Filed 10/23/14 P. v. Marrujo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.