Saf. Code, § 11377, subd. (a))--and two misdemeanors--



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resisting an officer (Pen. Code,1 § 148, subd. (a)(1)), and destroying or concealing
evidence (§ 135). On February 14, 2012, the trial court held defendant to answer on all
four charges. One week later, the People filed an information bearing the same case
number and containing the same charges; they subsequently moved to dismiss the two
felony charges for insufficient evidence. On the eve of trial, the People successfully
moved to add a misdemeanor possession of drug paraphernalia charge (Health & Saf.
Code, § 11364.1, subd. (a)). They accomplished this addition by filing what purported to
be a “first amended complaint,” bearing the same case number as the information. They
moved to dismiss that charge after the completion of their case in chief.
        The jury found defendant guilty of the only two remaining charges, both
misdemeanors--resisting an officer and concealing evidence. Finding defendant violated
his probation in two unrelated cases based on the evidence presented at trial, the trial
court sentenced defendant to 30 days in county jail for resisting an officer and a
consecutive 10 days for concealing evidence, to be served concurrently with the felony
sentences imposed for the unrelated cases.
                                       DISCUSSION
                                              I
                                        Jurisdiction
        The People contend defendant’s appeal should be transferred to the appellate
division of the Superior Court because the final charging document, the “first amended
complaint,” contained only misdemeanor charges. Defendant disagrees, and argues in
essence that the People could not convert their felony case to a misdemeanor case by



1   Further undesignated statutory references are to the Penal Code.




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merely filing a “first amended complaint” after the original felony complaint had been
superseded by felony information.
       This court has jurisdiction over appealable orders from “felony case[s].” (§ 1235,
subd. (b); see Cal. Const., art. VI, § 11.) The People argue the first amended complaint,
which charged only misdemeanor counts, controls our characterization of defendant’s
case as felony or misdemeanor. We disagree.
       First and foremost, it is clear that defendant’s conviction on misdemeanor charges
only is not a factor in our analysis. Because defendant was initially charged with
felonies, we have jurisdiction over his appeal even though he was ultimately convicted
only of misdemeanors. (People v. Nickerson (2005) 128 Cal.App.4th 33, 36 (Nickerson);
§ 691, subds. (f), (g).)
       “ ‘[F]elony case’ means any criminal action in which a felony is charged,
regardless of the outcome. A felony is ‘charged’ when an information or indictment
accusing the defendant of a felony is filed or a complaint accusing the defendant of a
felony is certified to the superior court under Penal Code section 859a. A felony case
includes an action in which the defendant is charged with: [¶] (A) A felony and a
misdemeanor or infraction, but is convicted of only the misdemeanor or infraction[.]”
(Cal. Rules of Court, rule 8.304 (a)(2), emphasis added; see also § 691, subd. (f)
[“‘Felony case’ means a criminal action in which a felony is charged and includes a
criminal action in which a misdemeanor or infraction is charged in conjunction with a
felony”]; Nickerson, supra, 128 Cal.App.4th at p. 38 [“[A] defendant is not “charged with
a felony” within the meaning of section 691 until an information or indictment is filed or
a complaint is certified to the superior court pursuant to section 859a”].)
       As the above authorities make clear, when, as here, a felony information is filed,
we have jurisdiction over any appeal arising from that case. Because defendant was
charged with two felonies in the original information, his case was and remains a felony
case and we have jurisdiction over the appeal. The filing of the information, under the

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same case number, effectively superseded the complaint. Here, we interpret the “first
amended complaint” as a miscaptioned first amended information, given the specific and
somewhat convoluted procedural history of this case.
                                             II
                                Sufficiency of the Evidence
       Defendant contends there is insufficient evidence to support his conviction for
concealing evidence. We agree.
       “ ‘To determine sufficiency of the evidence, we must inquire whether a rational
trier of fact could find defendant guilty beyond a reasonable doubt. In this process we
must view the evidence in the light most favorable to the judgment and presume in favor
of the judgment the existence of every fact the trier of fact could reasonably deduce from
the evidence. To be sufficient, evidence of each of the essential elements of the crime
must be substantial and we must resolve the question of sufficiency in light of the record
as a whole.’ [Citation.]” (People v. Carpenter (1997) 15 Cal.4th 312, 387.)
       Section 135 provides: “Every person who, knowing that any book, paper, record,
instrument in writing, or other matter or thing, is about to be produced in evidence upon
any trial, inquiry, or investigation whatever authorized by law, willfully destroys or
conceals the same, with intent thereby to prevent it from being produced, is guilty of a
misdemeanor.”
       The lead case defining the crime of concealing or destroying evidence is People v.
Hill (1997) 58 Cal.App.4th 1078 (Hill). Although both parties argue Hill compels the
result they seek, defendant has the better argument. Hill and his codefendants purchased
items from several stores using counterfeit traveler’s checks. (Hill, supra, 58
Cal.App.4th at pp. 1081-1082.) Pursued by the police after driving away from a mall,
one of the defendants threw a wad of paper from the car. (Hill, supra, at p. 1082.) Police
recovered the wad, which turned out to be torn pieces of traveler’s checks. (Ibid.) Hill



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was convicted of five counts of forging checks and one count of destroying or concealing
evidence. (Id. at p. 1080.)
       In determining whether substantial evidence supported the destroying or
concealing evidence conviction, the Hill court found that the purpose of section 135 was
“to prevent the obstruction of justice. [Citation.]” (Hill, supra, 58 Cal.App.4th at
p. 1089.) The appellate court first looked to the plain meaning of the term “destroy”: “to
ruin something completely and thereby render it beyond restoration or use. [Citation.]”
(Ibid.) For the purposes of proving a violation of section 135, “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. [Citation.]” (Ibid.) Since the traveler’s checks were not
destroyed, the defendant in Hill could not be convicted under this theory. (Id. at p. 1090.)
       The Hill court next addressed whether the defendant’s conviction could be
sustained under a concealing evidence theory. (Hill, supra, 58 Cal.App.4th at p. 1090.)
The court reasoned that since “[t]he word ‘conceal’ simply means to hide or cover
something from view,” section 135 does not require “that a defendant must render
evidence permanently unseen, or as defendant submits, unavailable. Rather successful
concealment of evidence from a particular investigation is sufficient.” (Ibid.) Therefore,
in addition to permanently concealing evidence, “any act of concealment that interferes
with, impedes, frustrates, or unnecessarily prolongs a lawful search” constitutes
obstruction of justice. (Ibid.)
       But “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



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to do so. Thus, his conduct constitutes an attempt to violate the statute by concealment.”
(Hill, supra, 58 Cal.App.4th at p. 1090.) The appellate court reasoned that by throwing
the checks from his car in full view of the police, Hill “did not succeed in hiding or
covering this evidence; nor did he appreciably affect the investigation of suspected
counterfeiting. An officer simply walked over to the discarded evidence and collected
it.” (Hill, supra, at p. 1091.) This constituted no more than an attempt to conceal
evidence. (Ibid.)
       Here, as in Hill, defendant attempted to discard potential evidence of a crime in
full view of the pursuing officer. The officer saw where defendant threw it, and was able
to retrieve it with minimal effort. Since the evidence was never successfully hidden from
the police, even for a moment, we conclude there is insufficient evidence to support
defendant’s conviction for concealing evidence.
       Section 1260 authorizes “appellate courts to modify a judgment to reflect a
conviction of a lesser, necessarily included offense when the state of the evidence
warrants it.” (People v. Matian (1995) 35 Cal.App.4th 480, 488; 6 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Appeal, § 194, pp. 478-480 [citing
cases].) Attempted concealing evidence is a lesser included offense of concealing
evidence. (Hill, supra, 58 Cal.App.4th at p. 1091, fn. 10.)
       “An attempt to commit a crime consists of two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)
As we noted ante, the crime of concealing evidence requires intent to prevent the item in
question from being produced. Defendant does not dispute the jury’s finding of this
element of the offense, which is supported by overwhelming evidence. Since the act of
throwing the evidence over a fence in full view of the police was a “direct but ineffectual
act” toward committing the crime of concealing evidence, the evidence shows defendant




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committed the lesser offense of attempted concealing evidence. We shall modify the
judgment accordingly.2
                                    DISPOSITION
      The judgment is modified to strike defendant’s conviction for concealing evidence
and instead reflect his conviction for attempted concealing evidence. As modified, the
judgment is affirmed.



                                                      DUARTE                    , J.



We concur:



             HULL                    , Acting P. J.



             ROBIE                   , J.




2 In the interest of judicial economy, and since the outcome appears compelled by law,
we address this issue and take this action without having requested supplemental briefing,
subject to any party’s right to petition for rehearing. (Gov. Code, § 68081.)

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