Filed 5/30/18 In re Jeremiah K. CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re JEREMIAH K., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

JEREMIAH K.,

Defendant and Appellant.

F074650

(Super. Ct. Nos. 16CEJ600074-2A, 16CEJ600074-2R)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Gregory T. Fain, Judge.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Tia Coronado and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In case No. 16CEJ600074-2R, the court sustained allegations in a wardship petition (Welf. & Inst. Code, § 602), charging appellant Jeremiah K. with attempted first degree burglary (Pen. Code, §§ 664, 459 & 460, subd. (a)). In case No. 16CEJ600074-2A, the court sustained allegations charging appellant with indecent exposure (§ 314, subd. 1)).
On November 2,2016, the court readjudged appellant a ward of the court. It also revoked and reinstated probation in an unrelated case, set appellant’s maximum term of confinement at three years six months, and committed appellant to juvenile hall for 60 days, followed by release on the Juvenile GPS Monitoring Program for 60 days.
On appeal, appellant contends the evidence is insufficient to support his adjudication for attempted first degree burglary. We affirm.
FACTS
The evidence at appellant’s jurisdictional hearing established that on September 12, 2016, at approximately 8:00 a.m., Don Fisher and his wife, Nellie, left their house in Fresno to teach a class. As he drove away, Fisher noticed a tall boy and two shorter boys on a nearby street. Afterwards, their neighbor, A.T., saw three boys, whom she estimated were 16-17 years of age, walk to the Fishers’ house. The boys walked around the garage to the front door of the house where the two shorter boys loitered for a long time while the tall, African-American boy walked to the street and looked around.
A.T. called the Fishers and told them to return home. Fisher turned around and, on the way back home, his wife dialed 911 and reported a burglary in progress. The Fishers arrived at their house a little before 8:30 a.m., just before Fresno Police Officer Victor Barrios.
When the Fishers left, there was no damage to the exterior of their house and the window frames were clean and in good condition. When Barrios and Fisher examined it, they found that a screen from a front window had been removed and placed in a flowerbed. They also found four pry marks on the window, and that the prying tool had bent the window’s aluminum frame.
Fresno Police Officer Christopher Cooper was also dispatched to the Fishers’ house. At an intersection about a half block away, he saw two boys in the street, later identified as appellant and Hugo M, who matched the description of two of the boys seen at the house. When Cooper first made eye contact with appellant and Hugo, they immediately turned and began walking away. After contacting appellant, Cooper found a black sock and a flat-edge screwdriver on the ground, within five feet of appellant. The screwdriver was consistent with the pry marks found on the Fishers’ window. The sock could have been used to avoid leaving fingerprints at the scene. As he was being booked at juvenile hall, appellant removed a black sock from an inside pocket of the shorts he was wearing. The sock matched the one found on the ground near appellant.
DISCUSSION
Appellant contends the evidence showed only that he may have been with two other boys who may have committed an attempted burglary and that no evidence was presented that he used a screwdriver to attempt to pry open the damaged window or that he had the specific intent to aid or abet anyone in committing an attempted burglary. Thus, according to appellant, the evidence is insufficient to sustain his adjudication for attempted first degree burglary. We disagree.
“Where, as here, a defendant challenges the sufficiency of the evidence to support his conviction, ‘[t]he standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] “ ‘[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.’ ” [Citation.] “The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] ‘Although it is the duty of the [finder of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [finder of fact], not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.’ ” ’ [Citation.]

“ ‘An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.’ [Citation.] ‘[A] jury may not rely upon unreasonable inferences, and ... “[a]n inference is not reasonable if it is based only on speculation.” ’ [Citation.] ‘Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].’ [Citation.]

“ ‘Every person who enters any house ... with intent to commit grand or petit larceny or any felony is guilty of burglary.’ [Citation.] ‘An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.’ ” (People v. Zaun (2016) 245 Cal.App.4th 1171, 1173–1174.)
When the Fishers left their house at approximately 8:00 a.m., there was no damage to its windows and the screens were in place. When they returned at approximately 8:30 a.m., however, a screen had been removed from a window that had pry marks and a bent frame. The court could reasonably have found from these circumstances that between 8:00 a.m. and 8:30 a.m., someone attempted to enter the Fishers’ house with the intent to commit larceny. (Cf. People v. Jordan (1962) 204 Cal.App.2d 782, 786 [larcenous intent may be inferred from unlawful entry alone or from entry through a window].) It could also reasonably find from the match between the screwdriver and the pry marks, the potential use of the socks to avoid leaving fingerprints, and the abandonment of two of these items on the street near the site of the attempted burglary, that the screwdriver and socks were burglary tools that had been used in the attempted burglary of the Fishers’ house. Additionally, the screwdriver and one sock were found within five feet of appellant when he was detained, and during the booking process, appellant was found in possession of a second, matching sock that he apparently tried to conceal in his shorts. The court could reasonably infer from these circumstances that appellant had been in possession of all three items until just prior to being detained when he discarded the screwdriver and one sock.
“While the evidence of the possession of stolen goods, and we may add, of burglarious tools, shortly after the commission of [a burglary] offense may not, standing alone, be sufficient to sustain a verdict, it requires only slight additional testimony.” (People v. Parkinson (1934) 138 Cal.App. 599, 609 (Parkinson).) This is “especially true where the defendant has failed to account for the possession upon a theory inconsistent with his guilt of the offense charged.” (People v. Godlewski (1943) 22 Cal.2d 677, 685, citing with approval Parkinson, supra, 138 Cal.App. at p. 609.)
In addition to possessing burglarious tools (the screwdriver and the socks) immediately after the attempted burglary, appellant did not provide an innocent explanation for possessing them. Further, during the time frame that the attempted burglary must have occurred, appellant and another juvenile (Hugo) were seen loitering by the front door of the Fishers’ house, while a third juvenile stood in front of the house, ostensibly acting as a lookout. Additionally, the court could reasonably find that appellant exhibited a consciousness of guilt when, upon making eye contact with Officer Cooper, he immediately turned and started walking away from him. (Cf. CALCRIM No. 372 [defendant’s flight or attempted flight immediately after crime is committed may show consciousness of guilt].) Thus, we conclude that the evidence is sufficient to support appellant’s adjudication for attempted burglary on the theory that he was the actual perpetrator of the offense.
Moreover, the court could also reasonably have found that appellant committed attempted burglary on an aiding and abetting theory. “[A]n aider and abettor is a person who, ‘acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’ ” (People v. Prettyman (1996) 14 Cal.4th 248, 259.) “Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. [Citations.] Additionally, flight is one of the factors which is relevant in determining consciousness of guilt.” (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.)
Based on the evidence, the only reasonable conclusion is that either appellant or Hugo actually perpetrated the attempted burglary of the Fishers’ house while the tall boy acted as a lookaout. In addition to the other incriminating circumstances discussed above, appellant was with Hugo before, during, and after the attempted burglary. And, as noted above, the court could have found that appellant carried the burglary tools for Hugo after the attempted burglary and that he exhibited consciousness of guilt when he attempted to flee from officer Cooper. Thus, even assuming Hugo was the actual perpetrator of this offense, the evidence was sufficient for the court to find that appellant aided and abetted Hugo in his attempted burglary of the Fishers’ house. (Cf. People v. Moore (1953) 120 Cal.App.2d 303, 306 [defendant accompanying other defendants before, during, and after robbery and possession of knife used, and money taken, during robbery, sufficient to sustain defendant’s conviction of robbery on aiding and abetting theory].) Accordingly, we reject appellant’s sufficiency of evidence claim.
DISPOSITION
The judgment is affirmed.