Filed 9/29/15 P. v. Pritchard 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F068626
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF146965A)
                   v.

STEVEN LUKE PRITCHARD,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.

         James F. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Robert C. Nash and Sally Espinoza, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Steven Luke Pritchard and his codefendant wife were found sleeping in their sport
utility vehicle (SUV). Inside the SUV were controlled substances and numerous pieces
of stolen property. Defendant was ultimately convicted of burglary, receiving stolen
property, and possession of methamphetamine.
          On appeal, defendant maintains there is insufficient evidence to establish the
required corroboration for the accomplice evidence of the codefendant and, as a result,
reversal is required. Defendant also argues there is insufficient evidence to support his
burglary conviction and the evidence “failed to establish every essential element of the
crime of burglary” in violation of his rights to a fair trial and due process. We will
affirm.
                                  RELEVANT BACKGROUND1
The burglary
          On February 11, 2013, Jan Blesener left her home on Fall River Place in
Bakersfield between 8:00 and 9:00 a.m. All the windows and doors were locked. When
she returned about four hours later, her garage door was open. Inside her home, in the
master bedroom and bathroom, numerous items were missing. For example, drawers had
been removed from a jewelry chest, and jewelry was also missing.
          Noticing a double-pane glass door in a bathroom had been broken and her
computer was missing from the living room, Blesener contacted police. A report was
made and pictures were taken. A police representative lifted fingerprints and took
samples of blood stains present. Several hours later, about midnight, Blesener was
contacted by Bakersfield police officer David Hamma. Hamma returned some of her
missing property on that occasion. Other property was returned later.
A stop and an investigation
          About 9:50 p.m. on that same date, Officer Hamma was dispatched to the area of
White Lane and Gosford Road. He encountered defendant and his wife Tiffany
Pritchard2 parked in defendant’s SUV. Methamphetamine was found, and during a

          1Additional   factual evidence will be addressed in the discussion where necessary.
          2Becausedefendant and Tiffany Pritchard share the same last name, we will refer to her
as Tiffany to avoid confusion. No disrespect is intended.

                                                   2.
search of the SUV Hamma noted various items strewn about, including dresser drawers, a
computer, and jewelry. A search of defendant’s person, and right front pants pocket in
particular, revealed a baggie containing a gold necklace with a star pendant.
        Defendant was arrested and his wife was released after defendant acknowledged
the methamphetamine was his. Defendant’s SUV and gray Verizon Samsung cell phone
were released to Tiffany at his request. Hamma overheard Tiffany tell defendant she
would arrange for his bail at Aladdin Bail Bonds.
        Meanwhile, Hamma performed a records check and realized some of the property
he had seen in the back of defendant’s SUV matched the description of property taken
from Blesener’s home. Because defendant was still at the booking facility, Hamma
approached defendant about the stolen property. Hamma then went to Aladdin Bail
Bonds; Tiffany was there with defendant’s SUV. He noticed she was holding a gray
Samsung cell phone, the same type of phone taken from defendant’s person and entrusted
to her care. Tiffany was taken into custody for possession of stolen property. When
Hamma looked at the cell phone, he noted a text message directed to Ruston Berrigan at
11:39 a.m. on February 11, 2013. The message read, “Come open the gate. We just came
up.”3
        Defendant’s SUV was searched again after Tiffany was arrested,4 and Hamma
found drawers and a desktop computer inside.5 Tiffany told Hamma she and defendant
argued about the fact he had stolen property, and she was injured during that argument.
        Hamma then contacted Berrigan. Berrigan acknowledged knowing defendant and
Tiffany, but denied any involvement in the burglary. Berrigan never saw defendant or
Tiffany on February 11, 2013. He did receive a phone call and a text message from
defendant, but he was not at home at the time he received the text message. Berrigan



        3“Just   came up” is slang meaning an individual has just stolen something of value.
        4Tiffany later   pled guilty to one count of receiving stolen property in this case.
        5A   laptop computer found in the SUV was identified as belonging to Yang Xie.

                                                    3.
indicated a neighbor called him to report people in the area between their shared
properties; the neighbor advised it looked as though those people were unloading trash.
       Berrigan’s home was searched but no stolen property was found inside. Rather,
dresser drawers and others items were found outside on Berrigan’s property. Berrigan
was arrested for an outstanding felony warrant in a separate matter; he was never charged
in this case.
       Following jury trial, defendant was convicted of violations of burglary (Pen. Code,
§ 460, subd. (a) [count 1; first degree]), receiving stolen property (id., § 496, subd. (a)
[count 3]), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)
[count 4]). He received a total sentence of eight years eight months.
                                       DISCUSSION
1.     Accomplice Evidence
       Defendant complains there was insufficient evidence to corroborate the testimony
given by accomplice witness Tiffany. For that reason, he contends his conviction must
be reversed. The People contend Tiffany’s testimony was sufficiently corroborated. We
agree with the People.
       Penal Code section 1111 provides as follows:

              “A conviction can not be had upon the testimony of an accomplice
       unless it be corroborated by such other evidence as shall tend to connect the
       defendant with the commission of the offense; and the corroboration is not
       sufficient if it merely shows the commission of the offense or the
       circumstances thereof.

               “An accomplice is hereby defined as one who is liable to prosecution
       for the identical offense charged against the defendant on trial in the cause
       in which the testimony of the accomplice is given.”
There is no question that accomplice testimony is admissible at trial, even if
uncorroborated. (People v. Tewksbury (1976) 15 Cal.3d 953, 967.) The California
Supreme Court has explained that corroboration is required for accomplice testimony at
trial because “such testimony has been legislatively determined never to be sufficiently
trustworthy to establish guilt beyond a reasonable doubt unless corroborated.” (Ibid.)

                                              4.
       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, supra, 15 Cal.3d at pp. 968-
969; People v. Boyer (2006) 38 Cal.4th 412, 467.)

       “‘“Such [corroborative] evidence ‘may be slight and entitled to little
       consideration when standing alone. [Citations.]’” (People v. Miranda
       (1987) 44 Cal.3d 57, 100.) “Corroborating evidence ‘must tend to
       implicate the defendant and therefore must relate to some act or fact which
       is an element of the crime but it is not necessary that [such] evidence be
       sufficient in itself to establish every element of the offense charged.’
       [Citation.]” (People v. Sully (1991) 53 Cal.3d 1195, 1228.)’ ([People v.]
       Zapien [(1993) 4 Cal.4th 929], 982.)” (People v. Boyer, supra, at p. 467.)
       The jury was instructed with CALCRIM No. 335. Specifically, it was instructed,
in pertinent part, as follows:

              “If the crimes of residential burglary … were committed, then
       Tiffany Pritchard was an accomplice to those crimes. You may not convict
       the defendant of residential burglary … based on the statement or testimony
       of an accomplice alone.

               “You may use the statement or testimony of an accomplice to
       convict the defendant only if, one, the accomplice’s statement or testimony
       is supported by other evidence that you believe; two, that supporting
       evidence is independent of the accomplice’s statement or testimony; and,
       three, that supporting evidence tends to connect the defendant to the
       commission of the crime.

               “Supporting evidence, however, may be slight. It does not need to
       be enough by itself to prove that the defendant is guilty of the charged
       crime, and it does not need to support every fact about which the witness
       testified.

               “On the other hand, it is not enough if the supporting evidence
       merely shows that a crime was committed or the circumstances of its
       commission. The supporting evidence must tend to connect the defendant
       to the commission of the crime.

              “Any statement or testimony of an accomplice that tends to
       incriminate the defendant should be viewed with caution. You may not,
       however, arbitrarily disregard it. You should give that statement or

                                            5.
       testimony the weight you think it deserves after examining it with care and
       caution and in light of all the other evidence.”
       Here, Tiffany’s testimony, standing alone, is not sufficient for a conviction. But
the corroboration of her accomplice testimony need only be slight, and the other evidence
meets that standard. The corroborating evidence here reasonably supports the
truthfulness of Tiffany’s testimony as discussed below.
       Defendant argues the corroborating evidence of the text message on the cell phone
is insufficient; he contends more proof was required to prove the cell phone belonged to
defendant. We do not agree. First, the text message sent from 661-703-7877 at 11:39
a.m. on February 11, 2013, tends to connect the sender with the commission of a
burglary: “Come open the gate. We just came up,” a phrase understood to mean
something of value had been stolen. Blesener’s home—located near Berrigan’s
property—was burglarized between 9:00 a.m. and 1:00 p.m. on that date. The following
evidence tends to show the sender of the text message was defendant: Hamma found the
phone on defendant’s person, defendant requested Tiffany take possession of his
property when he was arrested, including the gray Verizon Samsung cell phone and his
SUV, and it appeared Tiffany was still in possession of the phone several hours later
when Hamma encountered her again. This corroborating evidence is Hamma’s own
experiences or observations, contrary to defendant’s assertion that “all of the evidence”
Hamma testified to “was told to him directly by Tiffany.” Moreover, Berrigan testified
the text message he received that day came from the same number used to communicate
with defendant and Tiffany once previously.
       The foregoing evidence does not merely show a burglary was committed or the
circumstances thereof. (Pen. Code, § 1111.) Further, the type of corroboration defendant
maintains is necessary—phone records, et cetera—is that which would be synonymous
with proof beyond a reasonable doubt. And, yet, the law does not require proof beyond a
reasonable doubt in this situation; the evidence need only be slight corroboration and
need not be shown by proof beyond a reasonable doubt. (People v. Tewksbury, supra, 15

                                            6.
Cal.3d at pp. 968-969; People v. Boyer, supra, 38 Cal.4th at p. 467; see People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1177-1178.)
       Additionally, Tiffany testified she did not have anything to do with the burglary.
That testimony was partially corroborated by Berrigan who also denied any involvement.
Specifically, Berrigan testified he did not see either defendant or Tiffany on that date, he
was not at home, and he denied going to a home in the Rosedale area that day with
Tiffany. “‘“‘[I]t is the exclusive province of the … jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination depends.’”’”
(People v. Jackson (2014) 58 Cal.4th 724, 749.) The jury obviously believed Berrigan,
and his testimony corroborated Tiffany’s accomplice testimony. Given Tiffany’s
testimony or statements that defendant admitted to committing the burglary and she had
nothing to do with it, and Berrigan’s testimony that he was not involved, his testimony
amounts to corroborating evidence tending to connect defendant to the commission of the
burglary at the Blesener residence. (People v. Tewksbury, supra, 15 Cal.3d at pp. 968–
969; People v. Boyer, supra, 38 Cal.4th at p. 467; People v. Samaniego, supra, 176
Cal.App.4th at pp. 1177-1178.)
       In conclusion, there is sufficient evidence corroborating the testimony given by
Tiffany and tending to connect defendant to the Blesener burglary.
2.     Sufficiency of the Evidence
       Defendant contends there was insufficient evidence to support his conviction for
burglary of the Blesener residence and, relatedly, the evidence failed to establish every
element of the crime in violation of his federal constitutional rights. More particularly,
defendant argues the corroborating evidence was insufficient because Tiffany’s testimony
and statements were uncorroborated, and Officer Hamma’s evidence is nothing more than
speculation.
       In assessing a claim of insufficiency of the evidence, the reviewing court’s task is
to review the entire record in the light most favorable to the judgment to determine
whether it contains substantial evidence—evidence that is reasonable, credible, and of

                                             7.
solid value upon which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. The standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence. It is the jury, not the appellate court, which
must be convinced of a defendant’s guilt beyond a reasonable doubt. If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1,
11; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320; see also People v. Johnson
(1980) 26 Cal.3d 557, 578.)
       In reviewing a challenge to the sufficiency of the evidence, appellate courts do not
determine the facts. We examine the record as a whole in the light most favorable to the
judgment and presume the existence of every fact the trier of fact could reasonably
deduce from the evidence in support of the judgment. (People v. Kraft (2000) 23 Cal.4th
978, 1053.) If the verdict is supported by substantial evidence, a reviewing court must
accord due deference to the trier of fact and not substitute its evaluation of a witness’s
credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Unless the testimony of a single witness is physically impossible or inherently
improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005)
34 Cal.4th 1149, 1181.)
       An appellate court must accept logical inferences the jury might have drawn from
circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before the
judgment of the trial court can be set aside for insufficiency of the evidence, “it must
clearly appear that on no hypothesis whatever is there sufficient substantial evidence to
support the verdict of the jury.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429; see
People v. Conners (2008) 168 Cal.App.4th 443, 453.)
       Here, there is substantial evidence to support defendant’s conviction for burglary.
As discussed, ante, Tiffany’s testimony was not the only evidence supporting defendant’s



                                              8.
conviction. The record contains sufficient evidence, including the testimony of Hamma
and Berrigan, to reasonably justify the jury’s findings.
       Hamma testified the cell phone he found on defendant’s person at the time of his
arrest was entrusted to Tiffany, along with defendant’s SUV, as Tiffany was not arrested
at Hamma’s first encounter with the couple. Once Hamma realized the property he had
seen inside defendant’s SUV matched the description of the missing property from the
Blesener residence, Hamma caught up with Tiffany at the bail bond office. Tiffany was
in possession of a cell phone that appeared to be the same phone Hamma located on
defendant and had given to Tiffany earlier. That same cell phone contained a text
message to Berrigan, asking Berrigan to “[o]pen the gate. We just came up,” slang
terminology for having valuable stolen property. Berrigan testified he received a call
from defendant, and the aforementioned text message, but he was not at home at the time.
Berrigan also testified he had no connection to the stolen property found on his property
near the fence he shared with a neighbor who reported seeing people unloading trash in
the area on February 11, 2013, and he did not see either defendant or Tiffany on the day
of the Blesener burglary. Additionally, when defendant was arrested, a gold necklace
with a star pendant belonging to Jan Blesener was found in his right front pants pocket.
This evidence, viewed in the light most favorable to the judgment, is sufficient to support
defendant’s conviction.
       In order to prove the crime of burglary, the People must prove the following, as
the jury below was instructed:

              “[T]hat, one, the defendant entered a building; and, two, when he
       entered a building, he intended to commit theft.

               “To decide whether the defendant intended to commit theft, please
       refer to the separate instructions that I will give you on those crimes.

               “A burglary was committed if the defendant entered with the intent
       to commit theft. The defendant does not need to have actually committed
       theft as long as he entered with the intent to do so.



                                             9.
              “The People allege that the defendant intended to commit theft. You
       may not find the defendant guilty of burglary unless you all agree that he
       intended to commit one of those crimes at the time of entry. You do not all
       have to agree on which one of those crimes he intended.” (See CALCRIM
       No. 1700.)
Theft is proven if a perpetrator took possession of property owned by someone else,
without the owner’s consent, when the property was taken the perpetrator intended to
deprive the owner permanently or for an extended period of time, and moved the property
and kept it for a period of time.
       The jury could have reasonably inferred defendant entered the Blesener residence
from the fact Jan Blesener’s star pendant necklace was found in his right front pants
pocket several hours after the burglary and defendant sent Berrigan the text message,
during the limited window within which the burglary actually took place, indicating he
and another person had just stolen valuable property; also, Berrigan’s home was located
near Blesener’s residence.
       The jury could have also reasonably inferred defendant took possession of
Blesener’s property because the majority of her property was found in his SUV, and her
gold necklace was found in his right front pants pocket. Blesener herself testified she had
not given anyone permission to enter her locked home during her absence on
February 11, 2013, and she did not even know defendant. Clearly, Blesener’s property
was taken without her consent. It can be reasonably inferred that where the majority of
Blesener’s property was found in defendant’s SUV some nine hours after the burglary, in
a parking lot located at White Lane and Gosford Road, that he had moved the property
and intended to deprive Blesener of her property permanently.
       We find the foregoing evidence in support of the judgment to be reasonable,
credible, and of solid value. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) Further,
whether all or some of the testimony given by Tiffany, Berrigan, or Hamma was credible
was a question for the jury; we do not reweigh credibility determinations. (People v.
Ochoa, supra, 6 Cal.4th at p. 1206; see also People v. D’Arcy (2010) 48 Cal.4th 257,


                                            10.
293.) Defendant simply cannot overcome the hurdle of establishing it is clear “that on no
hypothesis whatever is there sufficient substantial evidence to support the verdict of the
jury.” (People v. Hicks, supra, 128 Cal.App.3d at p. 429.) Even if we agreed with
defendant that the evidence “demonstrates that the Blesener burglary was committed by
Tiffany and Ruston Berrigan,” and we make no such finding, reversal is not appropriate
because the evidence could be reconciled with a contrary finding. (People v. D’Arcy,
supra, at p. 293.)
       In sum, the evidence is sufficient to support the jury’s finding that defendant was
guilty of burglary.
                                     DISPOSITION
       The judgment is affirmed.

                                                         ___________________________
                                                                             PEÑA, J.
WE CONCUR:


 ________________________________
LEVY, Acting P.J.


 ________________________________
DETJEN, J.




                                            11.
