P. v. Burnett

Filed 5/17/06  P. v. Burnett CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Richard Kossow, Judge.  (Retired judge of the former Justice Ct. for the Anderson Jud. Dist. assigned by the Chief Justice pursuant to art. VI, §  6 of the Cal. Const.)  Reversed.

            Cynthia M. Sorman, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Deputy Senior Assistant Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

            Following a jury trial, defendant was convicted of burglary (Pen. Code, § 459)^[1] and receiving stolen property (§ 496).  The jury also found true that defendant had served two prior prison terms within the meaning of section 667.5, subdivision (b).  Defendant was thereafter sentenced to a total term of four years in state prison.  Defendant's sole contention on appeal is that there was insufficient evidence to sustain his convictions for burglary and receiving stolen property.  We agree and will reverse the judgment.

I

FACTUAL BACKGROUND

            Sometime on the evening of January 8 or the early morning hours of January 9, 2004, the Mira Loma Milk Barn (the Milk Barn) was burglarized.  The telephone and electricity lines to the building had been cut, there were heavy pry marks on the frame of the door as well as the door handle to the security door, and the alarm system was disabled.  Taken in the burglary were cartons of cigarettes, rolls of California Lottery scratch-off tickets, cash, coins, checks written to the Milk Barn, and personal papers of the owners of the business.

            On the morning of January 9, 2004, about 6:40 a.m., a citizen who lived near the Milk Barn called the police to report a suspicious tote bag covered by a sweatshirt alongside the street in front of her house.  The citizen had looked in the bag and saw what appeared to be burglary tools.  While perusing the bag, the citizen noted that â€