NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Defendant appeals from his conviction of identity theft, conspiracy to commit identity theft, and second degree commercial burglary. He contends substantial evidence did not support the convictions, the corpus delicti rule (which requires independent evidence of the corpus delicti of the offense in addition to any extrajudicial admissions or inculpatory statements by the defendant) was not satisfied, and the trial court failed to instruct the jury sua sponte on the corpus delicti rule. We conclude the evidence was sufficient and, in light of the nature of defendant's statements, the corpus delicti rule did not apply and no instruction on it was necessary. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
After Daniel O'Connell lost his wallet with his Lowe's credit card in it, he began receiving bills from Lowe's for items he had not purchased; the credit card had been used for several transactions totaling over $3,000 in purchases. O'Connell reported the matter to the police. Officer Bowley obtained surveillance video and receipts for the transactions. The video of a transaction on August 29, 2013, at approximately 6:46 p.m., showed four individuals, two male and two female, were present when the victim's credit card was used to make a purchase of approximately $800. The four were identified as Keith Martin, Vanessa Owsley, Anna Campo, and defendant. The video showed that defendant stood with Owsley at the cash register during at least part of the transaction. Owsley had the Lowe's card; she swiped it to pay, then put it back in her pocket. The clerk handed defendant the receipt; defendant and Martin then pushed the carts out of the store. Defendant did not appear in the videos of any of the other transactions.
Calvin Davis appeared in the surveillance video of transactions using O'Connell's card on September 8 and 9, 2013. Bowley conducted a traffic stop of Davis; Davis did not deny receiving O'Connell's Lowe's card, but denied knowing Owsley or receiving the card from her. He also denied knowing the card was stolen.
A month after the August 29, 2013, transaction, Officer Theodore made a traffic stop of Campo's car to investigate the transaction. At that time, Campo made the following statement to him: Campo had been working on the deck around her residence at a mobilehome park when defendant, another resident of the park, approached her. She told defendant she had to take the deck out, but did not have the money to repair it. Defendant offered to pay for the supplies for the deck with his boss's Lowe's credit card, if Campo agreed to repay him. Campo, Martin, Owsley, and defendant then went to Lowe's together. Campo selected the lumber she needed; defendant and Owsley selected other items, including a chainsaw, which defendant selected and placed in the shopping cart. At the checkout, Owsley used the credit card, which Campo thought was odd, since defendant had said it belonged to his boss.
At trial, Theodore testified that, at lunch during the previous day of trial, when Campo called the prosecutor to determine the time she was needed to testify, the prosecutor put her on speaker phone so Theodore could hear. In the conversation that followed, the prosecutor reviewed each part of Campo's prior statement to Theodore, and Campo confirmed that it was correct.
Campo testified at trial that defendant and Owsley were her friends; Martin was her boyfriend. On August 29, 2013, defendant and Owsley contacted her while she was taking out her deck. While defendant and Martin were outside, she told Owsley about the deck and Owsley said she knew someone who had a Lowe's card and would help Campo purchase wood if Campo would pay her back. Owsley said the card belonged to defendant's boss. Campo drove the four of them to Lowe's; initially she stated defendant did not go into the store. Later she testified he walked through the store, looked at the chainsaws, and was present at the end of the transaction at the cash register. Owsley paid for the merchandise with the Lowe's card and put it back in her pocket.
After leaving Lowe's, the four returned to Campo's house and unloaded the lumber. Campo obtained money from her mother and paid back either defendant or Owsley. Defendant and Owsley loaded the other items, including the chainsaw, into Owsley's car and left.
The jury found defendant guilty of one count of identity theft (Pen. Code, § 530.5, subd. (a)),
I. Identity Theft
The elements of a cause of action for identity theft in violation of section 530.5, subdivision (a), are as follows: "(1) that the person willfully obtain personal identifying information belonging to someone else; (2) that the person use that information for any unlawful purpose; and (3) that the person who uses the personal identifying information do so without the consent of the person whose personal identifying information is being used." (People v. Barba (2012) 211 Cal.App.4th 214, 223.) The definition of "`personal identifying information' "includes a "credit card number." (§ 530.55, subd. (b).) The "unlawful purpose" includes obtaining goods without the consent of the owner of the personal identifying information. (§ 530.5, subd. (a).) Defendant contends there was insufficient evidence to convict him of the offense of identity theft, because there was no evidence defendant obtained, possessed, or used O'Connell's credit card.
A. Standard of review
"It is the prosecution's burden in a criminal case to prove every element of a crime beyond a reasonable doubt. [Citation.] To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the `substantial evidence' test. Under this standard, the court `must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on `"isolated bits of evidence."'" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261 (Cuevas).) The conviction shall stand "`unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."'" (People v. Cravens (2012) 53 Cal.4th 500, 508.)
B. Sufficiency of the evidence
1. Repudiated extrajudicial statements
Defendant contends the People's attempt to prove he either directly committed or aided and abetted in the commission of identity theft rested entirely on Campo's extrajudicial statements to Theodore, which she repudiated at trial. He argues that repudiated out-of-court statements alone cannot form the basis for conviction of an offense. Further, there was no basis for the jury to reasonably conclude Campo's extrajudicial statements were more credible than her testimony under oath in court. He concludes substantial evidence does not support his conviction on the identity theft count.
As support for his argument that repudiated out-of-court statements alone are insufficient to convict him, defendant relies on language in People v. Montiel (1993) 5 Cal.4th 877 (Montiel) (disapproved on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13). In Montiel, at the penalty phase of a capital case, evidence was admitted of statements the defendant's family members had made to police officers concerning prior incidents of the defendant's violence toward them. (Montiel, at p. 902.) The family members repudiated the statements in their testimony at the penalty trial. (Ibid.) The defendant contended evidence of the extrajudicial statements was inadmissible and insufficient to prove he committed the crimes against his family members. (Id. at p. 928.) The court concluded the issue was waived by failure to object at trial; it also rejected the defendant's claim that the failure to object constituted ineffective assistance of counsel. (Id. at pp. 928-929.)
The Montiel court stated: "Generally, an extrajudicial statement repudiated at trial cannot form the sole basis for a conviction. [Citations.] The concern is that `where "no evidence" incriminates the accused save a single witness's extrajudicial statement repudiated under oath, the extrajudicial statement lacks the "traditional indicia of reliability" which attach to an accusation made under oath and subject to cross-examination in a formal judicial proceeding....' [Citations.] We therefore assume, as defendant suggests, that an extrajudicial statement repudiated under oath is also legally insufficient, standing alone, to establish aggravating violent criminal conduct beyond a reasonable doubt [citation] at the penalty phase of a capital trial." (Montiel, supra, 5 Cal.4th at p. 929, fn. omitted.)
Montiel's statement relied on People v. Gould (1960) 54 Cal.2d 621 (Gould) and In re Miguel L. (1982) 32 Cal.3d 100, which were both cases involving repudiation of a witness's extrajudicial identification of the defendant as the perpetrator of the crime. Subsequent to the decision in Montiel, the California Supreme Court overruled Gould, to the extent it held "that an out-of-court identification is in all cases insufficient by itself to sustain a conviction and must be corroborated by other evidence linking the defendant to the crime. Instead, the substantial evidence test set forth in People v. Johnson [(1980)] 26 Cal.3d 557, 578, should be used to determine whether an out-of-court identification is sufficient to support a criminal conviction." (Cuevas, supra, 12 Cal.4th at pp. 271-272.)
In People v. Carey (1995) 44 Cal.App.4th 508 (Carey), the defendant was convicted of committing lewd and lascivious acts against his three minor stepchildren. (Id. at p. 511.) At trial, the children repudiated their accusations. On appeal, the defendant contended there was insufficient evidence to support most of the counts against him, because there was no evidence corroborating the children's repudiated extrajudicial statements. (Ibid.) The court noted there was no case holding that the rule of Gould, requiring corroboration of repudiated, extrajudicial identifications, applied to all repudiated, extrajudicial statements regarding the commission of crimes, and the court declined to so extend the rule. (Carey, at p. 512.)
"Prior inconsistent statements are properly admissible to impeach the credibility of a witness, but also, once admitted, they may serve as independent substantive evidence. [Citations.] In particular, one court allowed a prior inconsistent statement by a defendant's wife as substantive evidence in support of his conviction, rejecting the defendant's contention the `"California Constitution precludes a conviction where the only evidence connecting the accused with a crime is a prior statement repudiated by a witness at trial."' [Citation.] Accordingly, we conclude the prior statements by the children which they later repudiated or denied were properly admissible as substantive evidence in support of Carey's conviction. Further, we conclude the prior statements constitute sufficient evidence of the offenses charged without any independent corroborative evidence." (Carey, supra, 44 Cal.App.4th at p. 512, fn. omitted.)
The Carey court noted that the discussion of Gould in Montiel was dicta because the Montiel court had concluded the issue of admissibility of the prior statements was waived and the defendant had failed to show that any error was prejudicial. (Carey, supra, 44 Cal.App.4th at p. 513.) The Carey court conceded the dicta in Montiel "indicates the California Supreme Court may believe the Gould rule is broader than merely requiring corroboration in repudiated identification cases, as the court acknowledged `reliability concerns that prompted the rule apply equally when the issue is whether any crime occurred at all.'" (Carey, at p. 514.) The court continued: "Indeed, reliability of prior statements in such situations is of great concern. However, we believe the appropriate method to test such reliability is to admit such statements as substantive evidence and allow the trier of fact to weigh them against the testimony at trial by such persons in the course of determining their credibility and whether such offenses actually occurred. Thus, even though we generally attribute much weight to statements made in dicta by the California Supreme Court, we conclude the Gould rule does not extend to require corroboration of repudiated prior statements regarding the commission of crimes such as in this case, pending any express holding by that court making such an extension." (Carey, at p. 514, fn. omitted.)
Subsequent to the decision in Carey, the California Supreme Court issued its decision in Cuevas, overruling Gould. (Cuevas, supra, 12 Cal.4th 252.) Consistent with Carey, the Cuevas court's discussion of the Gould decision indicated the court did not view the rule set out in Gould—that a repudiated out-of-court identification was insufficient for conviction without corroboration by other evidence—as a rule applicable to other types of extrajudicial evidence. (Cuevas, at pp. 263-266.) It stated: "[T]here is no logic to requiring corroboration of out-of-court identifications, but not of other types of hearsay that might be offered as evidence of guilt.... Logically, therefore, out-of-court identifications and other out-of-court statements should be measured by the same standard in judging their sufficiency to support a conviction. The Gould corroboration requirement goes against this logic, for while it prohibits in all cases the use of an out-of-court identification as the sole evidence of guilt, other types of out-of-court statements may serve as the sole evidence of guilt if they satisfy the substantial evidence test." (Cuevas, at pp. 265-266.)
The Cuevas court essentially concluded repudiated out-of-court identifications should be treated like other repudiated out-of-court statements, which are admissible without corroboration, weighed by the jury along with all the other evidence presented, and tested by the substantial evidence standard on appeal.
Consistent with Carey and Cuevas, we conclude the repudiated extrajudicial statements of Campo, which were admitted as prior inconsistent statements, were sufficient, without corroboration, to form the basis of defendant's conviction if the evidence against him met the substantial evidence test.
2. Obtaining credit card and using it for unlawful purpose
Those involved in the commission of a crime are principals, "whether they directly commit the act constituting the offense, or aid and abet in its commission." (§ 31.) Defendant contends there was no substantial evidence he either directly committed the offense of identity theft or aided and abetted in its commission. He asserts there is no evidence he ever had the card in his possession or used it. The People's theory was that defendant was guilty as an aider and abettor.
"[A]n aider and abettor is a person who, `acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.'" (People v. Prettyman (1996) 14 Cal.4th 248, 259.) The defendant's subjective intent to encourage or facilitate the actions of the perpetrator must be formed prior to or during the commission of the offense. (People v. Joiner (2000) 84 Cal.App.4th 946, 967.) If the aider and abettor has not participated in the planning of the offense, he or she must take affirmative action at the time the offense is committed. (Ibid.) "Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting." (In re Michael T. (1978) 84 Cal.App.3d 907, 911.) "However, `[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.'" (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) "`Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.'" (Campbell, supra, 25 Cal.App.4th at p. 409.)
Defendant argues there was insufficient evidence that defendant knew Owsley intended to commit identity theft, that defendant intended to encourage or facilitate Owsley's commission of the offense, or that defendant did any act that assisted in the commission of the crime. Focusing on Campo's trial testimony, he asserts he was merely acquainted with Owsley and present when Owsley used the card to purchase goods, which is insufficient to establish aiding and abetting. Defendant argues he did not discuss use of the credit card with Campo; Campo testified she discussed it only with Owsley. Further, there was evidence Owsley had used the card by herself to purchase materials from Lowe's earlier the same day. Defendant contends accepting the receipt and pushing the cart out to the car occurred after the offense was completed, so they did not facilitate its commission. Finally, Campo testified Owsley took charge of the purchased items, other than Campo's lumber, after the lumber was unloaded at Campo's house.
Defendant's discussion of the evidence ignores Campo's prior statement to Theodore. Campo told Theodore, shortly after the offense was committed, that it was defendant who offered to help her purchase lumber for the deck with his boss's credit card. She said defendant and Owsley, who had "some sort of dating relationship," accompanied Campo and Martin to Lowe's. They all went inside and walked throughout the store. Campo selected lumber for her deck. Defendant and Owsley selected items unrelated to the deck, including a chainsaw that defendant took from a store display and placed in the shopping cart. When they went to the checkout, defendant asked Campo to select more items, but she declined. Defendant displayed anger because she would not select additional items. Campo told Theodore she thought it was odd that Owsley used the credit card to pay, because it belonged to defendant's boss; but the transaction went through, so she was not concerned. She said she paid defendant back for the lumber.
In her testimony in court, Campo conceded she could not remember the events of August 29, 2013, clearly. She admitted making the statement to Theodore and denied lying to him, instead blaming the asserted discrepancies in that statement on being in a hurry to get to work and being distraught about a custody dispute with the father of her children. Campo admitted telling the prosecutor earlier on the day of her trial testimony, on the speaker phone with Theodore and Bowley listening, that her earlier statements to Theodore were correct.
At trial, Campo first testified defendant did not go inside Lowe's, but remained outside. She later testified defendant remained outside smoking a cigarette while the others were inside selecting items, but he came in at the end of the transaction at the cash register. Campo then testified defendant walked through the store with the others "maybe once" while they were selecting items. Campo recalled defendant looking at chainsaws, but did not remember who put the chainsaw they purchased in the shopping cart.
Campo was not sure to whom she gave the money to pay for the lumber, defendant or Owsley. She was not sure how much she paid, whether it was $50 or the approximately $92 the receipt indicated the lumber cost. After the four returned to Campo's house and unloaded the lumber, the remaining merchandise was loaded into Owsley's car, and defendant and Owsley left in it.
Prior inconsistent statements are admissible as substantive evidence against a defendant. (Carey, supra, 44 Cal.App.4th at p. 512.) In this case, there was evidence defendant made the offer to Campo to use his boss's credit card to pay for the lumber for her deck if she would pay him back. Defendant then accompanied Campo, Martin, and Owsley to Lowe's where he joined in selecting items to purchase, including a chainsaw, which he took from the display and placed in the cart. Defendant encouraged Campo to purchase more items, which would have meant a larger cash repayment to him, and he appeared angry when she declined to buy more. Defendant stood next to Owsley as she swiped the card to pay for the merchandise, accepted the receipt from the cashier, and pushed the cart containing the merchandise out to the car. Campo paid defendant for the lumber; defendant and Owsley left together in her car with the merchandise other than Campo's lumber.
The jury could infer from defendant's relationship with Owsley, defendant's offer to use what he represented to be his boss's credit card to purchase Campo's lumber, the inconsistencies in Campo's trial testimony, and the other circumstances surrounding the transaction that defendant knew the credit card was stolen, knew Owsley had it in her possession and intended to use it to purchase goods at Lowe's, and intended to and did assist in and encourage the commission of the crime of identity theft. The jury could reasonably infer defendant aided and encouraged the commission of the crime by persuading Campo to purchase items using the card and repay him for them, by accompanying Campo, Martin, and Owsley to Lowe's to make the purchases, by selecting items to be purchased, including the chainsaw, by accepting the receipt after the purchase was made, and by assisting in loading, transporting, and unloading the items purchased. There was substantial evidence to support a conclusion that defendant aided and abetted in the commission of identity theft.
Defendant argues there was no reasonable basis for the jury to believe Campo's out-of-court statement to Theodore rather than her in-court testimony under oath. Credibility determinations, however, are for the jury, not the reviewing court. (Evid. Code, § 312, subd. (b); People v. Knighton (1967) 250 Cal.App.2d 221, 231.) There were sufficient weaknesses and inconsistencies in Campo's trial testimony to justify the jury's doubts about the credibility of her testimony. She first claimed defendant never went into Lowe's when Campo made her lumber purchase. In light of the surveillance video, she later admitted he was present when Owsley paid for the merchandise. Subsequently, she testified defendant walked through the store and looked at chainsaws, but claimed she could not remember who put the chainsaw in the shopping cart. Campo testified she did not lie in her statement to Theodore; she claimed she did not recall confirming the accuracy of her statement in a phone call with the prosecutor and the police officers just a few hours before she testified. Campo also blamed the identity theft offense on Owsley, who was unavailable for prosecution because she had fled to Oklahoma or Arkansas. Thus, there was a reasonable basis for the jury to disbelieve Campo's trial testimony.
The evidence was sufficient to support defendant's conviction of aiding and abetting in the identity theft.
II. Conspiracy to Commit Identity Theft
A. Sufficiency of the evidence
In the conspiracy count, defendant was charged with conspiring with Owsley and Davis to commit identity theft. Defendant challenges the sufficiency of the evidence to support his conviction on that count. The standard of review is substantial evidence. (Cuevas, supra, 12 Cal.4th at pp. 260-261.)
"A conviction for conspiracy requires proof of four elements: (1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy." (People v. Vu (2006) 143 Cal.App.4th 1009, 1024; §§ 182, subd. (a)(1), 184.) The elements may be proven with circumstantial evidence. (Vu, at pp. 1024-1025.)
To prove an agreement, the People are not required to "`prove that the parties actually came together, mutually discussed their common design, and after reaching a formal agreement set out upon their previously agreed course of conduct.'" (People v. Aday (1964) 226 Cal.App.2d 520, 534 (Aday).) "`[I]t is sufficient that they tacitly came to an understanding to accomplish the act and unlawful design [citations]; and such agreement may be inferred from the acts and conduct of the parties in mutually carrying out a common purpose in violation of the statute.'" (People v. Hobson (1967) 255 Cal.App.2d 557, 562.) "Mere association does not establish a conspiracy, but there must be evidence of some participation or interest in the commission of the offense." (Aday, at p. 533.)
The overt act need not be criminal. (Aday, supra, 226 Cal.App.2d at p. 533.) "It may be committed by one of the conspirators, and when so committed all members of the conspiracy are bound by such act." (Id. at p. 534.) The act of each conspirator in furtherance of their original plan is considered to be the act of all. (Ibid.)
Defendant contends there was insufficient evidence of an agreement to use O'Connell's credit card to make purchases at Lowe's, and an association between Owsley and defendant was not sufficient to prove such an agreement. He asserts there was no evidence he ever saw, possessed, or used the credit card, and his mere presence when Owsley used it did not show knowing participation in a conspiracy. There was evidence showing defendant's participation in the use of the credit card, however. Campo told Theodore defendant offered to use his boss's Lowe's card to purchase lumber for her deck if she paid him back. Defendant then accompanied Campo, Owsley, and Martin to Lowe's where he participated in choosing items to purchase and stood by while Owsley used O'Connell's credit card to pay. He accepted the receipt and assisted in loading and unloading the purchases. He and Owsley took their purchases with them when they left Campo's house. O'Connell testified the Lowe's card was in his name only, he did not know defendant, Owsley, or Davis, and he did not authorize any of them to use his Lowe's card.
From this evidence, the jury could infer defendant knew the credit card did not belong to his boss, as he represented to Campo, knew neither he nor Owsley was authorized to use it, and nonetheless arranged the visit to Lowe's with Campo and Owsley to use the card to obtain both the goods he and Owsley selected and the cash Campo paid him for her lumber. Thus, there was sufficient circumstantial evidence to establish a tacit understanding or agreement between defendant and Owsley to use the card to obtain goods in violation of the identity theft statute.
B. Corpus delicti
Defendant also contends the conspiracy count was not properly established because the corpus delicti of the crime was not established by evidence independent of defendant's extrajudicial statements.
"Distilled to its essence, the corpus delicti rule requires that the prosecution establish the corpus delicti of a crime by evidence independent of the defendant's extrajudicial inculpatory statements before he or she may be held to answer a criminal complaint following a preliminary examination, be convicted of an offense, or hear the statements repeated as evidence in court." (People v. Ochoa (1998) 19 Cal.4th 353, 450.) "`"The corpus delicti of a crime consists of two elements, the fact of the injury or loss or harm, and the existence of a criminal agency as its cause."'" (People v. Zapien (1993) 4 Cal.4th 929, 985-986.) "The purpose of the corpus delicti rule is to assure that `the accused is not admitting to a crime that never occurred.' [Citation.] The amount of independent proof of a crime required for this purpose is quite small; we have described this quantum of evidence as `slight' [citation] or `minimal' [citation]. The People need make only a prima facie showing `"permitting the reasonable inference that a crime was committed."'" (People v. Jones (1998) 17 Cal.4th 279, 301.)
The corpus delicti rule has been extended "to preoffense statements of later intent as well as to postoffense admissions and confessions [citation], but not to a statement that is part of the crime itself." (People v. Carpenter (1997) 15 Cal.4th 312, 394 (Carpenter).) In Carpenter, the defendant came upon a couple hiking in a remote area. (Id. at p. 345.) He held them at gunpoint, told them to do what he said, and told the woman he wanted to rape her. (Ibid.) He subsequently shot both of them. He was convicted of the murder and attempted rape of the woman and the attempted murder of the man. (Id. at p. 344.) The court concluded the defendant's statement that he wanted to rape the woman was not an extrajudicial inculpatory statement that could not be used to prove commission of the crime without first independently establishing the corpus delicti. (Id. at p. 394.) Rather, "[a] statement to the victim of current intent can itself supply the corpus delicti." (Ibid.) The corpus delicti rule was designed to provide independent evidence that the crime occurred. "Its principle reason is to ensure `that the accused is not admitting to a crime that never occurred.'" (Ibid.) The defendant's statement to the victim of his then-current intent "was part of the crime; it could not be a confession to a crime that never occurred. That statement of intent did not have to be independently proved." (Ibid.)
In People v. Chan (2005) 128 Cal.App.4th 408, the defendant was convicted of failing to register as a sex offender, among other crimes. (Id. at p. 413.) The defendant had registered, but had given false addresses. (Id. at pp. 414-415.) He contended there was insufficient evidence to convict him because the corpus delicti rule precluded the prosecution from proving the offense solely by the defendant's own extrajudicial statements, i.e., the forms he filled out with a false address. (Id. at pp. 419-420.) The court rejected that argument: "[T]he corpus delicti rule has no application when the defendant's extrajudicial statements constitute the crime." (Id. at p. 420.) Citing Carpenter, it added that the corpus delicti rule "does not extend to statements made during the commission of the charged crime." (Chan, at p. 420.) "The extrajudicial statements at issue here are defendant's own false written entries on California Department of Justice convicted sex offender registration forms; i.e., the crime itself." (Id. at pp. 420-421.) Accordingly, the corpus delicti rule was inapplicable. (Id. at p. 421.)
In In re I.M. (2005) 125 Cal.App.4th 1195, the defendant was charged with being an accessory after the fact to a murder. He contended the only evidence of certain of his actions after the murder was his own inculpatory statements, which were insufficient to convict without independent proof of the corpus delicti of the crime. (Id. at p. 1203.) The court concluded misleading statements the defendant made to the police satisfied the corpus delicti rule. "It is true that the evidence of defendant's attempt to mislead police is in the form of a statement made by him to the investigating officers. Defendant's statement, however, was not a description of the corpus delicti. As an attempt to mislead, the statement itself was a part of the corpus delicti. Statements that, although extrajudicial, are themselves a part of the conduct of the crime, are not subject to the corpus delicti rule. [Citation.] Defendant's attempt to mislead police, therefore, can be used to establish the corpus delicti of his crime." (Id. at pp. 1203-1204.)
Defendant contends the evidence the People relied on to raise an inference that defendant knew of the stolen credit card and formed an agreement with Owsley to use it to obtain goods was (1) defendant's extrajudicial statement to Campo that he had his boss's credit card and (2) his extrajudicial statement in the Lowe's store urging Campo to select additional items to purchase. He asserts there was no evidence of an agreement between defendant and any alleged coconspirator that would establish the corpus delicti of the conspiracy charge independent of defendant's extrajudicial statements.
Neither of the statements defendant cites was an extrajudicial inculpatory statement subject to the corpus delicti rule. Both were statements made during the commission of the charged crime and were themselves a part of the conduct of the crime. The representation that defendant had his boss's credit card and could purchase lumber for Campo if she would repay him for it was a means of bringing Campo into the transaction, apparently in order to obtain cash, rather than just goods, from the use of the Lowe's card. Defendant's statements urging Campo to select more items to purchase were made in the course of commission of the offenses of conspiracy and identity theft, while the participants in those offenses were selecting items to obtain by using the stolen credit card. Neither of the statements defendant presents as extrajudicial inculpatory statements posed a danger that defendant would be convicted of a crime that never occurred. Thus, the evidence of those statements could be used to prove the corpus delicti of the conspiracy charge without requiring other independent evidence. The evidence was sufficient to support the conviction on the conspiracy count.
Defendant contends that, because the evidence was insufficient to support conviction on the identity theft and conspiracy counts, it was also insufficient to support conviction on the burglary charge. Because we have concluded the evidence on the identity theft and conspiracy counts was sufficient, defendant's argument fails.
IV. Jury Instructions
Defendant's final argument is that the trial court committed prejudicial error by failing to give a jury instruction on the corpus delicti rule sua sponte. He contends the trial court should have instructed the jury with CALCRIM No. 359:
Generally, "[w]henever an accused's extrajudicial statements form part of the prosecution's evidence, the cases have ... required the trial court to instruct sua sponte that a finding of guilt cannot be predicated on the statements alone." (People v. Alvarez (2002) 27 Cal.4th 1161, 1170.) This rule precludes the prosecution from "relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant," and "is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened." (Id. at pp. 1168-1169.) The corpus delicti rule is aimed at postoffense inculpatory statements, confessions, and admissions, as well as preoffense statements of intent, not at a statement that is part of the crime itself. (Carpenter, supra, 15 Cal.4th at p. 394.)
In Carpenter, the defendant contended the trial court should have given the corpus delicti instruction regarding his statement to his victim that he wanted to rape her. (Carpenter, supra, 15 Cal.4th at p. 393.) The court disagreed. It concluded the statement was part of the crime itself and could itself supply the corpus delicti. (Id. at p. 394.) "Defendant's statement to [the victim] of present intent was part of the crime; it could not be a confession to a crime that never occurred. That statement of intent did not have to be independently proved. Accordingly, the court properly refused to give the corpus delicti instruction." (Id. at p. 394, fn. omitted.) Consistent with that decision, the bench notes for CALCRIM No. 359 state: "The corpus delicti cannot be proved by statements made before or after the crime, but can be proved by statements made during the crime."
Defendant again argues that the only evidence tending to show he had personal knowledge of the Lowe's credit card and intended to participate and conspire in its use consisted of the two extrajudicial statements he made—the statement that he had his boss's credit card and could purchase lumber for Campo if she would repay him and his suggestion that Campo should select more items to purchase. As discussed previously, however, these statements were not preoffense statements of intent or postoffense confessions or admissions subject to the corpus delicti rule. Rather, they were statements made during the commission of the offense and were part of the crime itself. As such, they could establish the corpus delicti of the offenses charged, without the requirement of other independent proof. As indicated in Carpenter, in that situation, the trial court was not required to give the corpus delicti instruction. (Carpenter, supra, 15 Cal.4th at p. 394.)
The judgment is affirmed.
LEVY, J. and DETJEN, J., concurs.