Opinion
NOT TO BE PUBLISHED
Ventura County Super. Ct. No. 2009024088, John E. Dobroth, Judge.
William M. Aron, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Jose Aurelio Aguilar was convicted following a bench trial of conspiracy to commit burglary (count 1 - Pen. Code, § 182, subd. (a)(1)), attempted first degree residential burglary (count 2 - §§ 664/459), and being under the influence of a controlled substance (count 4 - Health & Saf. Code, § 11550, subd. (a)). The parties stipulated to the admission of documents relating to a prior prison conviction.
All further statutory references are to the Penal Code unless otherwise stated.
The trial court imposed an aggregate term of 13 years in state prison. On count one, the court imposed the middle term of four years doubled to eight years for the prior strike conviction. (§ 667, subd. (e)(1)). On count 2, the court imposed the middle term of two years, doubled to four years. (Ibid.) The terms were ordered to run concurrently. The court added five years for the prior serious felony conviction (667, subd. (a)(1).) On court four, the court imposed a sentence of 90 days to run concurrently with counts 1 and 2. Appellant argues there was insufficient evidence of his intent to enter into a conspiracy to commit burglary. We affirm.
FACTS
T.W., age 13, lived in a house in Camarillo with his family. Their home was surrounded by tall hedges, and a visitor had to pass through a gate to reach the front door. A walkway led from the front gate, around the side of the house, to the backyard. They had lived in the house for approximately four or five years.
On June 29, 2009, at approximately 10:40 a.m., T.W. was home alone. He heard someone knock on the front door and looked out through the blinds. T.W. saw appellant standing outside, but was afraid to open the door because he did not recognize him. Appellant then turned around and walked out to the street. T.W. saw a white car drive towards appellant and stop. A male passenger, Joey Moore, stepped out of the car, which then drove away. The driver was a woman with long brown hair. Moore and appellant walked to the front door together, and one of them knocked again.
T.W. called the police to report that someone was trying to burglarize his house. He later testified that he thought it strange that appellant would return to the front door after receiving no answer. After the men knocked a second time, T.W. heard the front door handle moving. He saw a shadow through the blinds at the side of the house and believed that one of the men had walked into the backyard. The screen door near the backyard began moving and making noise. T.W. looked out the window and saw appellant standing at the front door. Appellant later admitted to a detective that he was the person who had knocked on the front door the first time. A deputy who inspected the screen door testified that the aluminum door was bent back and had scrape marks two inches above ground level. It appeared that someone had tried to pry it open.
When the first deputy sheriff arrived on the scene, Moore and appellant were walking through the gate and down the driveway toward the street. Moore was carrying a cell phone in his hand. He said he had walked into the neighborhood to visit a friend. Moore had no identification. Appellant produced a California identification card.
Moore was searched and a pocketknife was recovered from his pocket. Appellant appeared nervous and fidgety and could not stand still. He was perspiring and spoke rapidly. A deputy conducted a drug evaluation and concluded that appellant was under the influence of a controlled substance. He admitted that he had smoked methamphetamine two days earlier. The results of a urine test were positive for methamphetamine.
T.W. identified appellant and Moore as the men who had knocked on the front door. He recognized Moore as someone who lived in the house before his family had moved there. T.W.'s family members were friends with some of the prior residents, and Moore had lived in the house at that time.
Another deputy detained the driver of a white Ford Tempo, Jessica Leal. She was parked approximately six blocks away, and had an unobstructed view of the approach to T.W.'s house. T.W. identified Leal as the driver he had seen on the street. A search of the car produced a wallet containing Moore's identification, and several letters addressed to him. The address on Moore's identification and the letters matched the victims' address. A cell phone belonging to Jessica Leal was also found in the car. An examination of the cell phones revealed that Leal had made a 13-second call to Moore's phone at 10:57 a.m. On the day of the offense Leal had driven appellant and Moore from Santa Paula to Camarillo.
DISCUSSION
Appellant challenges his convictions of conspiracy to commit a crime and attempted first degree residential burglary. A conspiracy conviction requires proof of the following four elements: "(1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy." (People v. Vu (2006) 143 Cal.App.4th 1009, 1024; § 182, subd. (a)(1).) Appellant claims that the evidence is insufficient to satisfy the second and third elements of the offense--that he had the specific intent to agree or conspire to commit a burglary or the specific intent to actually commit the offense.
In reviewing the sufficiency of evidence to support a conviction, we review the entire record to determine whether there is reasonable and credible evidence such that a reasonable trier of fact could find defendant guilty beyond a reasonable doubt. (People v. Hovarter (2008) 44 Cal.4th 983, 1014-1015.) We view the evidence and draw all reasonable inferences in favor of the judgment. (Id. at p. 1015.) We will uphold the judgment unless there is no substantial evidence to support the conviction under any hypothesis whatsoever. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Appellant asserts that the only evidence of intent was that he walked to the front door and knocked. He claims there is no evidence that he knew he was part of an attempted burglary, that he intended to join a conspiracy, or that he agreed to burglarize the house. In his reply brief, appellant asserts that he believed Moore lived in the house, based upon the address on Moore's identification and the letters in his possession. He therefore concluded that he was entering the house with Moore's consent, and that Moore had invited him to knock on the door. Thus, he could not have possessed the intent to conspire to commit a burglary.
Mere association cannot establish a conspiracy. (People v. Prevost (1998) 60 Cal.App.4th 1382, 1400.) However, a conspiracy may be proved through circumstantial evidence of a tacit understanding to commit a crime. (People v. Vu, supra, 143 Cal.App.4th at p. 1025.) "The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.' [Citations.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)
The evidence established that, on the day of the offense, Leal drove appellant and Moore from Santa Paula to Camarillo. Leal dropped appellant in front of T.W.'s house. Moore had lived there and knew the occupants. Appellant knocked on the door. He received no answer and walked back out to the street.
Leal then dropped Moore at the house, and parked several blocks away where she could observe the entire street. Moore walked with appellant to the front door and one of them knocked again. The door handle moved. Someone walked to the back of the house and the screen door moved. It bore pry marks, as if someone had tried to enter the house. Leal called Moore on her cell phone at the same time the first deputy arrived. Appellant and Moore began walking down the driveway toward the street.
The following could be inferred from the testimony of appellant, T.W. and the deputies: (1) appellant, Moore and Leal drove to a house where Moore had once lived in order to burglarize it; (2) once appellant had determined that the house was empty, he alerted Moore; (3) appellant acted as a scout and remained at the front door while Moore went to the backyard to pry open the screen door; (4) Leal acted as a lookout and called Moore to warn him that law enforcement had arrived; and (5) appellant and Moore abandoned their attempt and began walking back towards the street.
These facts are circumstantial evidence of a tacit understanding between appellant, Moore and Leal to commit the offense. From this evidence, the trial court could have inferred that all three had formulated a plan to burglarize the house, which they intended to carry out together. They attempted to do so, but were interrupted by the police.
There was no plausible explanation for appellant to stand on the front doorstep as either he or Moore tried the front doorknob, or for him to remain standing at the door while Moore walked to the rear of the house. It defies common sense for appellant to argue that he was an unwitting participant in the attempted burglary. If he had truly believed that Moore lived at the house, there would have been no reason for him to walk up to the house alone and knock on the door. The testimony of T.W., the deputy sheriffs, and appellant himself provided substantial evidence that he agreed to burglarize the house and intended to burglarize it.
Appellant suggests that we "heighten[]" the sufficiency of the evidence standard because knocking on the door was "entirely non-criminal" since he relied on Moore's identification that bore the house's address. We decline his invitation to alter the standard of proof.
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.