Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD200585 Howard H. Shore, Judge.
BENKE, Acting P. J.
A jury convicted John Payne, Jr., of three counts of robbery and three counts of burglary. Payne was sentenced to a prison term of five years. He appeals, contending the evidence was insufficient to support his conviction of robbery and burglary in counts 3 and 4. We agree and reverse the judgment as to appellant's convictions in counts 3 and 4. In all other respects we affirm the judgment.
FACTS
A. Prosecution Case
1. Counts 1 and 2
On June 24, 2006, at 9:50 p.m. a white male, later identified as Devin Miller, and a black male, later identified as appellant, entered a Chula Vista video store 10 minutes before it closed. Appellant wore a baseball-style cap with a Charger's emblem, and Miller wore a black hat and carried a large beverage cup.
Miller approached store clerk Michael Martinez and placed the cup on the counter while appellant went to the back of the store. Appellant then returned to the counter with an item to purchase. As Martinez began to ring up appellant's purchase, appellant told Martinez that Miller had a gun and to put all the money in the cup. Appellant handed Martinez the cup, while Miller lifted his shirt to reveal the handle of a gun. After Martinez emptied the register into the cup, Miller grabbed the cup, appellant grabbed the merchandise on the counter, and they walked out of the store.
2. Counts 3 and 4
In July 2006 appellant worked as a bartender at Marie Callender's Grill in Coronado. Joe Rush was the assistant manager, and the two had worked together for about four years.
On the evening of July 4, 2006, both men were working at the restaurant. Around 9:30 p.m. appellant began conversing with a man at the bar. Rush was unable to identify the man. Rush testified the man and appellant talked for an hour and a half. The two left together at 11:00 p.m. Appellant told police he finished work at 10:15 p.m., waited until 10:50 p.m. for Miller to arrive, and at 11:00 p.m. Miller drove him home to Chula Vista and left. At trial an officer testified it was impossible for Miller to drive to Chula Vista and return to Marie Callender's in Coronado by 11:15 p.m. to commit the crime.
At 11:00 p.m. Rush said goodbye to appellant and finished placing the cash drawers in the safe located in the office near the back door. Rush then began making his last round through the restaurant to turn off the lights, lock the door, set the alarm and leave. The front entrance was locked at 10:00 p.m., leaving only the back door unlocked. The back door did not clearly indicate it led into the restaurant; although a Marie Callender's sign was located nearby, a closer "Prudential" sign pointed directly to the back door.
At 11:15 p.m. when Rush returned to the office to finish his closing duties, he encountered a man standing at the entrance of the office with a black gun in his hand. The man's face was covered by a black paint ball mask, and he wore a black baseball-style cap with S.D. lettering. Rush could not identify the man who robbed him in a photographic lineup that included Miller. However, he later identified Miller in a live-lineup, during which the suspects wore masks and reenacted the movements and statements made during the robbery. Rush testified that when he identified Miller: "I just could totally know that that was the person that night. I just knew."
During the robbery, Miller ordered Rush to go into the office and empty the safe into a bag. He also demanded Rush's cell phone. After Rush complied with his demands, Miller grabbed the bag containing $2,597 and left the restaurant through the back door.
When Rush heard the back door slam, he reached for one of the two office telephones and discovered the receivers to both had been removed. The two telephones in the front of the restaurant that did not dial out were untouched.
3. Counts 5 and 6
On the evening of July 23, 2006, a black male, later identified as appellant, entered a video store in Imperial Beach carrying a large beverage cup and wearing a black baseball-style cap with S.D. lettering. Appellant demanded clerk Josue Castellanos place money from the register in the cup and revealed a black gun holstered to his hip. Appellant left the store after Castellanos put $386 in the cup.
4. Investigation
On July 31, 2006, police officers executed a search warrant on Miller's vehicle, seizing two black replica handguns that could either fire BB's or pellets and a black paint ball face mask.
At trial, the victims of all three robberies identified the replica firearms seized from Miller's vehicle as similar to the gun used during the robberies. Rush also identified the paint ball mask seized in Miller's vehicle as similar to the one worn by the man who robbed him.
On August 8, 2006, police officers executed a search warrant at appellant's apartment in Chula Vista and seized a box of BB's (compatible with the replica handguns recovered from Miller's car) and a black baseball-style cap with S.D. lettering.
Rush identified the baseball cap seized from appellant's apartment as similar to the cap worn by the man who robbed him. Castellanos identified the baseball cap seized from appellant's apartment as similar to the cap worn by the man who robbed him.
B. Defense Case
Nicole Colmenero testified and provided alibi for appellant for the robbery on July 23, 2006. Colmenero testified she worked at Marie Callender's in Chula Vista with appellant on that date, he clocked out at 6:59 p.m. and stayed at the restaurant until 9:12 p.m. when he and Miller took her home.
DISCUSSION
Appellant was convicted of the robbery and burglary at Marie Callender's Grill on an aiding and abetting theory. Appellant contends the circumstantial evidence offered to connect him to the crimes, while raising suspicion he was involved, was insufficient to support his conviction.
1. Standard of Review
In determining whether the evidence is sufficient to support a conviction, we review the whole record in the light most favorable to the judgment, drawing all inferences in support of the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576.) It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these functions are reserved for the trier of fact. (Evid. Code, § 312.) The test is whether there is substantial direct or circumstantial evidence of credible and solid value to support the jury's findings. (People v. Johnson, supra, 26 Cal.3d at p. 578; People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
2. Law of Aiding and Abetting
" 'A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.' " (People v. Hill (1998) 17 Cal.4th 800, 851; People v. Beeman (1984) 35 Cal.3d 547, 561.)
A finding of aiding and abetting is supported by evidence that the accused either instigated or advised the commission of the crime or was present during the commission of the crime for the purpose of assisting in its commission. (People v. Booth (1996) 48 Cal.App.4th 1247, 1254-1256.)
3. Discussion
Substantial evidence does not support appellant's conviction in counts 3 and 4, the charges stemming from the robbery and burglary of Marie Callender's.
The prosecution relied on appellant's employment at Marie Callender's and participation in two video store robberies to connect him to the robbery and burglary of the restaurant. Although appellant was familiar with the layout and closing procedures of the restaurant and had previously committed a crime with the perpetrator of the Marie Callender's robbery, neither his employment nor his past criminal behavior established appellant was present during the robbery, knew a robbery was going to happen, or that he assisted, encouraged or facilitated the commission of the robbery. The prosecution built a case cloaking appellant in suspicion but failed to establish any direct or circumstantial evidence from which a jury could logically and reasonably infer appellant assisted in the robbery.
The prosecution used appellant's participation in the video store robberies as evidence to connect him with the robbery and burglary of Marie Callender's. It is undisputed that appellant and Miller robbed a Chula Vista video store together 10 days before the Marie Callender's robbery. It is also undisputed that appellant later robbed an Imperial Beach video store. Witnesses identified the two replica firearms seized in Miller's vehicle as similar to the weapon used in all three robberies, but no witness could say for certain if either of the firearms were actually used in the robbery. Witnesses also identified the cap seized at appellant's apartment as similar to the cap worn by appellant in the Imperial Beach video store robbery and similar to the cap worn by Miller during the Marie Callender's robbery. However, no witness could say for sure if the cap seized at appellant's apartment was worn during either robbery and because, as one witness stated, "there's a lot of those caps."
The prosecution also presented evidence that appellant worked the night of the Marie Callender's robbery and spoke for an hour and a half with an unidentified individual at the bar. However, the individual remained unidentified, and nothing in the record, aside from speculation, established whom appellant spoke with. We may speculate as to any number of persons and conversations appellant had with the unidentified individual. " ' "[T]he inference must be a reasonable conclusion from the evidence and cannot be based upon suspicion, imagination, speculation, surmise, conjecture or guesswork. [Citation.] Thus, an inference cannot stand if it is unreasonable when viewed in light of the whole record. [Citation.]" [Citation.]' " (Shandralina G. v. Homonchuk (2007) 147 Cal.App.4th 395, 411.) The fact appellant worked at Marie Callender's the night of the robbery establishes his presence at the crime scene before the robbery occurred, not during its commission. Further, appellant's chat with an unidentified individual and witness testimony as to similaritiesin the crimes, although suspicious, are not substantive evidence appellant assisted the commission of the robbery.
Thus, the circumstantial evidence on aiding and abetting does not support appellant's conviction for robbery and burglary in counts 3 and 4, and his conviction on these counts must be reversed.
DISPOSITION
The judgment is reversed as to the convictions for robbery and burglary in counts 3 and 4. In all other respects, the judgment is affirmed.
WE CONCUR: McINTYRE, J., AARON, J.