Filed 4/21/15 P. v. Baltas CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066348

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD247927)

EVAN K. BALTSAS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Michael T.

Smyth, Judge. Affirmed as modified with directions.

         Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Ryan H.

Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Evan K. Baltsas of burglary of an occupied dwelling (Pen.

Code,1 §§ 459 & 460) and one count of grand theft (§ 487, subd. (a)). The court found

true two serious felony prior convictions (§ 667, subd. (a)) and one violent felony prison

(strike) prior conviction (§ 667, subds. (b)-(i)). Baltsas was sentenced to a total term of

12 years in prison.2

       Baltsas appeals contending the trial court erred in failing to give accomplice

instructions, on the court's own motion. Baltsas also contends the court erred in failing to

stay the sentence on grand theft (count 2) pursuant to section 654.

       Regarding count 2, the People properly concede the theft in this case was integral

to the burglary and the sentence must be stayed pursuant to section 654. We will direct

the trial court to stay the sentence on count 2 and to recalculate the total sentence

accordingly.

       With regard to the claimed error in failing to given unrequested accomplice

instructions, we agree with the People that even if such instructions were appropriate,

there is no conceivable prejudice on this record. Accordingly, any instructional error is

harmless.




1      All further statutory references are to the Penal Code unless otherwise specified.

2       At sentencing the court stayed the three-year sentence for the violent felony prison
prior (§ 667.5, subd. (a)). The proper remedy was to strike the enhancement. On remand
we will direct the court to strike the prison prior.
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                               STATEMENT OF FACTS

      On April 14, 2013, Kimberly Nelson was a resident at the Mason, an affordable

housing facility. On that day Nelson encountered Baltsas and his girlfriend. She let them

into the building. As evidence from the building's surveillance video revealed, Baltsas

stole a television and two computers from the common area of the building that night.

      Nelson testified that the visit by Baltsas was a surprise. She denied using

methamphetamine that day and denied giving Baltsas permission to take property from

the building. Nelson testified she suffered from heart problems and that it would have

been impossible for her to have removed the items from the common area.

                                         Defense

      Baltsas testified that he was a drug dealer at the time and that he regularly dealt

drugs with Nelson. He said he had been to her apartment many times and that he went to

her apartment that night to collect $400 that Nelson owed him for past drug purchases.

      According to Baltsas, when he arrived at Nelson's residence the television and two

computers were already in bags in her apartment. He did not care who owned the items

and took them from Nelson as payment for her drug debt. Baltsas acknowledged he

knew of Nelson's circulation problems and her difficulty in walking.

                                      DISCUSSION

      Although defense counsel did not contend that Nelson was an accomplice, and did

not request any instructions on that issue, Baltsas now contends the evidence supports a

finding she was an accomplice and the failure to properly instruct the jury denied him due

process. He contends that given his testimony that Nelson had already taken the property

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from the common area before he arrived, she was potentially an accomplice under section

1111 and the jury should have been instructed to distrust her testimony and that he could

not be convicted unless her testimony was corroborated.

       While we are somewhat doubtful that the defendant's testimony in this case would

justify accomplice instructions, we are satisfied that any error was harmless by any

standard. As we will discuss, there is abundant corroboration to connect Baltsas with the

crime, independently of Nelson's testimony. Further, under the instructions actually

given, the jury was clearly aware that Nelson's credibility was at issue. Accordingly, we

will reject this challenge to the convictions.

                                    A. Legal Principles

       A trial court has a sua sponte duty to instruct a jury to distrust accomplice

testimony if "the evidence was sufficient to support an accomplice finding." (People v.

Tobias (2001) 25 Cal.4th 327, 330.) Whether a person is an accomplice is ordinarily a

question for a jury to decide. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.)

       A person is an accomplice if the person testifying would be liable for the identical

offense charged against the defendant. In other words, the person must be chargeable as

a principal in the identical crime charged against the defendant. (People v. Horton (1995)

11 Cal.4th 1068, 1113-1114.) A defendant may not be convicted of an offense based

upon the testimony of an accomplice unless that testimony is corroborated. (§ 1111.)

       Although trial courts have a duty to instruct on accomplice testimony in

appropriate cases, failure to do so may be harmless where the testimony of the

accomplice is sufficiently corroborated. (People v. Boyer (2006) 38 Cal.4th 412, 467.)

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       Assuming, arguendo, that there was enough evidence in this case to justify an

accomplice instruction, we will go directly to the question of whether any such error was

harmless.

                                       B. Analysis

       Nelson testified she did not give Baltsas permission to take the items from the

apartment's common area. Similarly, the apartment manager testified nobody had

permission to remove those items. Baltsas testified he removed the stolen items from the

building. He could hardly have testified differently since he was captured on surveillance

video removing the stolen merchandise from the building.

       The corroboration required to support a conviction based in part on accomplice

testimony does not have to be shown by proof beyond a reasonable doubt. It need only

be slight corroboration that tends to independently connect the defendant to the

commission of the charged offense. (People v. Tewksbury (1976) 15 Cal.3d 953, 968-

969; People v. Boyer, supra, 38 Cal.4th at p. 467.)

       There can be no doubt that Nelson's testimony, even if she was an accomplice, is

more than adequately corroborated. Indeed Baltsas's own testimony, which is the only

thing in the record that could possibly make Nelson an accomplice, admitted he took the

property "not caring" if it was stolen. Thus we conclude any failure to instruct on

accomplice testimony was harmless on the issue of corroboration.

       The second purpose of the instructions on accomplice testimony would be to

advise the jury to view the witness's testimony with suspicion. However, in this case the

jury was clearly aware that Nelson's credibility was at issue. Not only was the jury

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instructed on assessing credibility, but defense counsel plainly attacked her testimony as

being untruthful. In addition the jury was instructed on Baltsas's "claim of right" defense.

The jury was told that if they found Baltsas reasonably believed that Nelson gave him

permission to take the property, then they must find he did not have the intent to steal.

They were told that if the jury had a reasonable doubt whether Baltsas had the intent to

steal, they must acquit him.

       Nelson did not testify that she saw Baltsas take the property from the common

area. She only testified she did not take it and did not give Baltsas permission to take it.

The jury was aware that Nelson had physical disabilities that would make it difficult, if

not impossible, for her to take the items from the common area and take them to her

apartment in order to deliver them to Baltsas.

       The jury rejected Baltsas's story about obtaining the property from Nelson in

payment of a debt. Plainly they rejected his version of the events. Defense counsel never

contended Nelson was an accomplice, and the defense position was that Nelson

independently took the items and that all Baltsas did was to accept them without caring

who owned them. That position is inconsistent with the appellate claim that Nelson was

an accomplice. In any event, after a full review of the record we are satisfied that any

possible error was harmless by any standard. Baltsas was not prejudiced and not denied

due process.

                                      DISPOSITION

       The trial court is ordered to modify the judgment by staying the sentence on

count 2 pursuant to section 654. The court is also directed to strike the prison prior

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(§ 667.5, subd. (a)). The court is directed to amend the abstract of judgment to reflect the

changes and to forward an amended abstract to the Department of Corrections and

Rehabilitation. In all other respects the judgment is affirmed.




                                                                            HUFFMAN, J.

WE CONCUR:


              McCONNELL, P. J.


                         IRION, J.




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