Filed 11/1/17 P. v. Anderson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

GRANT MILTON ANDERSON,

Defendant and Appellant.
H043829
(Santa Cruz County
Super. Ct. No. F28889)

A jury found defendant Grant Milton Anderson guilty of trespassing, battery, resisting arrest, and numerous counts of public intoxication. The trial court found Anderson guilty of failure to register as a sex offender by a person living as a transient. The court granted a three-year term of probation to include 258 days in county jail. After Anderson was found in violation of his probation conditions, the court imposed an aggregate term of three years.
Anderson challenges his conviction for trespassing. He contends the evidence was insufficient to prove that the person who asked police to remove him from the subject property was an agent of the property owners. We conclude this claim is without merit. We will affirm the judgment.


I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
The charges arose from numerous incidents in which Anderson was found intoxicated in various public places; refused to leave private properties; and threatened or fought with police officers attempting to arrest him. The sole issue on appeal concerns his conviction on Count 5 for trespassing on a private property in Capitola.
Daniel Finkel lived at a neighboring property on Riverview Avenue along Soquel Creek. He testified that a walkway ran along the side of the creek between the houses and the creek. Between the walkway and the creek, there were yard and deck areas on private property closed to the public. Most of the decks were enclosed.
On the afternoon of May 20, 2015, Finkel heard someone yelling obscenities or “incoherent vocalizations” from a house four doors down on Riverview Avenue (the property). Finkel testified that he knew the homeowners to be Bill and Lynn Gilbert. Finkel also knew their daughter, Katey Gilbert, who had lived at the house in the past. Finkel did not know if Katey Gilbert was living there are the time.
Finkel walked over to the property and found Anderson on the deck “just kind of yelling up at the sky.” Anderson had a suitcase and a bottle of vodka. Finkel testified that he “might have said something about private property” to Anderson. Anderson continued to make noise over a period of several hours. After Finkel spoke with the neighbors, he decided to call 911. The police arrived 10 minutes later and took Anderson away.
Katey Gilbert testified that her parents owned the property on Riverview Avenue. Gilbert lived at the house continuously around 2007 to 2011. She was not living at the house full time in May 2015, but she went there about twice a month. The deck on the creek was enclosed by a gate, but the gate was not locked, so the deck could be accessed from the walkway without a key. The gate had a sticker marked “private property.”
On May 20, 2015, Gilbert got a call from Finkel about someone on the deck with a bottle of vodka. Gilbert testified that she did not know Anderson, and she never gave him permission to be on the property. The police also called Gilbert to verify whether she knew the person on the deck, whether he had permission to be there, and whether she wanted him removed. She told the police officer she did not give Anderson permission to be there, and she did not want him at the property.
Capitola Police Officer Leland Blankenship was dispatched to the property around 3:45 p.m. to investigate a reported trespassing. Blankenship found Anderson sitting on the deck with an open bottle of vodka and orange juice. Anderson smelled of alcohol and appeared intoxicated. Blankenship placed Anderson under arrest and called Katey Gilbert. Gilbert told Blankenship she wanted Anderson arrested for trespassing and she asked Blankenship to instruct Anderson not to return to the property. Blankenship testified that he called Gilbert “[b]ecause she was the property owner.”
Around 7 p.m. on August 6, 2015, Blankenship was again dispatched to the property on a report of trespassing. When Blankenship arrived, he found Anderson lying face down on the deck. Anderson smelled of alcohol and appeared intoxicated. Blankenship arrested him.
Anderson testified on his own behalf. He denied being drunk when he was arrested, but admitted he may have been “in a relaxed state of being.” He admitted he sometimes went to the path on Riverview Avenue to sit by himself, and he characterized the area as “all vacation rentals” with “nobody . . . there.” He denied that anyone had ever asked him to leave, and he denied that he was “hooting and hollering.” He admitted that he “sat down there on some private property” around the Riverview Avenue location, which he described as an abandoned “run down little house.” He did not know who owned the property at the time. He added, “I just sit on the dock, you know, have a drink. Nobody is around.”

B. Procedural Background
The prosecution charged Anderson with 20 counts: Counts 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 14, 17, and 20—Public intoxication (Pen. Code, § 647, subd. (f)) ; Count 5—Trespassing and refusing to leave private property (§ 602, subd. (o)); Count 13—Battery (§ 242); Count 15—Resisting an executive officer (§ 69); Counts 16 and 18—Failure to register by a transient (§ 290.011); and Count 19—Resisting arrest (§ 148, subd. (a)). As to Count 15, the prosecution alleged Anderson had suffered two prior strike convictions. (§ 667, subds. (b)-(i).) The trial court granted the prosecution’s pretrial motion to strike Count 14.
Trial began in June 2016. At the end of the evidentiary phase, the trial court granted Anderson’s motion to dismiss Count 1 for lack of evidence. The jury found Anderson guilty on Counts 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 17, 19, and 20. The jury found Anderson not guilty on Counts 3, 4, and 15. The trial court found Anderson guilty on Count 18 and not guilty on Count 16.
The trial court suspended imposition of sentence and granted a conditional three-year term of probation to include 258 days in county jail. The court subsequently found Anderson in violation of his probation conditions. The court imposed an aggregate term of three years in county jail, consisting of consecutive six-month terms for each of Counts 6, 8, 10, 13, 17, and 20.
II. DISCUSSION
Anderson contends the prosecution failed to present sufficient evidence to support his conviction on Count 5 for trespassing. He argues that the evidence failed to show Katey Gilbert was acting as the property owners’ agent when she asked police to remove Anderson. The Attorney General contends the prosecution presented sufficient evidence from which the jury could infer Gilbert was authorized to act for her parents. We conclude sufficient evidence supports Anderson’s conviction for trespassing.
1. Legal Principles
Section 602, subdivision (o), prohibits “[r]efusing or failing to leave land, real property, or structures belonging to or lawfully occupied by another and not open to the general public, upon being requested to leave by (1) a peace officer at the request of the owner, the owner’s agent, or the person in lawful possession, and upon being informed by the peace officer that he or she is acting at the request of the owner, the owner’s agent, or the person in lawful possession, or (2) the owner, the owner’s agent, or the person in lawful possession.” (Italics added.) “An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.” (Civ. Code, § 2295.) “Agency may, like most matters, be proven by circumstantial evidence, including evidence of the acts of the parties and their oral and written communications.” (Whittaker v. Otto (1961) 188 Cal.App.2d 619, 622-623.)
“In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question . . . is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Rowland (1992) 4 Cal.4th 238, 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) The California Constitution requires the same standard. (Ibid.) “In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.) This standard applies even when the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.)

2. Sufficient Evidence Supported a Finding of Agency
Officer Blankenship testified that Katey Gilbert asked him to arrest Anderson for trespassing and requested that Anderson be told not to return to the property. Blankenship testified that he thought Gilbert was the property owner, but Gilbert testified that her parents owned the property. Gilbert had lived at the property continuously from 2007 to 2011, and she went there around twice a month. She told the police she had never given Anderson permission to be on the property. She was alerted to Anderson’s presence on the property when the neighbor, Daniel Finkel, called her.
Anderson contends this evidence is insufficient to support a finding that Gilbert was acting as an agent for the property owners when she asked the police to instruct Anderson to leave. Anderson points out that the prosecution presented no evidence of any express written or oral agreement between Gilbert and her parents that would establish an agency relationship.
We are not persuaded. “Agency may be implied based on conduct and circumstances.” (Zimmerman v. Superior Court (2013) 220 Cal.App.4th 389, 401.) Gilbert was the daughter of the property owners. She had lived there full time for several years in the past, and she was visiting the property twice a month around the time of the offense. Her presence at and control over the property was apparent to the neighbor Finkel, who called her to report the disturbance created by Anderson’s yelling. A reasonable jury could infer Gilbert was representing the property owners when she spoke with the police, notwithstanding the lack of any express agreement. (See Brokaw v. Black-Foxe Military Institute (1951) 37 Cal.2d 274, 278 [the existence of agency is generally a question of fact, and an inference of agency by a factfinder is entitled to the same consideration as its finding of a fact upon contradictory evidence].) We conclude this claim is without merit.
III. DISPOSITION
The judgment is affirmed.

_________________________
RUSHING, P.J.





WE CONCUR:






_________________________
PREMO, J.






_________________________
GROVER, J.
















People v. Anderson
H043829