Filed 8/27/18 P. v. Monzon CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed.

Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Warren Williams and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

This appeal arises from a probation revocation proceeding in which the court revoked probation for David Antonio Monzon on the grounds he had failed to report to his probation officer and that he attempted to commit a car burglary. In this appeal, Monzon challenges only the evidence of the alleged attempted burglary. He contends the evidence is insufficient to prove, even by a preponderance of the evidence, that he attempted to enter a car to commit theft. We will find the evidence sufficient and affirm the trial court's decision.

FACTS AND PROCEDURAL BACKGROUND.

At the time of the challenged probation revocation, Monzon was on formal probation in three felony cases. In case JCF36281 Monzon pleaded no contest to one count of felony vandalism (Pen. Code,[1] § 594, subd. (a)) and was placed on probation with a suspended three-year sentence.

In case JCF36764 Monzon pleaded no contest to possession of stolen property (power tools; § 496, subd. (a)) and again received probation with a three-year sentence.

In case JCF36919 Monzon pleaded no contest to bringing an illegal substance into the jail and again placed on probation (§ 4573.5).

Monzon's probation was revoked once prior to the current revocation. The court imposed a 120-day sentence and reinstated Monzon on probation.

The current probation revocation proceeding followed a petition to revoke probation for failure to report and failure to remain law abiding because he allegedly attempted a car burglary. Following a contested hearing the court found both allegations to be true. Probation was revoked and the suspended sentence was executed. The court declined to order a split sentence.

The facts of the attempted burglary arise from an event on September 5, 2017. An El Centro Police Officer observed Monzon approach a parked (and locked) Ford Expedition. The officer observed Monzon place both hands on one of the windows and then apply his full weight to attempt to push down the window. When the officer approached, Monzon attempted to walk away. Monzon told the officer he was just looking at his reflection in the window.

The car owner testified her husband kept his power tools in the vehicle.

DISCUSSION

Monzon does not contest the finding he failed to report to his probation officer. He does contend the evidence is not sufficient to prove he attempted to commit a car burglary, even by the preponderance of evidence standard of proof for probation violations. He argues he was prejudiced by the finding on the attempted burglary allegation because his failure to report violation could have resulted in a split sentence if that was the only ground for revocation.

A. Legal Principles

When we review a claim of insufficient evidence to support the trial court's decision we apply the familiar substantial evidence standard of review. Under that standard we review the entire record, drawing all reasonable inferences in favor of the trial court's finding. We do not make credibility decisions, nor do we weigh the evidence. Our task is to determine if there is sufficient substantial evidence from which the trier of fact could have reached its decision. (People v. Johnson (1980) 26 Cal.3d 557, 576-578; People v. Thomas (1992) 2 Cal.4th 489, 545.)

The parties agree that the standard of proof required for revocation of probation is preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.)

"Every person who enters any . . . vehicle . . . when the doors are locked . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459.) "An attempt to commit [burglary] consist of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a; People v. Prince (2007) 40 Cal.4th 1179, 1255.) The act required for attempt must go beyond mere preparation and show the defendant has put his or her plan into action. (People v. Watkins (2012) 55 Cal.4th 999, 1021; People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8.)

B. Analysis

Monzon contends the evidence is insufficient to support the trial court's finding he attempted to enter the vehicle with the intention to commit theft. We disagree. Monzon was not merely looking at or into the vehicle. He was observed using his "full weight" in an effort to push down the passenger window of the vehicle. When he saw the officer, he stopped and attempted to walk away. His explanation to the officer that he was merely looking at his own reflection could easily have been rejected by the trial court. There were power tools inside the locked vehicle. Monzon was on probation for receiving stolen power tools when he attempted to enter the parked vehicle. A reasonable jurist could easily infer an intention to steal and a direct effort to enter the car. The fact Monzon may have chosen a method of entry that might be physically impossible, does not make his effort, done with specific intent, any less criminal. The court's finding, by a preponderance of the evidence that Monzon attempted a vehicle burglary is supported by substantial evidence.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O'ROURKE, J.

GUERRERO, J.