Filed 2/1/16 P. v. Pineda CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


                    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.
                                               2
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.




                                              3
       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


                                             4
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


                                              5
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) <http://www.oed.com> [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.




                                              6
       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.


                                              7
       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.
                                              8
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.


                                             9
       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




                                               10
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.


                                              11
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.


                                             12
       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.




                                               13
                                      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.




                                            14
