1 Filed 6/27/13 P. v. Townsend CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo)

----

THE PEOPLE, Plaintiff and Respondent,

v.
TOBIAH ANDREW TOWNSEND, Defendant and Appellant. C071450 (Super. Ct. No. CR120322)

Convicted of two misdemeanor offenses af ter jury trial, defendant appeals. He contends that insufficient ev idence supports his conviction for concealing evidence. The People disagree, and also argue that defe ndant’s appeal should be transferred to the appellate division of the Superi or Court, a transfer which de fendant opposes. As we will explain, we agree with defend ant on both points. We decl ine to transfer the case, and shall modify the judgment to reflect defendant’s conviction for attempted concealing evidence. We affirm th e judgment as modified.2 FACTUAL AND PROCED URAL BACKGROUND Evidence at Trial Davis Police Officer Peter Faeth was in un iform and on (marked) bicycle patrol at around 2:35 p.m. on January 26, 2012, wh en he saw defendant run a stop sign on a bicycle. Faeth identified himself and ordere d defendant to stop. Defendant stopped and lifted his bicycle to the sidewalk while remaining astride the bike. Faeth asked defendant for identifica tion; defendant had none. As Faeth dismounted his bicycle, defendant rode away quickly, accelerating to 15 to 20 miles per hour. Faeth pursued defendant and ordered hi m to stop. Defendant continued to flee, running a red light in heavy traffi c and leaving the bicycle path. Faeth radioed a request for assistance to nearby motorcycle officer Jesse Dacanay. Dacanay activated his light an d siren and ordered defendant to stop; defend ant continued riding without slowing down. Defendant rode fro m the street to the si dewalk, and then to the bicycle path, where he reached down in to his sock, removed an eyeglass case, and threw it about 30 feet over a fence into a gra ssy area. The case landed into a drainage area separated from the bike path by a six-foot chain link fence The pursuit continued until Da canay drove his motorcycle in front of defendant and forced him to stop. Da canay detained and handcuffed defendant, who had traveled about a mile and a half from the initial point of contact by Faeth. When Faeth arrived, Dacanay walked ba ck about 50 yard s, climbed the fence, a nd found the eyeglass case, which contained a hypodermic need le with methamphetamine in it Charges, Verdict, and Sentence The People charged defendant Tobiah Andrew Townsend by complaint filed on January 30, 2012 with two fe lonies--transportation of metham phetamine with a prior drug conviction (Health & Saf. Code , §§ 11379, subd. (a), 11370. 2, subd. (c)) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a))--and two misdemeanors--3 resisting an officer (Pen. Code, 1 § 148, subd. (a)(1)), and destroying or concealing evidence (§ 135). On February 14, 2012, the trial court held defendant to answer on all four charges. One week la ter, the People filed an info rmation bearing the same case number and containing the same charges; th ey subsequently moved to dismiss the two felony charges for insufficient evidence. On the eve of tr ial, the People successfully moved to add a misdemeanor possession of drug paraphernalia charge (Health & Saf. Code, § 11364.1, subd. (a)). They accomplished this addition by filing what purported to be a “first amended complaint,” bearing the sa me case number as the information. They moved to dismiss that charge after the completion of th eir case in chief. The jury found defendant guilty of the only two remaining charges, both misdemeanors--resisting an officer and concea ling evidence. Finding defendant violated his probation in two unrelated cases based on the evidence presented at trial, the trial court sentenced defendant to 30 days in county jail for resisting an officer and a consecutive 10 days for concealin g evidence, to be served concurrently with the felony sentences imposed for the unrelated cases. DISCUSSION
I Jurisdiction The People contend defenda nt’s appeal should be tran sferred to the appellate division of the Superior Court because the final charging document, the “first amended complaint,” contained only misdemeanor char ges. Defendant disagrees, and argues in essence that the People could not convert their felony case to a misdemeanor case by

1 Further undesignated statutory re ferences are to the Penal Code.4 merely filing a “first amended complaint” af ter the original felony complaint had been superseded by felony information. This court has jurisdiction over appealab le orders from “felony case[s].” (§ 1235, subd. (b); see Cal. Const., ar t. VI, § 11.) The People argu e the first amended complaint, which charged only misdemeanor counts, cont rols our characterization of defendant’s case as felony or misdemeanor. We disagree. First and foremost, it is clear that de fendant’s conviction on misdemeanor charges only is not a factor in our analys is. Because defe ndant was initially charged with felonies, we have jurisdiction over his appeal even though he was ultimately convicted only of misdemeanors. ( People v. Nickerson (2005) 128 Cal.App.4th 33, 36 ( Nickerson ); § 691, subds. (f), (g).) “ ‘[F]elony case’ means any criminal ac tion in which a felony is charged, regardless of the outcome . A felony is ‘charged’ when an information or indictment accusing the defendant of a fel ony is filed or a complaint accusing the defendant of a felony is certified to the superior court un der Penal Code section 859a. A felony case includes an action in which the defendant is charged with: [¶] (A) A felony and a misdemeanor or infraction, but is convicted of only the misdemeanor or infraction[.]” (Cal. Rules of Court, rule 8.304 (a)(2), emphasis added; see also § 691, subd. (f) [“‘Felony case’ means a criminal action in which a felony is charged and includes a criminal action in which a misdemeanor or infraction is charged in conjunction with a felony”]; Nickerson, supra , 128 Cal.App.4th at p. 38 [“[A ] defendant is not “charged with a felony” within the meaning of section 691 until an informati on or indictment is filed or a complaint is certified to the superior court pursuant to section 859a”].) As the above authorities make clear, when, as here, a felo ny information is filed, we have jurisdiction over any appeal arisi ng from that case. Because defendant was charged with two felonies in the original information, his case was and remains a felony case and we have jurisdiction over the appeal. The filing of the information, under the5 same case number, effectively superseded the complaint. Here, we interpret the “first amended complaint” as a miscaptioned first amended information, given the specific and somewhat convoluted procedur al history of this case.
II Sufficiency of the Evidence Defendant contends there is insufficien t evidence to support his conviction for concealing evidence. We agree. “ ‘To determine sufficiency of the evid ence, we must inquire whether a rational trier of fact could find defend ant guilty beyond a reasonable d oubt. In this process we must view the evidence in the light most fa vorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact coul d reasonably deduce from the evidence. To be sufficien t, evidence of each of the e ssential elements of the crime must be substantial and we must resolve the que stion of sufficiency in light of the record as a whole.’ [Citation.]” ( People v. Carpenter (1997) 15 Cal.4th 312, 387.) Section 135 provides: “E very person who, knowing th at any book, paper, record, instrument in writing, or other matter or thin g, is about to be produced in evidence upon any trial, inquiry, or investig ation whatever authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from be ing produced, is guilty of a misdemeanor.” The lead case defining the crime of concealing or destroying evidence is People v. Hill (1997) 58 Cal.App.4th 1078 ( Hill ). Although both parties argue Hill compels the result they seek, defendant has the better argum ent. Hill and his codefendants purchased items from several stores using co unterfeit traveler’s checks. ( Hill, supra , 58 Cal.App.4th at pp. 1081-1082 .) Pursued by the police afte r driving away from a mall, one of the defendants threw a wad of paper from the car. ( Hill, supra, at p. 1082.) Police recovered the wad, which turn ed out to be torn pieces of traveler’s checks. ( Ibid. ) Hill6 was convicted of five counts of forging chec ks and one count of de stroying or concealing evidence. ( Id. at p. 1080.) In determining whether substantial evidence suppo rted the destroying or concealing evidence conviction, the Hill court found that the purpose of section 135 was “to prevent the obstruction of justice. [Citation.]” ( Hill, supra , 58 Cal.App.4th at p. 1089.) The appellate court first looked to the plain meaning of the term “destroy”: “to ruin something completely and thereby render it beyond restora tion or use. [Citation.]” ( Ibid. ) For the purposes of proving a violation of section 135, “if one destroys evidence, it necessarily becomes unavailable and cannot be produced. Conversely , if, despite one’s efforts, the evidence is or ca n be restored and used, then, by definition, it has not been destroyed; rather, such efforts constitute an at tempt: a direct, but ineffectual, act toward the commission of a crime. [Citation.]” ( Ibid. ) Since the traveler’s checks were not destroyed, the defendant in Hill could not be convicted under this theory. ( Id. at p. 1090.) The Hill court next addressed whether th e defendant’s conviction could be sustained under a concealing evidence theory. ( Hill, supra , 58 Cal.App.4th at p. 1090.) The court reasoned that since “[t]he word ‘conceal’ simply means to hide or cover something from view,” secti on 135 does not require “tha t a defendant must render evidence permanently uns een, or as defendant submits, una vailable. Rather successful concealment of evidence from a particul ar investigation is sufficient.” ( Ibid .) Therefore, in addition to permanently co ncealing evidence, “any act of concealment that interferes with, impedes, frustrates, or unnecessari ly prolongs a lawful search” constitutes obstruction of justice. ( Ibid .) But “a thief does not interfere with, im pede, frustrate, or prolong a lawful investigation, for example, where a thief is interrupted while concealing evidence or where the police watch him conceal it, he ha s not successfully hidden the evidence or appreciably affected an investigation and there by obstructed justice. He has merely tried7 to do so. Thus, his conduct constitutes an at tempt to violate the statute by concealment.” ( Hill, supra , 58 Cal.App.4th at p. 1090.) The appella te court reasoned that by throwing the checks from his car in full view of the police, Hill “d id not succeed in hiding or covering this evidence; nor did he apprecia bly affect the investigation of suspected counterfeiting. An offi cer simply walked over to the discarded evidence and collected it.” ( Hill, supra, at p. 1091.) This constituted no more than an attempt to conceal evidence. ( Ibid .) Here, as in Hill , defendant attempted to discard po tential evidence of a crime in full view of the pursuing officer. The office r saw where defendant threw it, and was able to retrieve it with minimal effo rt. Since the evidence was never successfully hidden from the police, even for a moment , we conclude there is insu fficient evidence to support defendant’s conviction fo r concealing evidence. Section 1260 authorizes “a ppellate courts to modify a judgment to reflect a conviction of a lesser, necessa rily included offense when the state of the evidence warrants it.” ( People v. Matian (1995) 35 Cal.App.4th 480, 488; 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crim inal Appeal, § 194, pp. 478-480 [citing cases].) Attempted conceali ng evidence is a lesser incl uded offense of concealing evidence. ( Hill, supra , 58 Cal.App.4th at p. 1091, fn. 10.) “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectua l act done toward its commission.” (§ 21a.) As we noted ante , the crime of concealing evidence re quires intent to prevent the item in question from being produced. Defendant does not dispute th e jury’s finding of this element of the offense, which is supported by overwhelming evidence. Since the act of throwing the evidence over a fenc e in full view of the police was a “direct but ineffectual act” toward committing the crime of conceali ng evidence, the eviden ce shows defendant8 committed the lesser offense of attempted c oncealing evidence. We shall modify the judgment accordingly. 2
DISPOSITION The judgment is modified to strike de fendant’s conviction for concealing evidence and instead reflect his conviction for attemp ted concealing evidence. As modified, the judgment is affirmed.

DUARTE , J.

We concur:

HULL , Acting P. J.

ROBIE , J.

2 In the interest of judicial economy, and since the outcome appears compelled by law, we address this issue and take this action w ithout having requested su pplemental briefing, subject to any party’s right to petition for rehearing. (Gov. Code, § 68081.)