The opinion of the court was delivered by: Nicholson , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Outa Saechao of petty theft with a prior (Pen. Code, § 666; undesignated section references are to this code) and fraudulent use of an access card, a misdemeanor (§ 484g). In bifurcated proceedings, the trial court found a strike prior and a prior prison term allegation to be true.
Sentenced to state prison, defendant appeals. He contends (1) the trial court erroneously denied his motion for an acquittal at the close of the prosecution's case, (2) the trial court prejudicially erred in failing to instruct on mere presence and aiding and abetting, and (3) counsel rendered ineffective assistance in failing to request the instructions on mere presence and aiding and abetting. We affirm the judgment.
On June 20, 2008, Mary Meisner inserted her debit card into the automated teller machine (ATM) at Washington Mutual Bank in Redding. After typing in her access code, she made a deposit and then withdrew $100. Two men, later identified as defendant and Kao Saechao, were standing behind Meisner during her transactions. Meisner walked out the bank's door, failing to retrieve her debit card which was still in the ATM. She did not recall pushing the "no" button when prompted on the screen with the question whether she wanted another transaction. Nor did she recall that her card had been ejected. Defendant and Kao immediately walked up to the ATM. Defendant looked at the screen and used the ATM keypad. After withdrawing $300 from Meisner's account, defendant and Kao left the bank. Meisner did not know defendant or Kao and did not give either permission to withdraw money from her account. Kao, who had an account at the bank, did not use his debit card that day to withdraw money from his account.
When Meisner balanced her checkbook, she discovered the $300 withdrawal posted on her account on June 20, realizing that she had left her debit card in the ATM. She reported to the bank and law enforcement that there had been an unauthorized use of her debit card. The bank canceled her debit card and advised that her card had also been used for a $46.01 transaction at a Circle K Store which Meisner had not done.
The police obtained the bank's ATM surveillance photographs and officers identified defendant and Kao. The bank photographs were introduced at trial.
On June 26, 2008, Redding Police Officer Robert Wilson interviewed Kao who had been arrested for an unrelated crime. Kao was very apologetic and wanted to pay the money back. He did not seem scared. Kao explained that when he tried to put his debit card into the ATM the card would not go in and defendant stepped up to help. After the transaction, defendant grabbed the debit card from the machine and they left. In defendant's car, defendant and Kao discussed the debit card and the money taken from the ATM. They discussed returning both but decided not to because they would get into trouble. Kao never stated that he had tossed the debit card out the window and into the neighbor's trash, contrary to his testimony at defendant's trial.
On September 18, 2008 and again on September 22, 2008, Kao called Officer Wilson but never said that he had lied about defendant's involvement during the June 26, 2008, interview. Kao told the officer that he had been unable to locate defendant in order for the officer to interview him.
A fraud investigator for the bank explained at trial that an ATM would not accept a second debit card if a card was already in the machine. The machine would display a message asking whether another transaction was desired. The maximum ...