P. v. Solorzano





















Filed 1/4/13 P. v.
Solorzano CA1/5













NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



FIRST
APPELLATE DISTRICT



DIVISION
FIVE






>

THE PEOPLE, Plaintiff and Respondent, v. MARK PAUL SOLORZANO, Defendant and Appellant.

A134033 (>Solano> >County> Super. >Ct.> No. FCR285124)

Defendant and appellant Mark Paul
Solorzano (appellant) contends his conviction by jury for willfully and href="http://www.fearnotlaw.com/">unlawfully delaying peace officers in the
performance of their duties is not supported by sufficient evidence. We agree and reverse the conviction on that
count.

PROCEDURAL
Background

In September 2011, the District
Attorney for Solano County filed an information charging appellant with href="http://www.mcmillanlaw.com/">possession of a firearm by a felon
(former Pen. Code, § 12021, subd. (a)(1))href="#_ftn1" name="_ftnref1" title="">[1] (count 1), unlawfully carrying a concealed firearm (former § 12025,
subd. (a)(2))href="#_ftn2"
name="_ftnref2" title="">[2] (count 2), and misdemeanor willfully and unlawfully delaying peace
officers attempting to discharge their duties (§ 148, subd. (a)(1)) (count
3). The information further alleged, as
to count 2, that appellant was prohibited from possessing a firearm (former
§ 12025, subd. (b)(4)).

In October 2011, the jury found
appellant guilty as charged and found the special allegation true. In December, the trial court imposed a prison
sentence of three years eight months,href="#_ftn3" name="_ftnref3" title="">[3] but stayed the sentence, placing appellant on probation for three
years with the condition, among others, that he serve 180 days in county
jail. This appeal followed.

Factual
Background

On May 25, 2011, at approximately 7:00 p.m., Vacaville Police
Officers John Uldall and Michael Strachan, were on patrol in uniform and in a
marked police car when they entered a “Park & Ride facility” in Vacaville. The Park & Ride facility is an area where
commuters park their cars to pick up a carpool or bus. When they entered the facility, the officers
saw appellant standing on the sidewalk near the entrance. He was wearing a backpack.

The officers drove up next to
appellant, and Strachan asked him whether he had seen a red Honda speed
by. Appellant said he had seen the
Honda. Strachan then asked appellant for
his name and asked him if he was on probation.
Appellant responded with his name and stated he was not on
probation. He also refused the officers’
request to consent to a search. The
officers broke contact and drove away.

Immediately thereafter, Strachan
called the police dispatcher and ran a records check on appellant. The dispatcher advised the officer that
appellant was on probation with a search condition.href="#_ftn4" name="_ftnref4" title="">[4] Upon hearing this
information, the officers drove back and reinitiated contact with
appellant. Uldall testified he would not
have left appellant the first time had appellant stated he was on
probation. The officers got out of their
car and appellant obeyed the officers’ order that he approach them. One of the officers told appellant that he
had lied to them and they were going to search him. Uldall found a .22-caliber handgun in the
backpack. The gun was not loaded.

The parties stipulated appellant had
a prior felony conviction for grand theft that preceded the date of the charged
offenses; the date of the prior conviction was not specified.

Discussion

Appellant contends there is
insufficient evidence to support the jury’s finding on count 3 that he
willfully and unlawfully delayed Uldall and Strachan as they attempted to
discharge their official duties. We
agree.

“ ‘In reviewing a challenge to
the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we “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.” [Citations.] We presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard
of review applies to cases in which the prosecution relies primarily on
circumstantial evidence and to special circumstance allegations.
[Citation.] “[I]f the circumstances
reasonably justify the jury’s findings, the judgment may not be reversed simply
because the circumstances might also reasonably be reconciled with a contrary
finding.” [Citation.] We do not reweigh evidence or reevaluate a
witness’s credibility.’
[Citation.]” (>People v. >Houston (2012) 54 Cal.4th 1186, 1215 (>Houston).)

As the trial court instructed the
jury, a conviction under section 148 required the prosecution to establish
that, on May 25, 2011, (1) Uldall and Strachan were peace officers lawfully
performing or attempting to perform their duties; (2) appellant willfully
delayed the officers in the performance or attempted performance of those
duties; and (3) when appellant acted, he knew, or reasonably should have
known, that Uldall and Strachan were peace officers performing or attempting to
perform their duties. (See CALCRIM No.
2656; see also Yount v. City of
Sacramento (2008) 43 Cal.4th 885, 895.)
The court further instructed the jury, “Someone commits an act willfully
when he or she does it willingly or on purpose.
It is not required that he or she intend to break the law, hurt someone
else, or gain any advantage.” The court
informed the jury, “The People allege that [appellant] delayed . . .
Uldall and Strachan by telling them he was not on probation.”

Appellant contends there is href="http://www.fearnotlaw.com/">insufficient evidence that he was on
probation on May 25, 2011; that he knew he was on probation on May 25, 2011;
and that he interfered with a criminal investigation. Because we agree there is insufficient
evidence appellant was on probation, we need not and do not reach his other two
contentions.

On appeal, the People admit with
respect to count 3, the section 148, subdivision (a)(1)) charge, “Given that
. . . the trial court instructed the jury that the prosecution was
proceeding on the theory that appellant willfully delayed . . .
Uldall and Strachan in the performance or attempted performance of their duties
by telling them he was not on probation . . . , a conviction
required evidence that appellant was indeed on probation.” It is undisputed that, when the officers
testified they learned from dispatch appellant was on probation, that evidence
was only admitted for the limited purpose of explaining the officers’
subsequent conduct, not for the truth of the statement that appellant was on
probation.href="#_ftn5" name="_ftnref5"
title="">[5] Nevertheless, the People argue there is
sufficient evidence appellant was on probation because the parties stipulated
appellant had a prior conviction for grand theft. The People reason, “Since appellant was
obviously not in custody on that conviction on May 25, the jury could have
concluded, as a matter of common knowledge, that he was either on parole,
probation, or neither, having done his time.
That the jury inferred from the conviction that he was on probation was
reasonable, especially given the officers’ action in quickly returning to make
contact with him after speaking with dispatch. . . . In light of . . . Uldall’s
testimony that there was initially no reason to detain appellant or probable
cause to search him, this was the only conclusion the jury could draw from the
officers’ actions.”

We disagree. Because the stipulation did not indicate >when appellant was convicted of grand
theft, the bare fact that he had that prior conviction left no solid basis for
the jury to conclude appellant was on probation for that offense on May 25,
2011. As the People acknowledge, it was
equally likely appellant was on parole or appellant was no longer subject to
law enforcement supervision. The jury
was instructed in this case that if it was able to “draw two or more reasonable
conclusions from the circumstantial evidence, and one of those reasonable
conclusions points to innocence and another to guilt, [it] must accept the one
that points to innocence.” (See CALCRIM
No. 224; People v. Towler (1982) 31
Cal.3d 105, 118 (Towler).) That does not mean it would be proper for
this court to interfere with the verdict simply because we “believe that the
circumstantial evidence might be reasonably reconciled with [appellant’s]
innocence.” (Towler, at p. 118; see also Houston,
supra, 54 Cal.4th at p. 1215.) Instead, “the relevant inquiry on appeal
remains whether any reasonable trier
of fact could have found [appellant] guilty beyond a reasonable doubt.” (Towler,
at p. 118; accord, In re Ryan N.
(2001) 92 Cal.App.4th 1359, 1372.) The
answer to that question is no. Absent
other evidence, any inference that appellant’s prior conviction meant he was on
probation “would go beyond deduction to speculation.” (People
v. Pearson (2012) 53 Cal.4th 306, 319.)
“The evidence leaves it entirely possible”
appellant was on probation for the prior offense, “but does not support [such a
finding] beyond a reasonable doubt.” (>Ibid.)

Of course, the jury was informed
that dispatch told the officers appellant was on probation, but that evidence
was not admitted for the truth of the information about appellant’s
status. On appeal, the People appear to
suggest that the bare fact the officers reinitiated contact after speaking with
dispatch provided sufficient evidence from which the jury could infer appellant
was on probation. But, although the fact
that the officers quickly returned to reinitiate contact with appellant after
calling dispatch provided a basis for the jury to infer the officers obtained
some relevant information from dispatch, it did not provide a solid basis for
the jury to conclude the information the officers received was that appellant
was on probation. It was also possible
the officers found out appellant was on parole
and subject to a search condition, or there was an outstanding arrest warrant
for him. On the other hand, the
testimony the officers told appellant he had lied might support an inference the officers found out appellant
was on probation. However, to conclude
there was sufficient evidence appellant was on probation because of an indirect
reference to the information conveyed by dispatch would require us to assume
the information conveyed by dispatch was true.
In that event, appellant’s conviction effectively would be based on
inadmissible hearsay, instead of evidence that is reasonable, credible, and of
solid value. (See Houston, supra, 54
Cal.4th at p. 1215.) As explained in >In re Lucero L. (2000) 22 Cal.4th 1227,
1244-1245, “As this court has long recognized, ‘ “[m]ere uncorroborated
hearsay or rumor does not constitute substantial evidence.” . . .’ [Citations.]
Except in those instances recognized by statute where the reliability of
hearsay is established, ‘hearsay evidence alone “is insufficient to satisfy the
requirement of due process of law, and mere uncorroborated hearsay does not
constitute substantial evidence.
[Citation.]” ’ [Citations.]”

In all likelihood, it would have
been a simple matter for the People to prove with competent evidence that
appellant was on probation on May 25, 2011.
The People failed to do so, and the evidence in the record did not
provide a nonspeculative basis for the jury to find that fact to be true beyond
a reasonable doubt. Appellant’s
conviction on count 3 must be reversed.

Disposition

Appellant’s conviction on count 3 is
reversed. The matter is remanded to the
trial court for resentencing. The
judgment is otherwise affirmed.









SIMONS,
J.







We concur.









JONES, P.J.









NEEDHAM, J.