Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J37097
Siggins, J.
L. R., a minor, appeals from orders sustaining as felonies charges of first degree residential burglary (count 1) and receipt of stolen property (count 2); declaring him a ward of the juvenile court; and placing him on probation in his parents’ custody. His sole contention is that the evidence was insufficient to sustain the burglary charge. We agree and reverse in part.
BACKGROUND
Sandra Hernandez’s home in Vallejo was broken into and burglarized sometime between 9:30 a.m. and 6:00 p.m. on November 21, 2006. The window of the rear door to her garage was broken, a wooden bar used to secure the door from the inside had been removed, and the door was unlocked. The door from the garage into the kitchen was open. Various items were missing, including jewelry, cash and a Toshiba DVD player.
Hernandez’s backyard wooden fence appeared to have been freshly damaged where the burglar may have climbed over the fence. Vallejo Police Officer Patzer asked Hernandez’s next door neighbor, Deborah M., whether she had seen or heard anyone in Hernandez’s backyard. Deborah M.’s son Brandon lived with her and her two grandsons, Logan and L., who had moved in with her two or three weeks before the burglary. Deborah M. told Officer Patzer that her grandsons were living in the garage, which had been converted into a living area.
As Deborah M. and Patzer approached the garage, Deborah M. picked up a silver ring with a clear, diamond-type stone from the walkway. She did not recognize it. Logan opened the door and Patzer recognized him from Logan’s prior contact with the police. Terry J., Darius L., and L. were lying on mattresses in the garage.
Patzer knew that Logan was on probation with a search clause, and subsequently determined that Terry was as well. With Deborah M.’s consent, he and other officers searched the garage. Patzer saw a Toshiba DVD player. Logan said it was his grandmother’s, but Deborah M. told the officers it was not hers. When Logan was asked again where he got the DVD player, he said “Man that was there when I got home last night, I don’t know who put it there.” While Patzer was talking with Logan, one of the other officers radioed Patzer and said Hernandez had identified the DVD player as the one stolen from her house. When he heard this Logan said “Man, fuck.”
Other items of jewelry were found during the search and Hernandez identified some of them as hers. Her silver ring was found on the bed where Darius had been lying. Two necklaces, a single pearl earring, a gold watch, a dollar coin and a single cubic zirconium earring, also belonging to Hernandez, were found in a wooden cabinet in the garage. Deborah M. said that a claw hammer found in Hernandez’s backyard was borrowed from her by Logan and L. a few days earlier.
Deborah M. originally told Officer Patzer that Logan borrowed the hammer a couple of days before the burglary.
A cubic zirconium earring matching the one found in the cabinet was discovered in the pocket of a pair of blue jeans that were on the bed where Darius was lying when the officers arrived. Deborah M.’s son said the jeans belonged to Darius’s brother Rodney.
Deborah M. told Officer Cosgrove that she believed L., Logan, Darius and Rodney were asleep in the garage when she left for work at 5:45 a.m. on November 21. She returned home at 8:30 or 8:45 a.m., left for half an hour to run an errand and returned home again around 11:15 a.m. She thought all four of them were in the garage between 11:15 and 1:15, when she left again for work. At one point between 11:15 and 1:15, Logan came into the house to borrow money from Deborah M. so he could go to the store to get some treats. Deborah M. had placed a cowbell by the garage on the back door leading from her property, and it rings loudly when people come and go. She did not hear the bell while she was home that morning.
Deborah M. left work around 4:00 p.m. and returned home. Around 5:00 p.m. Logan, L., Darius and Rodney left to go to Avian Street. L., Darius and possibly Rodney returned at 8:00 p.m. Logan returned at 11:00 p.m.
Deborah M. said Logan was very apprehensive about leaving the garage unattended and when the four left, he asked Brandon to stay in the garage until they returned and not to let anyone inside. Brandon later told her that Logan was worried because he thought someone had stolen his garage key two days before and was planning to return and steal something. Brandon confirmed that Logan asked him to watch the garage while he was gone. Brandon watched the garage and told Officer Cosgrove that no one entered or left until L. and Darius returned around 8:00 p.m.
Officer Pucci interviewed the four boys at the police station. Logan initially agreed to give a statement and denied involvement in or knowledge of the burglary. After Pucci reminded him of his earlier contradictory statements about the DVD player, he refused to answer further questions.
L. said that he and Logan had been living at their grandmother’s home off and on for some time. She had them use the garage when they had friends over, but they had full access to her house. He, Logan and Darius were at home around noon on November 21. After preparing some food they started walking to L.’s father’s house but stopped off on Avian Street and met up with Terry. The four returned to Deborah M.’s around 11:00 p.m., where they played video games and went to sleep. L. denied any involvement in or knowledge of the burglary or stolen property.
Darius told Pucci that his mother drove him to L.’s home at 5:00 p.m. on November 21 after he spent the day in Fairfield with his brother and mother. Darius noticed a new Nintendo game and VCR/DVD player in the garage, and asked Logan where they had come from. Logan said the items belonged to Deborah M.. The three boys walked to Avian Street and returned around 11:30 p.m. Terry arrived around 11:50.
Because Darius had been lying near the blue jeans in which the stolen earring was found and none of the boys admitted owning the jeans, Pucci asked Darius if he had changed clothes within the past two days. Darius said he had borrowed a pair of jeans from L. when he arrived that evening because his black jeans had a hole in them. He denied that the jeans on the bed were his and said that L. may have left Darius’s black jeans in the main house and could confirm that Darius borrowed a pair of pants from him. Darius also denied any involvement in or knowledge of the burglary or possession of stolen property.
Darius’s mother said she did not see her son on November 21 and that he was lying when he said she had driven him to L.’s. She had never seen Darius wearing the jeans found on the bed.
When Pucci questioned L. again after he finished with Darius, L. was extremely uncomfortable and appeared to guess at answers. He confirmed that he lent Darius a pair of pants to wear, but when Officer Pucci asked why, L. was evasive and “guessed” that it was because Darius’s own pants were dirty. Pucci asked L. what time of day he had loaned Darius the jeans, and L. again appeared evasive and uncomfortable. He guessed at this answer as well and said it was sometime during the morning. Pucci noted that L.’s answer was inconsistent with Darius’s statement that he did not arrive at the garage until 5:00 p.m. When Pucci asked L. what color pants Darius was initially wearing, L. “guessed” that they were blue.
Pucci also interviewed Terry, who said he first saw Logan, L. and Darius at 5:00 p.m. on Avian Street. Around 10 p.m. he stopped by Logan’s residence. Logan, L. and Darius were there. Logan showed Terry several pieces of jewelry he said he “came up on” and planned to sell to buy gold teeth. Terry did not ask where Logan obtained the items and Logan did not tell him.
Pucci believed Logan, L., and Darius were lying to avoid prosecution—Logan about the ownership of the DVD player, Darius about his whereabouts that day, and L. about why he lent Darius a pair of his pants. Pucci was of the opinion that L. lied about the pants to confirm Darius’s statement. Based on their untruthful statements “and supporting evidence,” Pucci believed all three boys were involved in the burglary, in part because all three had the opportunity to commit the burglary; Logan asked Brandon to guard the garage; and the hammer found in Hernandez’s backyard had been in Logan’s possession. Pucci also opined that the blue jeans found on the bed belonged to Darius, whose “story about why he had to change pants was not substantiated and found not to be credible.”
A juvenile delinquency petition charged L. with first degree residential burglary and receipt of stolen property. The parties stipulated to submit the matter on the arrest report and the juvenile court sustained the petition on both counts. The court commented that nothing in the police report suggested L. had been a victim of the older boys; that L. never blamed the crime on the others; that he was at the garage with the other boys all day; and that he lied to the police officers. The court also commented on “the fact that [the boys] even engaged, Logan specifically, asking L. if he needed a lookout when he left the premises, it all leads to knowing that everything was stolen.” This appeal timely followed.
DISCUSSION
L. contends the evidence was insufficient to sustain the burglary charge against him. Our task, accordingly, “ ‘ “is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Christopher (2006) 137 Cal.App.4th 418, 430.) We draw all reasonable inferences to support the judgment and do not reweigh the evidence, resolve evidentiary conflicts or determine credibility. (Ibid.; People v. Mobley (1999) 72 Cal.App.4th 761, 788, overruled on another point in People v. Trujillo (2006) 40 Cal.4th 165, 181, fn. 3.)
He does not challenge the receipt of stolen property finding.
Under Penal Code section 459, a person is guilty of burglary when he or she “enters any house . . . with intent to commit grand or petit larceny or any felony.” There is no question but that a burglary was committed. The only question for us is whether the record contains substantial evidence from which a reasonable trier of fact could find beyond a reasonable doubt that either actively, or as an aider and abettor, L. participated in the burglary. (People v. Jordan (1962) 204 Cal.App.2d 782, 786-787.) As both parties correctly observe, the prosecution was required to prove more than mere receipt of stolen property. “[E]vidence of possession of property taken in a burglary, unless augmented by other evidence corroborating the defendant’s involvement, is insufficient to support a burglary conviction . . . .” (People v. Mendoza (2000) 24 Cal.4th 130, 175.) But, “[w]hen a defendant is found in possession of property stolen in a burglary shortly after the burglary occurred, the corroborating evidence of the defendant’s acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary convictions. (Id. at p. 176.) Of course, in applying this rule we must keep in mind that the evidence as a whole, considered in a light favorable to the judgment, must be such that a reasonable trier of fact could conclude that the prosecution proved the offense beyond a reasonable doubt. (People v. Lee (1999) 20 Cal.4th 47, 58.)
L. accurately observes, and the People implicitly concede, that there is no direct evidence L. participated in burglarizing Hernandez’s house, that he helped one or more of the other boys to commit the crime, or that he otherwise aided or abetted the commission of the offense. (See People v. Montoya (1994) 7 Cal.4th 1027, 1039; People v. Cooper (1991) 53 Cal.3d 1158, 1164 [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].) Although the stolen goods were found in the garage L. shared with Logan, there is remarkably little in the police record to indicate he participated in or aided and abetted the burglary. Logan was caught in a variety of lies and contradictions about the stolen DVD player and flashed items of stolen jewelry to Terry and bragged “look what I came upon.” Darius was caught in blatant lies about his whereabouts the day of the burglary. L.’s statements were significantly less incriminating.
He did, however, give Officer Pucci evasive and untruthful answers about why and when he lent a pair of his jeans to Darius. The People argue a trier of fact could conclude from this that the jeans found on the mattress near Darius belonged to L.—thereby, they argue “supplying sufficient evidence of [L.’s] possession of the stolen earring found in the pocket of those jeans, as well as his involvement in the burglary.” We are not persuaded. It is true that Darius and L. gave conflicting answers about when and why L. lent Darius the pants Darius was wearing when the officers arrived. But there is no evidence that the jeans found on the bed belonged to L. To the contrary, Officer Pucci concluded they belonged to Darius, and Deborah M.’s son Brandon thought they belonged to Darius’s brother Rodney. Assuming that L. lied about why and when Darius changed his pants and whether Darius arrived wearing blue or black jeans, his lies do not connect him, rather than Darius,to the blue jeans found on the bed.
We note that the trial court commented that Logan asked L. whether they needed a “lookout” when they left the garage. Such a statement would be some foundation for an inference that L. was involved in the burglary. However, we have carefully reviewed the police report, the only evidence in this case, and cannot find this exchange between the brothers.
In sum, the police report provides compelling evidence that someone burglarized Hernandez’s home on November 21, and that at least some of the boys who stayed in Deborah M.’s garage that night were responsible. But it does not provide evidence from which a reasonable trier could find beyond a reasonable doubt that L. participated in the burglary, either directly or as an aider and abettor. Accordingly, we reverse the order sustaining the petition as to the burglary charge.
DISPOSITION
The order sustaining the petition is reversed as to count I and in all other respects is affirmed.
We concur: McGuiness, P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.