Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF25018, Eric L. DuTemple, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
INTRODUCTION
On August 25, 2007, David Stanton (David) shot and killed Jon Flaherty. David’s sister, appellant Shawna Stanton (Shawna), was present during the homicide. She tried to cover up the bloody trails left as David dragged the body, she helped David lift the body into Flaherty’s truck, and she admittedly put the homicide weapon into the truck just before David drove away to dispose of the body and the truck. David’s defense was that Flaherty had a history of violent assaults on friends and family, David shot Flaherty because he was choking Shawna, and David thought he was going to kill her.
We refer to some of the parties by their first names for the sake of clarity; no disrespect is intended. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1076, fn. 3.)
David was charged with first degree murder (Pen. Code, § 187, subd. (a)) and possession of a firearm by a felon (§ 12021, subd. (a)(1)), with firearm and prior prison term enhancements. Shawna was charged with felony accessory after the fact (§ 32) and possession of a firearm by a felon, with one prior prison term enhancement (§ 667.5, subd. (b)).
All further statutory citations are to the Penal Code unless otherwise indicated.
After a joint jury trial, Shawna was convicted as charged, the prior prison term enhancement was found true, and she was sentenced to three years in prison, and ordered to pay restitution for the destruction of Flaherty’s truck and his funeral expenses. David was convicted of possession of a firearm by a felon and the prior prison term enhancement was found true, but the jury was unable to reach a verdict on the murder charge and a mistrial was declared for that count. David was subsequently retried and convicted of second degree murder.
Shawna has filed the instant appeal from their joint trial, and contends the court should have granted her motion for acquittal because the prosecution failed to prove the corpus delicti of the offense of being a felon in possession of a firearm, independent of her pretrial admission that she moved the homicide weapon after the shooting. She also challenges the court’s restitution orders as inappropriate because she was not convicted of the actual homicide, and asserts a concurrent term should have been stayed. David has filed a separate appeal from his retrial and murder conviction, and that appeal is still pending because briefing has not been completed.
We will affirm Shawna’s convictions, and modify the sentence and restitution order.
FACTS
Jon Flaherty and his wife lived in Calaveras County. In April 2007, Flaherty was in custody and David moved in to help around the house. Flaherty was subsequently released and David stayed on as a boarder. Flaherty drove an older model Ford Ranger pickup truck. Flaherty had a red kayak, and kept it was in the back of his truck.
On Saturday, August 25, 2007, David was supposed to meet Flaherty at another location to repair his wife’s car. Flaherty was wanted on an outstanding warrant for child endangerment, and he was going to fix his wife’s car before he turned himself in. David agreed to help with the car but failed to show up at their agreed meeting place. Flaherty was angry, and called his wife 10 or 15 times and asked if she had heard from David or his sister, Shawna, but they had not called.
Flaherty, David, and Shawna were acquainted with Mark Millard, who lived in a house on a 10-acre parcel in an undeveloped area off Wards Ferry Road. Daniel Karraker lived near Millard’s property. Andrew O’Neill lived in a trailer that was parked on Millard’s property. O’Neill testified that he kept a .22 caliber rifle in an unlocked car parked by his trailer. O’Neill testified that visitors to his trailer, including David, frequently used that rifle for target shooting. A picture of a squirrel was carved into the rifle’s stock.
Around 2:00 p.m. on August 25, 2007, David and Shawna arrived at O’Neill’s trailer. They were still hanging around the property when O’Neill left around 2:30 p.m. Karraker stopped by O’Neill’s trailer between 1:00 p.m. and 2:00 p.m. and saw David and Shawna walking from Millard’s house.
In the meantime, Flaherty was driving around in his truck and looking for David. He met Krystal Phillips (Krystal) and Cassidy Coffey (Cassidy), asked for their help, and they agreed. Flaherty continued to drive around and looked for David with the girls.
The homicide
Around 6:00 p.m., Flaherty arrived at Karraker’s house in his truck with Krystal and Cassidy, and asked if he had seen David. Karraker replied that David was at O’Neill’s trailer.
Flaherty drove to O’Neill’s trailer with the girls. A small Beretta hatchback was parked by the trailer. The passenger door was open and Shawna was sitting in the car seat. Krystal testified that Flaherty walked up to Shawna and asked about David. Shawna said she did not know where he was. Flaherty and Shawna argued and exchanged profanities.
The account of the homicide is based on the prosecution testimony of Krystal and Cassidy. On cross-examination, both Krystal and Cassidy admitted they lied to the police and gave several different stories about what happened at O’Neill’s trailer. Krystal and Cassidy were impeached with their prior inconsistent statements and that they agreed what to say about the shooting. Krystal denied they had a “script” about what to say. Krystal was on parole at the time of the homicide. At the time of trial, Krystal and Cassidy were in custody for failing to appear to testify.
Krystal testified Flaherty leaned over Shawna and into the car, Shawna’s voice suddenly changed as if she was choking, and Shawna started screaming that she did not know where David was. Cassidy testified that Flaherty’s hands were around Shawna’s throat and he was choking her. Shawna screamed at Flaherty to stop, and Flaherty kept accusing her of lying. Cassidy never saw Shawna pass out or lose consciousness. Flaherty walked away from the car and told Shawna to get out, but she stayed inside.
Krystal testified Flaherty turned around as if he heard something and raised up his hands. Krystal saw a man with a gun but she did not see the gunman’s face. The gunman walked toward Flaherty and fired his weapon. Flaherty was still on his feet after the first shot, and stumbled and fell down into a small culvert by O’Neill’s trailer. Krystal heard Flaherty say, “‘Help me’”, and then heard more gunshots.
Cassidy testified that she heard a gunshot, looked toward the trailer, and saw David walking out with a gun. David kept walking as he fired the weapon. Cassidy thought she heard four or five shots, and there was a gap between the first shot and the subsequent shots. Flaherty fell into the small culvert, and David said, “‘Oh, my God.’” Krystal heard the gunman say, “‘Help me; help me, Shawna,’” and “‘Help me put him in the truck.’” Shawna replied, “‘I’m fucking trying.’” Cassidy saw David “wrestling” to put something in the back of Flaherty’s pickup truck.
Cassidy saw Shawna go into the small culvert and kick the dirt to cover up something on the ground. Krystal heard the click from the truck’s tailgate, and the gunman told Shawna, “‘Cover him with a blanket.’” Shawna replied, “‘Okay. I am.’” Krystal heard another closing sound from the truck, and David drove away in Flaherty’s truck. Shawna was still kicking around the dirt in the culvert, trying to cover up something.
Krystal testified that as soon as the truck left, Shawna and Cassidy argued about what happened, and Cassidy demanded her car keys. Cassidy dumped out the contents of Shawna’s bag to look for the car keys and several syringes fell out. Cassidy never noticed any marks around Shawna’s neck. They found the keys to another car parked by the trailer but it would not start. Shawna grabbed the syringes and drove away by herself in the Beretta.
Millard was in his house that afternoon when he heard several gunshots fired quickly in succession from the direction of O’Neill’s trailer. There was a pause and then a final shot was fired. Millard called 911 and looked toward O’Neill’s trailer, about 100 feet away. Millard saw David pointing and firing a rifle at someone. Millard then saw David load a body in the back of a pickup truck. Millard testified David drove away in Flaherty’s pickup truck. Shawna followed the truck in a small Beretta hatchback, and both vehicles turned in the same direction on Wards Ferry Road.
The homicide scene
Around 6:00 p.m., Tuolumne County Sheriff’s Deputies arrived at Millard’s property and found Cassidy and Krystal walking along the driveway. A bloody suitcase had fallen out of Flaherty’s truck and was on the roadway. There were blood pools and trails, drag marks, numerous footprints, multiple tire tracks, and Flaherty’s broken wristwatch on the dirt near O’Neill’s trailer. In the small culvert where Flaherty had fallen, it was obvious that the dirt and leaves had recently been moved around to cover up something, and there was blood that had been disturbed in the area next to drag marks. When O’Neill was allowed to return to the property, he noticed the rifle with the distinctive squirrel stock carving was missing.
A dispatch was put out for both the pickup truck and the Beretta. Around 6:15 p.m., the pickup truck was seen on Wards Ferry Road and headed toward the Wards Ferry Bridge, which spanned a canyon and adjacent river. Around 6:45 p.m., several officers responded to the bridge and looked around the area but they did not see the pickup truck. They did not look under the bridge or down the canyon.
Around 7:15 p.m., a crime scene technician saw the Beretta on a country road, about two miles from Millard’s property, and it seemed headed in that direction. The technician called for backup assistance and followed the Beretta until it suddenly pulled over. Shawna was the driver and only occupant. She emerged from the driver’s side and confronted the technician, and demanded to know why she was being followed. The technician asked her to get back into the Beretta and Shawna complied. Shawna was holding and rubbing her neck, and the technician noticed Shawna had red marks and scratches up and down her neck. Shawna said “Jon” had choked her.
California Highway Patrol Officer Dillon responded to Shawna’s location on the road, and noticed the red marks on her neck. Shawna was very upset and emotional, and said Flaherty choked her and she almost passed out. Shawna kept rubbing and scratching her neck. Deputy Thomas Memmer also arrived and spoke to Shawna for about 15 minutes. She was highly upset and nervous. Shawna said she was at O’Neill’s place on Wards Ferry Road around 5:00 p.m., Flaherty arrived about 15 minutes later in his pickup truck, Flaherty was upset and threatened to kill her, and he grabbed her throat and choked her.
Later that same day, Deputy Memmer conducted a videotaped interview with Shawna at his office. They went over the details about what happened at O’Neill’s trailer, and Shawna’s statement was consistent with her earlier report that Flaherty choked her. Shawna was not arrested or taken into custody.
Discovery of the pickup truck
Early on the morning of August 26, 2007, John Kirkland was hitchhiking on Tuolumne Road and Shawna picked him up. They knew each other through mutual friends. Shawna was crying and said she was worried about David, because he left the house and threatened to commit suicide. Shawna said that for years, David threatened to commit suicide by driving off the cliff at Wards Ferry Road, and she was driving there to look for him. She asked Kirkland for help and he agreed.
Kirkland testified Shawna drove to the bridge, they stopped at a few places and looked over the side, but they did not see a truck. She stopped at another location and thought something had gone off the side of the road because the weeds and dirt were disturbed. Kirkland carefully walked down the steep incline, noticed a truck, and called out to Shawna to describe David’s truck. Her description matched the truck that Kirkland found. He climbed back up the incline and Shawna was “spazzing out” and screaming for David, but Kirkland did not notice “very many tears.” They drove to a nearby house and called 911. Shawna was worried, concerned, and “scared to death.”
Kirkland returned to the site and showed the sheriff’s deputies the truck’s location because it could not be seen from the road. There was an obvious line where the dirt and weeds were disturbed, indicating a vehicle had traveled off the road and down the hillside. The search and rescue team had to be lowered below the bridge and down the steep canyon to reach the truck’s location. The point where the pickup truck went off the road and into the canyon was about 100 yards away from where the officers had been standing the previous evening.
There were deceleration marks at the edge of the canyon, at the point the truck went over the cliff, which indicated the tires were locked. The tire marks continued without a break from the deceleration skids and down the steep hillside, which indicated that the truck went over the steep side at a slow speed, and that it did not jump off at a high rate of speed.
The officers found Flaherty’s Ford truck in the canyon. It landed upside down in a dry creek bed, about 300 feet below the road, and about 500 feet from the river. There was extensive damage to the passenger compartment but very little damage to the undercarriage, which indicated the truck was upright and on its wheels when it went over the cliff and down the hill, and flipped over when it the hit the rocks.
There was debris from the truck scattered all the way down the steep hillside. Flaherty’s shoes were found in the canyon. There was blood on the ground, a blood trail along the rocks, and a substantial amount of blood in the truck’s bed; there was no blood in the truck’s cab. The truck’s key was in the ignition’s “on” position and the gear shift was in neutral.
A broken rifle barrel was on the ground next to the truck, and a broken rifle stock was under the truck. The pieces were from a .22 caliber semi-automatic tube-fed Marlin rifle, and a squirrel was engraved on the stock.
Later on the morning of August 26, 2007, Shawna arrived at Karraker’s house and asked if he had seen David or Flaherty. Karraker said no. Karraker noticed red marks and scratches on her throat. Shawna was upset and excited, and said Flaherty grabbed her neck and choked her. Shawna mentioned they found the truck but she was more concerned about David.
David and the kayak
The officers who found Flaherty’s pickup truck noticed reddish-pink plastic scrapings along the rocks in the canyon, consistent with something being dragged across the rocks, but could not identify the source.
Around 10:00 a.m. on August 26, 2007, the sheriff’s boat enforcement team launched watercraft from Mocassin Point Marina, and headed down the river to recover Flaherty’s pickup truck from the base of the canyon, in an area known as “Murderer’s Gulch.” Around 10:15 a.m., a man in a red kayak paddled past them, headed toward the marina. The sheriff’s team had to turn around because they hit a sandbar, and again passed the man paddling in the red kayak.
Around 1:00 p.m., a clerk at the marina’s snack bar noticed David was hanging around the marina, and thought it was strange. Around 3:30 p.m., David was still there, asked the clerk for a cigarette, and said he had been involved in a “kayak incident” earlier that morning.
The snack bar supervisor called the sheriff’s department about a suspicious person. A deputy responded to the marina and asked David what he was doing. David said he was waiting for his girlfriend, and complied with the deputy’s request for his identification. The deputy recognized his name as being wanted in the homicide and arrested David. David had scrapes and abrasions on his arms, legs, and stomach.
The sheriff’s department found the red kayak at the marina. The red plastic scrapings on the canyon rocks by the truck matched the red kayak, and Flaherty’s wife identified the kayak as one that Flaherty used.
Shawna’s statement on August 27, 2007
Deputy Memmer conducted another interview with Shawna on August 27, 2007. Flaherty’s truck had been recovered but his body had not been found. Shawna again said that Flaherty tried to strangle her at O’Neill’s trailer. Flaherty arrived in his pickup truck, confronted Shawna by her car, grabbed her neck, she fell into the front seat of her car and against the console, and he was on top of her. Shawna said Flaherty choked her, she passed out for a few seconds, and she was dazed. Memmer saw the abrasions around her throat which were consistent with her story.
Shawna said Flaherty stopped choking her, but she was still dazed when she heard three to four gunshots. Shawna said she knew that a .22 caliber rifle was on O’Neill’s property because she handled it about three weeks earlier.
As the interview continued, Shawna changed her story and provided more details. Shawna initially said Flaherty had been standing up about five feet from her car then said Flaherty was sitting on the ground when the shots were fired. Shawna initially said she did not know Flaherty’s condition after the gunshots, and then said she saw Flaherty’s body in the back of the pickup truck and she could still hear him breathing.
In her previous statements, Shawna had not said anything about handling the rifle. During this interview, however, Shawna said she put the rifle on the front seat in the cab of the pickup truck. Shawna was arrested after this interview.
It was stipulated that David and Shawna had prior felony convictions. As we will discuss in issue I, post, Shawna contends the court should have granted her motion for acquittal on count IV, possession of a firearm by a felon, because the prosecution failed to prove the corpus delicti of the offense independent of her admission.
Discovery of Flaherty’s body
On August 28, 2007, the officers found Flaherty’s body buried under a pile of rocks in the canyon. Flaherty’s belt and pants had been used to drag the body to the burial site. Flaherty had been shot five times at close range, in the right temple, neck, left chest, right chest, and wrist. The head wound was lethal, and the other wounds (except for the wrist injury) would have been lethal if not treated. Flaherty had a blood/alcohol level of .07 percent, and he tested negative for drugs.
The pathologist believed Flaherty lived for at least several minutes to a half hour after he was shot, and he would have been unconscious when he was shot in the head. His body suffered pre-death scrape marks, consistent with being thrown from the truck and striking the rocks, and postdeath marks from being dragged over the rocks in the canyon.
David’s Defense Evidence
David introduced evidence that Flaherty was a violent person who frequently assaulted his wife and other people who lived at his house. A previous boarder at the house testified to numerous instances where Flaherty beat and assaulted his wife and other people, he frequently carried a gun and threatened to kill his wife, and he boasted about killing other people and disposing of the bodies. The boarder knew David and warned him about Flaherty’s out-of-control and violent behavior, but David moved in anyway because he needed a place to stay. Flaherty’s wife testified that Flaherty frequently beat and choked her, held her at gunpoint, and threatened to kill her. David was present during some of the assaults and tried to help her.
On April 11, 2007, Flaherty’s house was searched based on his probationary status. The officers found a shotgun, an automatic handgun, and a bow and arrow; Flaherty was prohibited from possessing weapons because he was a felon. Mrs. Flaherty testified the police did not find a rifle that he had hidden on the property.
David’s trial testimony
David testified he was warned about Flaherty’s violent behavior but he moved into Flaherty’s house because he could not afford to live anywhere else. After David moved in, he saw Flaherty beat his wife on several occasions. Flaherty attacked David twice, and David saw Flaherty assault and choke another boarder. Flaherty told David that he had “shot people before and he’s not afraid to do it again and that he would do it again no problem.” David was afraid of Flaherty but could not find another place to live.
David knew Flaherty’s weapons were removed from the house during the probation search, but testified Flaherty still kept a rifle in his truck. David saw Flaherty use the rifle to shoot at rafters on the Wards Ferry Bridge about a week before the homicide.
David testified that on August 24, 2007, he was working with Flaherty to repair Flaherty’s car. They finished with the car around 2:00 a.m. on August 25, 2007. Flaherty drove David to Shawna’s house in his pickup truck, and they spent the night there. In the morning, David and Shawna left without telling Flaherty, because David wanted to talk to her about moving out of Flaherty’s house.
Around 1:00 p.m., David and Shawna drove to Millard’s property on Wards Ferry Road and went to O’Neill’s trailer. David retrieved the rifle that O’Neill kept in the unlocked car. He was going to use it for target shooting, but Shawna wanted to go swimming so David left the rifle in an adjoining storage trailer. Around 2:00 p.m., David and Shawna drove to the Wards Ferry Bridge to go swimming. Flaherty kept calling Shawna’s cell phone but she did not answer the calls. David thought Flaherty was mad because they “ditched him” at Shawna’s house and did not tell him where they were going.
Around 6:00 p.m., David and Shawna drove back to O’Neill’s trailer. Just after they arrived, David recognized the distinctive sound of Flaherty’s pickup truck on the driveway. David thought Flaherty was mad at him, and told Shawna to tell Flaherty that he was not there. David went into the storage trailer to hide because he was tired of Flaherty’s anger and abuse.
David looked out the trailer’s window and saw Flaherty jump out of the truck, yell at Shawna, and choke her. Shawna screamed and Flaherty shouted that she was going to die. David testified he decided that he could not watch Shawna die. David grabbed the rifle that he had left in the trailer, walked outside, and yelled at Flaherty to leave Shawna alone. Flaherty stepped away from Shawna and ran towards David. David told him to stop but Flaherty ran straight at him.
David was afraid Flaherty was going to wrestle away the gun and shoot him because “of all the stuff he’s done before and how violent he was.” David held the rifle at waist-level and fired three shots in Flaherty’s direction. Flaherty stopped, turned around, and ran toward the side of his pickup truck where David had recently seen him produce the rifle to shoot at the rafters on the bridge. David was scared that Flaherty would shoot back, and he fired three more shots at Flaherty. Flaherty fell to the ground and rolled into the culvert. David placed the rifle on the ground near Shawna’s location by the Beretta.
David dragged Flaherty to the truck and intended to take him to the hospital. He did not know if Flaherty was still alive and never heard Flaherty ask for help. David asked Shawna to help him lift Flaherty into the truck, but Shawna just stood there and did not do anything. David lifted Flaherty into the truck bed by himself. David noticed his eyes were closed and he did not hear any breathing. David also noticed a kayak was in the truck bed.
As David drove away, he thought it was too late to help Flaherty and he was dead. David drove to the Wards Ferry Bridge and just wanted to die because of what happened. “I just floored [the truck] as fast as that little truck would go” and he drove “off a cliff” and headed into the canyon. As he went over the edge, he had a change of heart and hit the brakes. David stayed in the truck as it went over the cliff and bounced on the rocks. He opened the driver’s door, jumped out, and hit some rocks. The truck went to the bottom of the canyon. David jumped into the river and tried to drown himself. He gave up and returned to the river bank. He dragged the body away from the truck and covered it up with rocks, and stayed in the canyon all night.
David left the canyon the next morning, and paddled out in the kayak that had been in Flaherty’s truck. He passed the officers on the river but did not ask them for help. David stayed at the marina until he was arrested.
Shawna’s defense theory
Shawna did not introduce any evidence or testify. In closing argument, she relied upon David’s testimony and evidence of Flaherty’s violence, and argued she was not guilty of the charged offense of accessory after the fact because the prosecution failed to prove David committed a felony. Shawna cited to the evidence of Flaherty’s violent behavior and argued David killed him in self-defense and it was a justifiable homicide. Shawna also argued she lacked knowledge that David committed a felony, or harbored the intent to aid David to avoid arrest and prosecution, because Flaherty choked her to the point of unconsciousness and she was dazed while she was at the homicide scene. Shawna further argued the prosecution failed to meet to prove she helped David load the body into the truck, kicked around the dirt to cover up the blood, or put the rifle inside the truck.
DISCUSSION
I. Admission of Shawna’s statement about the rifle.
In count IV, Shawna was charged and convicted of possession of a firearm by a felon, based on her admission that she picked up the rifle after David shot Flaherty and put it in the cab of Flaherty’s truck before David drove away. On appeal, Shawna contends the court should have granted her motion for acquittal because the prosecution failed to introduce independent evidence of the corpus delicti of the offense of being a felon in possession of a firearm, aside from her admission.
A. Background.
At the close of the prosecution’s case, Shawna moved for acquittal on count IV, felon in possession of a firearm, and argued there was no evidence of the crime itself aside from her admission during her August 27, 2007, interview that she put the rifle into the truck’s cab before David drove away. The prosecutor replied that as to count IV, the corpus of the offense was that someone possessed a rifle and that person was a felon, and only slight evidence was required for the admission of Shawna’s statement.
The court asked the prosecutor whether there was independent evidence to establish count IV aside from Shawna’s statement. The prosecutor replied that Shawna stipulated she was a felon, there was evidence that a weapon was used in the homicide, Millard saw the gunman holding the weapon at O’Neill’s trailer, and the weapon was found miles away in the canyon. The court was concerned whether such evidence showed that an ex-felon possessed that weapon. The prosecutor replied that identity was not an issue for corpus delicti. The court replied that a person’s status as an ex-felon was an element of the offense. The prosecutor pointed out that both David and Shawna were present when the weapon was at O’Neill’s trailer, they were both ex-felons, the rifle was found elsewhere, and it could be inferred that one of them possessed and moved the rifle.
Defense counsel argued the evidence had to show a specific person possessed the weapon for purposes of corpus delicti of the offense, and the evidence was that a man fired the weapon, a man was at the canyon where the rifle was found, and there was no independent evidence that Shawna possessed the weapon at any time or corroboration for her admission that she moved the gun. The court denied the motion for acquittal.
B. Analysis.
“The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, ‘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, 139-140, fn. 13.)
“In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself--i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) The prosecution must establish the corpus delicti independent from the admissions of the defendant, thus assuring the accused does not admit to a crime which did not occur. (Id. at p. 1169.)
“The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. Citations. There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. Citation. In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. Citations.” (Alvarez, supra, 27 Cal.4th at p. 1171.)
The identity of the perpetrator is not an element of the corpus delicti. (People v. Kraft (2000) 23 Cal.4th 978, 1057.) It is not necessary for the independent evidence to establish the defendant was the perpetrator. (People v. Manson (1977) 71 Cal.App.3d 1, 41; People v. Cullen (1951) 37 Cal.2d 614, 624.) “The identity of the perpetrator of the crime is never an essential element of the corpus delicti. ‘“Proof of the corpus delicti does not require proof of the identity of the perpetrators of the crime, nor proof that the crime was committed by the defendant.”’ [Citations.]” (People v. Manson, supra, 71 Cal.App.3d at p. 41; see also People v. Cobb (1955) 45 Cal.2d 158, 161-162; People v. Armitage (1987) 194 Cal.App.3d 405, 422.) However, identity is an element of every offense and the prosecution has the burden of proving identity beyond a reasonable doubt. (People v. Schmeck (2005) 37 Cal.4th 240, 286-287.)
In count IV, Shawna was charged with being a felon in possession of a firearm in violation of section 12021, subdivision (a)(1). The elements of the offense are conviction of a felony and ownership, possession, custody or control of a firearm. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Such possession may be actual or constructive, as long as it is also intentional. (People v. Spirlin (2000) 81 Cal.App.4th 119, 130; People v. Jeffers, supra, 41 Cal.App.4th at p. 922.)
In the instant case, the trial court properly denied Shawna’s motion for acquittal because prosecution’s evidence established the requisite “slight or minimal evidence” to establish the corpus delicti of being a felon in possession of the rifle used to shoot and kill Flaherty. It was undisputed that O’Neill kept a rifle near his trailer, the rifle had a distinctive carving of a squirrel on the stock, and David and other visitors to the trailer often used the weapon for target shooting. It is also undisputed that Flaherty was shot and killed at O’Neill’s trailer, and four people were present: David, Shawna, Krystal, and Cassidy. David and Shawna stipulated they each had a prior felony conviction. Krystal and Cassidy testified as prosecution witnesses, and they both admitted having suffered felony convictions.
Millard heard the shots from O’Neill’s trailer and saw David firing a rifle. After the shooting, David lifted Flaherty’s body into Flaherty’s truck and drove away. Shawna drove away in her Beretta, and Cassidy and Krystal were still on O’Neill’s property when the deputies arrived. When O’Neill returned to his trailer after the homicide, the rifle was missing. Flaherty’s truck was later found at the bottom of the canyon, and David was seen paddling out of the canyon in Flaherty’s canoe. The rifle with the distinctive squirrel carving was found in pieces under Flaherty’s truck and near the location where his body had been buried.
It is thus undisputed that someone possessed and moved the rifle from O’Neill’s property and into Flaherty’s truck, which is why it was found in the canyon where his body was found, and that four ex-felons were the only people who could have possessed and moved the rifle into the truck in that narrow time frame. Since the prosecution’s evidence established a reasonable inference that a felon possessed that rifle, the court properly denied Shawna’s motion for acquittal. (See, e.g., People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 6.)
Shawna acknowledges that identity is not an element of the corpus delicti, but asserts that proof of the criminal agency should merge with the perpetrator’s identity in this case since an element of the charged offense was the felonious identity of the person who possessed the weapon. Shawna further asserts there is no independent evidence that anyone other than David possessed the rifle and drove the truck into the canyon. As we have explained, however, the identity of the perpetrator is not an element of the corpus delicti, and it is not necessary for the independent evidence to establish the defendant was the perpetrator. (People v. Kraft, supra, 23 Cal.4th at p. 1057; People v. Manson, supra, 71 Cal.App.3d at p. 41; People v. Cullen, supra, 37 Cal.2d at p. 624.) “‘The corpus delicti is established when it is proved that a crime has been committed by someone.’ [Citations.]” (People v. Manson, supra, 71 Cal.App.3d at p. 41, italics added.) The prosecution’s independent evidence, aside from Shawna’s admission, led to the inference that one of the four felons at O’Neill’s trailer possessed the homicide weapon and put it in Flaherty’s truck before David drove away, and thus supplied the requisite slight or minimal evidence that the offense of being a felon in possession of a firearm was committed by someone. The court properly denied Shawna’s motion for acquittal.
In addition, Shawna’s corpus delicti challenge also survives a sufficiency of the evidence attack. As explained in Alvarez, “Because of the adoption of section 28(d) [of article I of the California Constitution] through Proposition 8, there no longer exists a trial objection to the admission in evidence of the defendant’s out-of-court statements on grounds that independent proof of the corpus delicti is lacking. If otherwise admissible, the defendant’s extrajudicial utterances may be introduced in his or her trial without regard to whether the prosecution has already provided, or promises to provide, independent prima facie proof that a criminal act was committed.” (Alvarez, supra, 27 Cal.4th at p. 1180.) However, Alvarez held that Proposition 8 did not eliminate the independent-proof rule insofar as that rule still prohibits conviction where the defendant’s out-of-court statements are the only evidence establishing the crime was committed. (Alvarez, supra, 27 Cal.4th at p. 1180.) “Thus, section 28(d) [of article I of the California Constitution] did not affect the rule to the extent it (1) requires an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements or (2) allows the defendant, on appeal, directly to attack the sufficiency of the prosecution’s independent showing.” (Ibid.) Alvarez reaffirmed “the modicum of necessary independent evidence of the corpus delicti, and thus the jury’s duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be ‘a slight or prima facie showing’ permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant’s statements may be considered to strengthen the case on all issues.” (Id. at p. 1181.)
We note the jury herein was properly instructed with Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 359, as to corpus delicti and independent evidence of a charged crime, as required by Alvarez. (Alvarez, supra, 27 Cal.4th at pp. 1170, 1172, 1180-1181 [CALJIC No. 2.72].) Moreover, the entirety of the record established the slight evidence required to establish the corpus delicti of count IV, to permit the jury to rely on Shawna’s admissions as to that offense. David testified that after he shot Flaherty, he placed the rifle on the ground but he did not know what happened to it. On cross-examination, David conceded that after Flaherty fell into the small culvert, David carried the rifle “until I got to the--to the Beretta and I put it on the ground,” next to the passenger side of the car. Shawna was still sitting in the passenger seat.
“Q. And so you put the rifle down near Shawna?
“A. It could have been, I guess.”
David testified he dragged Flaherty to the truck. Shawna was standing outside of the Beretta at that point. David asked Shawna to help him lift Flaherty into the truck, but Shawna just stood there and did not do anything.
“Q. Now, Shawna picked up the rifle from the side of the Beretta and put it into the pickup truck, correct?
“A. I guess.
“Q. And you asked her to do that?
“A. No.
“Q. She did that on her own?
“A. I guess.
“Q. Well, you didn’t put it--you didn’t put it in the passenger compartment of the pickup, did you?
“A. No.
“Q. You didn’t see Krystal or Cassidy put it in there, did you?
“A. No.
“Q. And you didn’t ask Shawna to put it into the pickup truck?
“A. Correct. I didn’t even realize it was there until I was already down past the bridge.
“Q. Could it have been that you asked her, but you just can’t remember?
“A. No.”
We thus conclude the court properly denied Shawna’s motion for acquittal on count IV, the prosecution’s evidence established the requisite slight or minimal evidence for the corpus delicti of possession of a firearm by a felon, Shawna’s identity was not part of the corpus delicti of that count, and the entirety of the record provides additional evidence to establish the corpus delicti of count IV to permit the jury to rely on her admissions to convict her.
II. The sentence in count III must be stayed.
Shawna was sentenced to an aggregate term of three years, based on the midterm of two years for count IV, felon in possession of a firearm, plus one year for the prior prison term enhancement. The court imposed a concurrent midterm of two years for count III, accessory after the fact.
Shawna contends, and respondent concedes, the court incorrectly imposed a concurrent term for count III, and that term should have been stayed pursuant to section 654. The abstract will be corrected accordingly.
III. The restitution orders.
The probation report in the instant case stated that Flaherty’s wife requested restitution of $800 for the loss of Flaherty’s pickup truck, and Flaherty’s mother requested restitution of $1961.92 for his funeral and burial costs. At the sentencing hearing, the court imposed both restitution orders without comment.
Shawna now contends that neither restitution order was valid because she was only convicted of being an accessory after the fact of the homicide, whereas David was charged with the actual homicide and the family suffered both economic losses only as the result of the homicide. Respondent concedes the court improperly ordered Shawna to pay funeral costs to Flaherty’s mother because she not convicted of the homicide. However, respondent argues the restitution order for the loss of the truck was valid based on her conviction as an accessory after the fact.
We review the trial court’s restitution order for abuse of discretion, and a restitution order that is based on a demonstrable error of law constitutes an abuse of the trial court’s discretion. (People v. Woods (2008) 161 Cal.App.4th 1045, 1048-1049 (Woods).) However, when there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found on appeal. (People v. Prosser (2007) 157 Cal.App.4th 682, 686.)
Crime victims in California have a right to restitution, but the right to recover from any given defendant is not unlimited. (Woods, supra, 161 Cal.App.4th at p. 1049.) Section 1202.4, subdivision (a)(1) states that a “victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (Italics added.) The courts “have interpreted section 1202.4 as limiting restitution awards to those losses arising out of the criminal activity that formed the basis of the conviction.” (Woods, supra, 161 Cal.App.4th at p. 1049, italics added.)
The court has broad discretion to order restitution as a condition of probation, even when the loss was not necessarily caused by the criminal conduct underlying the conviction. (Woods, supra, 161 Cal.App.4th at p. 1050.) In contrast, when a court imposes a prison sentence following trial, section 1202.4 limits the scope of victim restitution to losses caused by the criminal conduct for which the defendant has been convicted. (Woods, supra, 161 Cal.App.4th at p. 1050; People v. Lai (2006) 138 Cal.App.4th 1227, 1247.)
The disputed question is whether the economic loss from the destruction of Flaherty’s truck was caused by Shawna’s criminal conduct of being an accessory after the fact of the homicide. There often will be an evidentiary overlap in the proof that would establish aiding and abetting and being an accessory, but while there may be an evidentiary overlap, the elements of the two types of criminal responsibility are separate and distinct. (People v. Nguyen (1993) 21 Cal.App.4th 518, 536-537 (Nguyen).) An accessory’s criminal liability does not arise out of some manner of responsibility for the commission of the offense. (Id. at p. 537.) Section 32 provides: “Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.”
“A conviction under section 32 requires proof that a principal committed a specified felony, the defendant knew that the principal had committed a felony, the defendant did something to help the principal get away with the crime, and that as a result of this action the defendant intended to help the principal get away with the crime. [Citations.]” (Nguyen, supra, 21 Cal.App.4th at p. 536.) An accessory must lend assistance to the principal after the commission of the offense with the intent of helping him escape capture, trial or punishment. (Ibid.) An accessory to the commission of a felony may be prosecuted, tried, and punished, though the principal may be neither prosecuted nor tried, and though the principal may have been acquitted. (§ 972.)
In contrast, a person is guilty as an aider and abettor if, with the requisite state of mind, that person in any way, directly or indirectly, aided the actual perpetrator by acts or encouraged the perpetrator by words or gestures. (Nguyen, supra, 21 Cal.App.4th at p. 529.) “A person may aid and abet a criminal offense without having agreed to do so prior to the act. [Citations.]” (Id. at p. 531.) “Since ... any person concerned in the commission of a crime, however slight that concern may be, is liable as a principal in the crime [citations], it follows that an aider and abettor will be responsible for a collateral offense if at any time that he does something that directly or indirectly aids or encourages the primary actor in the commission of a crime, it is reasonably foreseeable that a collateral offense may result. In other words, in determining whether a collateral criminal offense was reasonably foreseeable to a participant in a criminal endeavor, consideration is not restricted to the circumstances prevailing prior to or at the commencement of the endeavor, but must include all of the circumstances leading up to the last act by which the participant directly or indirectly aided or encouraged the principal actor in the commission of the crime. [Citation.]” (Id. at p. 532, fn. omitted.)
In Woods, the court addressed the validity of a victim restitution order where the defendant was convicted of being an accessory after the fact of a murder which occurred during a drive-by shooting. The conviction was based on the defendant’s conduct in receiving the gunman’s weapon immediately after the murder. The defendant was sentenced to prison and ordered to pay full restitution to the victim’s family representing their economic losses resulting from the murder. (Woods, supra, 161 Cal.App.4th at pp. 1048-1049.) On appeal, the defendant argued the victim restitution order was unlawful because he was not convicted of murder but only of being an accessory after the fact, there was no nexus between his criminal act of handling the murder weapon and the family’s economic losses, and he was not convicted of being a coconspirator or aider and abettor to the murder. (Id. at p. 1049.)
Woods held the victim restitution order was invalid. It noted that a charge of being an accessory after the fact is based on conduct taking place only after the loss was sustained, and that section 1202.4 limited “the scope of victim restitution to the operative crime that resulted in the loss. [Citation.]” (Woods, supra, 161 Cal.App.4th at p. 1052.) The economic loss suffered by the victim’s family “occurred because of the murder committed by [the gunman]. Defendant was not convicted as a coconspirator or as an aider or abettor to the murder itself. Thus his criminal conduct did not cause the loss for which compensation was sought.” (Id. at p. 1052, fn. omitted.)
In the instant case, Shawna asserts that while she was convicted of being an accessory after the fact, there was no evidence that she had anything to do with David’s destruction of Flaherty’s pickup truck and the restitution order for the loss of the truck must be stricken. Respondent disagrees and points to the testimony of John Kirkland, the hitchhiker Shawna picked up as she drove to the canyon to look for the truck. Respondent suggests that Shawna drove out to the canyon because she knew that David would dispose of the truck there, and it could be inferred that they planned to do so in the moments after the homicide.
Respondent’s argument is based on an extremely broad view of the record, as to whether her conduct as an accessory led to the destruction of Flaherty’s truck. The only two witnesses at the homicide scene--Krystal and Cassidy--described Shawna’s conduct after the homicide which supported her conviction as an accessory after the fact, as she kicked around the dirt to cover up the blood. They also testified about the confusion that ensued after the shooting, as David yelled at Shawna to help him load the body into the pickup truck and cover it up.
It could be argued that since Shawna facilitated David’s escape from the homicide scene, her criminal conduct led to the eventual destruction and loss of Flaherty’s car since it was reasonable to assume that David was going to get rid of the body and the stolen truck. However, there is no evidence that David and Shawna discussed how to dispose of Flaherty’s body and the pickup truck, or that Shawna knew he was going to dump the truck into the canyon, as part of her conduct as an accessory after the fact of the homicide.
As respondent points out, John Kirkland testified Shawna drove to the bridge to look for her brother and the truck, because she claimed her brother had often threatened to commit suicide by driving into the canyon. Kirkland testified that Shawna “mentioned that people had come out there and, you know, pushed stolen cars down there,” and she “noticed a place on the side of the road where it looked like something had gone off recently. The weeds were pushed down and the dirt was disturbed.” Kirkland’s testimony raises the inference that Shawna knew where David would dump Flaherty’s truck and his body. She drove directly out to the bridge, she seemed very familiar with the area as a location to dump stolen cars, and she claimed David always threatened to commit suicide by driving into the canyon at that spot.
The question herein, however, is whether the economic loss from the destruction of the truck was caused by the criminal conduct for which Shawna sustained her conviction as an accessory after the fact of the homicide. (Woods, supra, 161 Cal.App.4th at p. 1050.) Shawna’s belief that David would likely dump a stolen vehicle and a body in an area known as “Murderer’s Gulch” is not the same as the act itself being caused by her criminal conduct of being an accessory after the fact. As in Woods, Shawna was not convicted of being a coconspirator or an aider and abettor to the homicide, where she would have been liable for a broader range of economic losses.
We thus conclude the trial court should not have imposed both victim restitution orders.
DISPOSITION
The judgment is modified to stay the concurrent sentence imposed for count III pursuant to Penal Code section 654, and the victim restitution orders for $800 and $1961.92 are stricken. As so modified, the judgment is affirmed. The trial court is directed to send an amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: VARTABEDIAN, Acting P.J., WISEMAN, J.