Filed 10/23/14 P. v. Marrujo CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058301

v.                                                                       (Super.Ct.No. RIF1205259)

THOMAS LOUIS MARRUJO,                                                    OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.

(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed.

         Mark D. Johnson, under appointment by 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, Eric A. Swenson, Laura A.

Glennon and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.



                                                             1
       Following a bench trial, the trial court found defendant guilty of tampering with

a railroad (Pen. Code, § 587, subd. (a))1 and possession of stolen property (§ 496,

subd. (a)). The trial court also found true that defendant had suffered two prior serious or

violent felony convictions (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)).

Defendant was sentenced to a total term of six years in state prison with credit for time

served. On appeal, defendant contends (1) there was insufficient evidence to support his

convictions for tampering with a railroad and possession of stolen property; and (2) his

due process rights were violated when the trial court relied on hearsay statements for an

improper purpose to support his convictions. We reject these contentions and affirm the

judgment.

                                               I

                                FACTUAL BACKGROUND

       On April 25, 2012, Riverside County Sheriff’s Sergeant Raymond Huskey was on

patrol in a marked vehicle in the city of Perris when he was approached by a citizen. The

citizen informed the sergeant that there was a person tampering with a nearby railroad

approximately two miles east of their location, and it appeared there was a vehicle

waiting nearby for the person on the tracks.

       When Sergeant Huskey arrived at the railroad in less than two minutes, he saw

defendant crouched over the center of the railroad tracks, and a vehicle parked about


       1   All future statutory references are to the Penal Code unless otherwise stated.



                                               2
400 feet away near a water treatment plant. Sergeant Huskey pulled over, parked his

patrol car, and made eye contact with defendant, who appeared nervous. Defendant stood

up and began walking away from Sergeant Huskey. As Sergeant Huskey exited his car,

the nearby waiting vehicle accelerated from the railroad and out of sight.

       While walking toward defendant, Sergeant Huskey yelled to defendant, “ ‘What

are you doing?’ ” Defendant continued walking. Defendant did not stop or turn around

to Sergeant Huskey, but responded, “ ‘Just walking.’ ” As Sergeant Huskey approached

defendant, he noticed that defendant had about six copper wire coils approximately

18 inches long clenched in his left fist. Defendant was holding his fist close to the middle

of his body. Based on the sergeant’s training and experience, the sergeant believed

defendant was trying to conceal the copper wire coils. The copper wire coils appeared as

if they had been freshly cut because the color of the copper ends was a brighter color than

the rest of the coil. When Sergeant Huskey asked defendant, “where he had got those,”

defendant replied that he had found them on the tracks. Sergeant Huskey then asked

defendant if he knew how much money he could receive for those coils. Defendant

responded, “ ‘$2.81 a pound.’ ” Sergeant Huskey thereafter detained defendant, and

asked defendant if he had any weapons on him. Sergeant Huskey also asked defendant to

lift his shirt because he was wearing shorts and a shirt that went below his waistline.

When defendant complied, Sergeant Huskey noticed that defendant had a wire cutting

tool in his right, front pants pocket.




                                             3
       Based on his observations, Sergeant Huskey then walked back to the railroad

location where he had first observed defendant squatting. Near that area, the sergeant

noticed the wires that were still affixed to the tracks also appeared to be newly cut with a

bright copper-colored end, and looked identical to the copper wires found on defendant.

In a 40-foot area in front of where defendant had been walking, Sergeant Huskey

observed no cut wires; however, in the area behind where Sergeant Huskey first made

contact with defendant, the sergeant found approximately four locations where the

wires had been cut. Based on his experience, Sergeant Huskey believed the wire

cutting tool defendant possessed was capable of cutting the copper wires on the tracks.

Sergeant Huskey also opined that the condition of the copper wires did not suggest they

had fallen off of the tracks from normal wear and tear; rather, it appeared as if they had

been recently cut. Sergeant Huskey thereafter called the Burlington Northern Santa Fe

(BNSF) Railroad Police, arrested defendant, and transported defendant to jail.

       Daniel Hardcastle (Hardcastle), a senior special agent for BNSF, responded to

Sergeant Huskey’s call. Sergeant Huskey showed Hardcastle the area of the cut wires

and the wire cutting tool defendant had possessed. Hardcastle also believed that the

wires had been freshly cut and that the wire cutting tool defendant possessed was capable

of cutting the wires on the railroad tracks. Hardcastle noticed eight sections of cut wire

in the area of the tracks where defendant had been observed walking and no other areas

on the tracks where wires had been cut. Hardcastle explained that in inspecting the

350 feet of railroad tracks ahead of defendant, he observed no cut sections of wire on the



                                             4
tracks; however, walking back about 300 feet from where defendant had been seen, he

noted eight sections of cut wire. In similar investigations, Hardcastle had never come

across wires laying on the tracks.

       Dennis Skeels (Skeels), the signal manager for BNSF who manages the software

and hardware for the section of the railroad where defendant was found, also concluded

that the copper wire coils defendant possessed appeared to be freshly cut. Skeels

explained that while BNSF will cut their own wires at times, they do not use the type of

tool defendant possessed; instead, BNSF uses a hammer and chisel. Skeels did not

believe the wire coils were cut with a hammer and chisel. Skeels also stated that BNSF

would never leave cut wire on the railroad tracks, as it is company policy to replace the

wire immediately and the cut wire would cause an activation failure and affect the trains’

operation.

       Defendant claimed that he was walking on the tracks on the day of the incident

and saw a wire cutter and picked it up. He then saw several cut wires. As he reached

down to pick up the copper wires, he heard someone say, “ ‘Hey, what are you doing?’ ”

Defendant responded, “ ‘Just walking.’ ” When questioned about the wire found in his

possession, defendant stated that he found it.

       Defendant stated that he had walked around those tracks many times. He admitted

that he knew he could receive about $2 a pound for taking and selling copper wires,

called scrapping. He also stated that he had “scrapped” copper pipes in the past and does

this with anything he can find. Defendant also acknowledged that he had previously



                                             5
suffered two felony burglary convictions in 1986 and 1987, and a petty theft with a prior

conviction in 1993.

                                               II

                                        DISCUSSION

       Defendant contends there was insufficient evidence to support his convictions for

tampering with a railroad (§ 587, subd. (a)) and possession of stolen property (§ 496,

subd. (a)). Defendant reasons the only evidence supporting his convictions consisted of

the citizen’s statements to the sergeant, and those statements could not be considered for

their truth. When the trial court did so, it violated his rights to due process and a fair trial.

Defendant further claims had the trial court not relied on the statement for its truth, it

would have found there was insufficient evidence to support its verdict. Given the

interrelated nature of defendant’s substantial evidence argument with his challenges to

the citizen’s statements admitted at trial, we will first address the admissibility of the

statements made by the citizen to the sergeant.

       A.     Admission of Citizen’s Statement

       Sergeant Huskey testified that he was driving in his patrol vehicle stopped at an

intersection when a fellow motorist stopped alongside his vehicle and informed him that

he had seen something up the road. At this point, the prosecutor interjected, and the

following colloquy occurred:




                                               6
       “[PROSECUTOR]: And, Your Honor—anticipating a hearsay objection, we’re

not offering this for the truth of the matter asserted. It goes to the officer’s subsequent

actions and investigation.

       “THE COURT: That would be an exception to the hearsay rule; so you may

proceed.

       “[PROSECUTOR]: At that point, what did he tell you?

       “[SERGEANT HUSKEY]: That there was a person on the railroad tracks down

by the freeway about two miles east of my location, and he was tampering or doing

something to the railroad tracks.

       “[DEFENSE COUNSEL]: I object, Your Honor. At the last trial, that was

excluded.

       “THE COURT: Well—

       “[DEFENSE COUNSEL]: Tampering.

       “THE COURT: You know, this is a court trial, so the jury is not going to be

prejudiced. But, the statement that the citizen made—and actually, I don’t really think

that reporting a crime amounts to hearsay, but in the event it was hearsay, there is an

exception because then this would explain—it’s called ‘state of mind,’ why the officer

then did what he did next. Okay?

       “[DEFENSE COUNSEL]: Okay.

       “THE COURT: But I’ll note your statement for the record.




                                              7
          “[PROSECUTOR]: Thank you. And for the record, I’d also make another

exception under the contemporaneous statement clause.

          “THE COURT: It will be an excited utterance as well under the Evidence Code.”

          The prosecutor then continued with questioning Sergeant Huskey. Sergeant

Huskey testified the motorist also stated there was a vehicle waiting for the person on the

tracks.

          The People initially claim that defendant forfeited his right to argue the hearsay

statements were improperly admitted. The People also argue that the statements were

properly admitted as a spontaneous statement under the hearsay exception rule, aside

from it being admitted for a nonhearsay purpose. The People further assert that even if

the trial court erred in improperly admitting the statements or relying upon them for their

truth, the error was harmless.

          Defendant counters that the hearsay statements of the citizen were not admitted

into evidence or offered for the truth of those statements, and therefore the trial court

erred in relying on the citizen’s statements in finding defendant guilty of the charges. To

support his position that the trial court relied heavily on the truth of the citizen’s

statements, defendant quotes from the trial court’s statement of reasons in finding

defendant guilty.

          The People’s forfeiture contention lacks merit because in the case before us, the

prosecutor, “anticipating a hearsay objection,” stated the People were not offering the

statement for the truth of the matter asserted. Defense counsel had neither the



                                                8
opportunity nor the need to object under these circumstances. In addition, it appears

defense counsel objected to the citizen’s statement, stating the statement was excluded at

the last trial.2 Therefore, under these circumstances, we find defendant did not forfeit his

evidentiary claim on appeal.

       We also reject defendant’s claim that the citizen’s statements were not admitted

into evidence. There are several ways the citizen’s statements could properly be admitted

into evidence: either as nonhearsay or as statements falling within the spontaneous

declaration or state of mind exceptions to the hearsay rule. Otherwise, the sergeant’s

testimony of what the citizen reported would be inadmissible hearsay erroneously

received into evidence.

       Hearsay is “evidence of a statement that was made other than by a witness while

testifying at the hearing and that is offered to prove the truth of the matter stated.”

(Evid. Code, § 1200, subd. (a).) Unless subject to an exception, hearsay evidence is

inadmissible. (Id., subd. (b).)

       Under Evidence Code section 1240: “Evidence of a statement is not made

inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or

explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made

spontaneously while the declarant was under the stress of excitement caused by such

perception.”

       2 Defendant had initially been tried by a jury in October 2012. However, the trial
court declared a mistrial after the jury announced it was deadlocked on both counts. A
bench trial commenced on January 2, 2013.


                                               9
       “‘To render [statements] admissible [under the spontaneous declaration exception]

it is required that (1) there must be some occurrence startling enough to produce this

nervous excitement and render the utterance spontaneous and unreflecting; (2) the

utterance must have been before there has been time to contrive and misrepresent, i.e.,

while the nervous excitement may be supposed still to dominate and the reflective powers

to be yet in abeyance; and (3) the utterance must relate to the circumstances of the

occurrence preceding it.’ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318.)

       As used in Evidence Code section 1240, “spontaneous” is used in the sense of “to

describe actions undertaken without deliberation or reflection.” (People v. Farmer

(1989) 47 Cal.3d 888, 903.) “The crucial element in determining whether a declaration is

sufficiently reliable to be admissible under this exception to the hearsay rule is . . . not the

nature of the statement but the mental state of the speaker.” (Ibid.) Ultimately, the

decision whether to admit a statement as a spontaneous utterance lies within the

discretion of the trial court. (People v. Gallego (1990) 52 Cal.3d 115, 175.)

       Here, the trial court did not make any findings as to why the citizen’s statements to

the sergeant were “spontaneous” declarations. The People claim “it appears from the

record that the motorist saw [defendant] on the tracks [which were only two miles from

the location where the citizen made the statements], this observation alarmed him, and

while he was still under the stress of this observation, he told Sergeant Huskey what he

had seen.” However, these claims by the People appear to be speculative as to: (1) when

the citizen observed defendant on the railroad tracks; and (2) whether the citizen was still



                                              10
under the effect of that event at the time he reported his observation to Sergeant Huskey.

Nothing in the record indicates the citizen’s statements were made at or shortly after he

observed defendant on the railroad tracks or that he was still under the stress of

excitement caused by the observation. Nothing in the record suggests the citizen did not

have an opportunity to reflect in the interim between the time he observed defendant and

the time he reported his observation to the sergeant. Nothing in the record shows that the

citizen was in an excited state so that he was unable to reflect or deliberate at the time of

reporting his observation to the sergeant. We conclude the trial court erred in admitting

the citizen’s statements under the spontaneous declarations exception to the hearsay rule.

       We also conclude that the state of mind exception to the hearsay rule does not

apply to this case because the statute governing that exception, Evidence Code

section 1250, deals with admissibility of a statement offered to prove a declarant’s state

of mind or conduct. Evidence Code section 1250 provides: “(a) Subject to Section 1252

[of the Evidence Code], evidence of a statement of the declarant’s then existing state of

mind, emotion, or physical sensation (including a statement of intent, plan, motive,

design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay

rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind,

emotion, or physical sensation at that time or at any other time when it is itself an issue in

the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the

declarant. [¶] (b) This section does not make admissible evidence of a statement of

memory or belief to prove the fact remembered or believed.”



                                             11
       This exception allows “evidence of a declarant’s statements regarding his or her

then existing state of mind or emotion, when the declarant’s state of mind or emotion is

at issue in the case, or when the evidence is offered to prove or explain the declarant’s

acts or conduct.” (People v. Ruiz (1988) 44 Cal.3d 589, 608, original italics.) The

citizen’s statements do not reflect the citizen’s emotional state and the citizen’s state of

mind or emotion was not at issue in this case. The trial court erroneously stated the state

of mind exception applied to explain “why the officer then did what he did next.” A

hearsay statement offered to prove the conduct of someone other than the declarant is not

admissible under the state of mind hearsay exception embodied in Evidence Code

section 1250. (People v. Noguera (1992) 4 Cal.4th 599, 622.)

       Since neither the spontaneous declaration nor the state of mind exceptions to the

hearsay rules apply to these facts, we next inquire whether the testimony can be deemed

nonhearsay. An out-of-court statement is admissible for a nonhearsay purpose if the

nonhearsay purpose is relevant to the dispute. (People v. Bunyard (1988) 45 Cal.3d

1189, 1204.) Thus, to explain his or her investigation of a crime scene, an officer can

testify regarding a witness’s statement if the officer’s investigation of the crime scene is

relevant to an issue in dispute. (People v. Lucero (1998) 64 Cal.App.4th 1107, 1109-

1110; People v. Scalzi (1981) 126 Cal.App.3d 901, 907.)

       Only relevant evidence is admissible (Evid. Code, § 350), and to be relevant

evidence must have some tendency to prove or disprove a disputed fact of consequence to

the determination of the case (id., § 210). Testimony from a police officer relating



                                              12
information he received from a third party to explain why the officer acted as he did is

not relevant when the good faith or reasonableness of his conduct is not at issue. (People

v. Lucero, supra, 64 Cal.App.4th at pp. 1109-1110; People v. Reyes (1976) 62

Cal.App.3d 53, 68.) Here, the questions presented to the trial court were whether

defendant maliciously and unlawfully removed or destroyed any part of any railroad track

or fixture (§ 587, subd. (a)), and whether defendant knowingly received or concealed

stolen property (§ 496, subd. (a)). The information that prompted the sergeant to conduct

his investigation had no tendency to prove or disprove that defendant committed the

offenses. Thus, the sergeant’s testimony about the anonymous tip “was simply irrelevant

for the nonhearsay purpose offered because it had no tendency in reason to prove any

disputed issue of fact in the action.” (People v. Lucero, supra, at p. 1110.)

       A leading evidentiary treatise has described the problem as follows: “One area

where abuse may be a particular problem involves statements by arresting or

investigating officers regarding the reason for their presence at the scene of a crime. The

officers should not be put in the misleading position of appearing to have happened upon

the scene and therefore should be entitled to provide some explanation for their presence

and conduct. They should not, however, be allowed to relate historical aspects of the

case, such as complaints and reports of others containing inadmissible hearsay. Such

statements are sometimes erroneously admitted under the argument that the officers are

entitled to give the information upon which they acted. The need for this evidence is

slight, and the likelihood of misuse great. Instead, a statement that an officer acted ‘upon



                                             13
information received,’ or words to that effect, should be sufficient.” (2 McCormick,

Evidence (7th ed. 2013) Hearsay, § 249, pp. 193-195.)

       Nevertheless, the trial court’s error in admitting the citizen’s statements and the

trial court’s error in purportedly relying on what the citizen informed the sergeant in its

statement of decision was harmless. (People v. Reed (1996) 13 Cal.4th 217, 230-231.)

As explained below (at p. 15, post), II B., given the ample circumstantial evidence of

defendant’s guilt, there is sufficient evidence to support a finding defendant committed

the charged crimes, even without the citizen’s statements. On this record, we cannot say

“it is reasonably probable that a result more favorable to [defendant] would have been

reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) We

thus discern no “miscarriage of justice” that would allow us to reverse the judgment

based on the trial court’s error in admitting and purportedly relying on the challenged

testimony. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); see People v. Lucero,

supra, 64 Cal.App.4th at p. 1110 [concluding error was harmless under similar

circumstances].)

       B.     Sufficiency of the Evidence

       Defendant contends when evidence of the citizen’s statement is disregarded, there

is insufficient evidence to support his convictions for tampering with a railroad (§ 587,

subd. (a)) and receiving stolen property (§ 496, subd. (a)). We disagree.




                                             14
       In addressing a challenge to the sufficiency of the evidence supporting defendant’s

convictions, this court must determine “‘whether from the evidence, including all

reasonable inferences to be drawn therefrom, there is any substantial evidence of the

existence of each element of the offense charged.’ [Citations.]” (People v. Crittenden

(1994) 9 Cal.4th 83, 139, fn. 13; see Jackson v. Virginia (1979) 443 U.S. 307, 319;

People v. Johnson (1980) 26 Cal.3d 557, 578.) In making this determination, “[the

appellate court] must examine the whole record in the light most favorable to the

judgment to determine whether it discloses substantial evidence—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. [Citation.]” (People v. Kraft (2000) 23

Cal.4th 978, 1053.)

       The standard of review is the same when the People rely mainly on circumstantial

evidence. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Bean (1988) 46

Cal.3d 919, 932 [conviction based on circumstantial evidence will be affirmed if

circumstances reasonably justify trier of fact’s findings].) Substantial evidence includes

circumstantial evidence and the reasonable inferences drawn from that evidence. (People

v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.)

       The elements to the offense of tampering with a railroad under section 587,

subdivision (a), are: (1) the defendant “[r]emoves, displaces, injures, or destroys any part

of any railroad, . . . or any track of any railroad, or . . . other structure or fixture, or any




                                                15
part thereof, attached to or connected with any railroad”; and (2) the defendant does so

maliciously. (§ 587, subd. (a).)

       The elements to the offense of receiving stolen property under section 496,

subdivision (a), are: “(1) stolen property; (2) knowledge that the property was stolen; and

(3) possession of the stolen property.” (People v. King (2000) 81 Cal.App.4th 472, 476

[Fourth Dist., Div. Two].)

       Ample circumstantial evidence in the record demonstrates that defendant tampered

with railroad tracks and took property belonging to the railroad company. Sergeant

Huskey saw defendant crouched over the center of the railroad tracks where copper wires

had been freshly cut, and a vehicle parked about 400 feet away. When Sergeant Huskey

made eye contact with defendant, defendant appeared nervous, stood up, and began

walking away from the sergeant. Meanwhile, as Sergeant Huskey exited his car, the

nearby waiting vehicle accelerated from the railroad and out of sight. When Sergeant

Huskey asked defendant what he was doing, defendant continued walking, and did not

stop or turn around to the sergeant. As Sergeant Huskey approached defendant, he

noticed defendant had freshly cut copper wires clenched in his left fist, close to the

middle of his body. Based on the sergeant’s training and experience, the sergeant

believed defendant was trying to conceal the copper wires. Defendant also had in his

right, front pants pocket, covered by his shirt, a wire cutting tool capable of cutting the

copper wires. Moreover, defendant admitted he had scrapped copper wires in the past,

knew he would receive money for them, and would scrap anything he could find.



                                             16
Furthermore, in a 40-foot area in front of where defendant had been walking, Sergeant

Huskey observed no cut wires; however, in the area behind where Sergeant Huskey first

made contact with defendant, the sergeant found approximately four locations where the

wires had been cut. While defendant testified he had found both the wire cutting tool and

the freshly cut wires laying on the tracks, BNSF officials explained that the wires had

been freshly cut; that the wire cutting tool defendant possessed was capable of cutting the

wires on the railroad tracks; that in similar investigations, BNSF had never come across

wires laying on the tracks; and that based on company policy BNSF would never leave

cut wires on the railroad tracks as the cut wires could cause an activation failure affecting

the trains’ operation. All of the above evidence points to defendant’s consciousness of

guilt and provides sufficient reasonable, credible, and solid evidence for a reasonable trier

of fact to find defendant guilty of the charged crimes beyond a reasonable doubt.

       Defendant chooses to characterize the above evidence as circumstantial.

However, it was substantial evidence from which the trial court reasonably could infer

that defendant tampered with railroad tracks and knowingly possessed the stolen copper

wires. (People v. Ceja, supra, 4 Cal.4th at pp. 1138-1139.)

       Defendant argues there was insufficient evidence to support the convictions

because: (1) he told Sergeant Huskey and testified that he found the copper wires and the

tool while walking on the railroad tracks; (2) he did not attempt to get rid of the six pieces

of wire in his possession when Sergeant Huskey approached him; (3) the wires that had

been removed were removed from a continuous section of the tracks 300 feet long and no



                                             17
wires had been removed outside that short area; and (4) eight pieces of wire had been

removed but defendant was found with only six pieces. From this evidence, defendant

suggests that someone other than defendant removed the wires from the railroad tracks

and took them out of the area. However, it is the province of the trier of fact to determine

the credibility of witnesses and the truth or falsity of the facts upon which a

determination depends. (People v. Jones (1990) 51 Cal.3d 294, 314.) The trial court here

found defendant’s version of the events not credible.

       Defendant further asserts that the prosecution failed to prove he knew the copper

wires were stolen, and therefore his conviction for possession of stolen property must be

reversed. “The knowledge element of receiving stolen property is normally proved not

by direct evidence but by an inference from circumstantial evidence. [Citation.]”

(People v. Alvarado (1982) 133 Cal.App.3d 1003, 1019.) For example, knowledge may

be “inferred from the defendant’s failure to explain how he came to possess a stolen item

or his offer of an unsatisfactory explanation or from suspicious circumstances attendant

upon his possession of the item. [Citations.]” (Id. at pp. 1019-1020.) Moreover, “proof

of knowing possession by a defendant of recently stolen property raises a strong

inference of the other element of the crime: the defendant’s knowledge of the tainted

nature of the property. This inference is so substantial that only ‘slight’ additional

corroborating evidence need be adduced in order to permit a finding of guilty.

[Citation.]” (People v. Anderson (1989) 210 Cal.App.3d 414, 421.)




                                             18
       Circumstantial evidence here is sufficient to establish defendant knew the copper

wires were stolen. Defendant was seen crouched over the railroad tracks where copper

wires had been freshly cut. Moreover, defendant was found in possession of six pieces of

copper wire clenched in his fist and a tool capable of cutting such wire hidden in the

pocket of his pants. Furthermore, when defendant saw Sergeant Huskey, he appeared

nervous and attempted to walk away from the sergeant. This evidence is sufficient to

allow a rational trier of fact to conclude defendant knew the copper wires were stolen. In

other words, we cannot say that no rational trier of fact reasonably could have concluded

from such evidence that defendant had the requisite knowledge to be guilty of receiving

stolen property. Defendant’s statements that he found the copper wires and tool while

walking on the tracks do not change this result. The trial court was free to weigh the

evidence and reject defendant’s testimony, a decision we cannot second guess on appeal.

(People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

       On this record, the trial court acted well within its fact-finding powers in rejecting

defendant’s explanation and accepting the prosecution’s evidence that defendant

tampered with the railroad tracks and possessed recently stolen property under suspicious

circumstances and with no satisfactory explanation. The nature and circumstances of

defendant’s possession, and his less than credible explanation, thus supported the trial

court’s findings.




                                             19
                                       III

                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                 RAMIREZ
                                                           P. J.
We concur:



KING
                         J.



CODRINGTON
                         J.




                                       20
