Filed 4/21/15 P. v. Baltas CA4/1

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

EVAN K. BALTSAS,

Defendant and Appellant.

 D066348

 (Super. Ct. No. SCD247927)

APPEAL from a judgment of the Superior Court of San Diego County, Michael T. 

Smyth, Judge. Affirmed as modified with directions.

Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Ryan H. 

Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
2

A jury convicted Evan K. Baltsas of burglary of an occupied dwelling (Pen.

Code,1 §§ 459 & 460) and one count of grand theft (§ 487, subd. (a)). The court found 

true two serious felony prior convictions (§ 667, subd. (a)) and one violent felony prison 

(strike) prior conviction (§ 667, subds. (b)-(i)). Baltsas was sentenced to a total term of 

12 years in prison.2

Baltsas appeals contending the trial court erred in failing to give accomplice 

instructions, on the court's own motion. Baltsas also contends the court erred in failing to 

stay the sentence on grand theft (count 2) pursuant to section 654.

Regarding count 2, the People properly concede the theft in this case was integral 

to the burglary and the sentence must be stayed pursuant to section 654. We will direct 

the trial court to stay the sentence on count 2 and to recalculate the total sentence 

accordingly. 

With regard to the claimed error in failing to given unrequested accomplice 

instructions, we agree with the People that even if such instructions were appropriate, 

there is no conceivable prejudice on this record. Accordingly, any instructional error is 

harmless. 

 

1 All further statutory references are to the Penal Code unless otherwise specified.

2 At sentencing the court stayed the three-year sentence for the violent felony prison 

prior (§ 667.5, subd. (a)). The proper remedy was to strike the enhancement. On remand 

we will direct the court to strike the prison prior. 
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STATEMENT OF FACTS

On April 14, 2013, Kimberly Nelson was a resident at the Mason, an affordable 

housing facility. On that day Nelson encountered Baltsas and his girlfriend. She let them 

into the building. As evidence from the building's surveillance video revealed, Baltsas 

stole a television and two computers from the common area of the building that night. 

Nelson testified that the visit by Baltsas was a surprise. She denied using 

methamphetamine that day and denied giving Baltsas permission to take property from 

the building. Nelson testified she suffered from heart problems and that it would have 

been impossible for her to have removed the items from the common area. 

Defense

Baltsas testified that he was a drug dealer at the time and that he regularly dealt 

drugs with Nelson. He said he had been to her apartment many times and that he went to 

her apartment that night to collect $400 that Nelson owed him for past drug purchases. 

According to Baltsas, when he arrived at Nelson's residence the television and two 

computers were already in bags in her apartment. He did not care who owned the items 

and took them from Nelson as payment for her drug debt. Baltsas acknowledged he 

knew of Nelson's circulation problems and her difficulty in walking. 

DISCUSSION

Although defense counsel did not contend that Nelson was an accomplice, and did 

not request any instructions on that issue, Baltsas now contends the evidence supports a 

finding she was an accomplice and the failure to properly instruct the jury denied him due 

process. He contends that given his testimony that Nelson had already taken the property 
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from the common area before he arrived, she was potentially an accomplice under section 

1111 and the jury should have been instructed to distrust her testimony and that he could 

not be convicted unless her testimony was corroborated.

While we are somewhat doubtful that the defendant's testimony in this case would 

justify accomplice instructions, we are satisfied that any error was harmless by any 

standard. As we will discuss, there is abundant corroboration to connect Baltsas with the 

crime, independently of Nelson's testimony. Further, under the instructions actually 

given, the jury was clearly aware that Nelson's credibility was at issue. Accordingly, we 

will reject this challenge to the convictions.

A. Legal Principles

A trial court has a sua sponte duty to instruct a jury to distrust accomplice 

testimony if "the evidence was sufficient to support an accomplice finding." (People v.

Tobias (2001) 25 Cal.4th 327, 330.) Whether a person is an accomplice is ordinarily a 

question for a jury to decide. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.)

A person is an accomplice if the person testifying would be liable for the identical 

offense charged against the defendant. In other words, the person must be chargeable as 

a principal in the identical crime charged against the defendant. (People v. Horton (1995) 

11 Cal.4th 1068, 1113-1114.) A defendant may not be convicted of an offense based 

upon the testimony of an accomplice unless that testimony is corroborated. (§ 1111.)

Although trial courts have a duty to instruct on accomplice testimony in 

appropriate cases, failure to do so may be harmless where the testimony of the 

accomplice is sufficiently corroborated. (People v. Boyer (2006) 38 Cal.4th 412, 467.)
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Assuming, arguendo, that there was enough evidence in this case to justify an 

accomplice instruction, we will go directly to the question of whether any such error was 

harmless.

B. Analysis

Nelson testified she did not give Baltsas permission to take the items from the 

apartment's common area. Similarly, the apartment manager testified nobody had 

permission to remove those items. Baltsas testified he removed the stolen items from the 

building. He could hardly have testified differently since he was captured on surveillance 

video removing the stolen merchandise from the building.

The corroboration required to support a conviction based in part on accomplice 

testimony does not have to be shown by proof beyond a reasonable doubt. It need only 

be slight corroboration that tends to independently connect the defendant to the 

commission of the charged offense. (People v. Tewksbury (1976) 15 Cal.3d 953, 968-

969; People v. Boyer, supra, 38 Cal.4th at p. 467.)

There can be no doubt that Nelson's testimony, even if she was an accomplice, is 

more than adequately corroborated. Indeed Baltsas's own testimony, which is the only 

thing in the record that could possibly make Nelson an accomplice, admitted he took the 

property "not caring" if it was stolen. Thus we conclude any failure to instruct on 

accomplice testimony was harmless on the issue of corroboration.

The second purpose of the instructions on accomplice testimony would be to 

advise the jury to view the witness's testimony with suspicion. However, in this case the 

jury was clearly aware that Nelson's credibility was at issue. Not only was the jury 
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instructed on assessing credibility, but defense counsel plainly attacked her testimony as 

being untruthful. In addition the jury was instructed on Baltsas's "claim of right" defense. 

The jury was told that if they found Baltsas reasonably believed that Nelson gave him 

permission to take the property, then they must find he did not have the intent to steal. 

They were told that if the jury had a reasonable doubt whether Baltsas had the intent to 

steal, they must acquit him.

Nelson did not testify that she saw Baltsas take the property from the common 

area. She only testified she did not take it and did not give Baltsas permission to take it. 

The jury was aware that Nelson had physical disabilities that would make it difficult, if 

not impossible, for her to take the items from the common area and take them to her 

apartment in order to deliver them to Baltsas.

The jury rejected Baltsas's story about obtaining the property from Nelson in 

payment of a debt. Plainly they rejected his version of the events. Defense counsel never 

contended Nelson was an accomplice, and the defense position was that Nelson 

independently took the items and that all Baltsas did was to accept them without caring 

who owned them. That position is inconsistent with the appellate claim that Nelson was 

an accomplice. In any event, after a full review of the record we are satisfied that any 

possible error was harmless by any standard. Baltsas was not prejudiced and not denied 

due process.

DISPOSITION

The trial court is ordered to modify the judgment by staying the sentence on 

count 2 pursuant to section 654. The court is also directed to strike the prison prior 
7

(§ 667.5, subd. (a)). The court is directed to amend the abstract of judgment to reflect the 

changes and to forward an amended abstract to the Department of Corrections and 

Rehabilitation. In all other respects the judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.