Opinion
C080439
08-28-2017
THE PEOPLE, Plaintiff and Respondent, v. AARON GENE DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF129300A)
Defendant Aaron Gene Davis broke into the victim's house in the middle of the night through a kitchen window. The victim and his fiancée were asleep when defendant made his entry and awoke to find him standing in their bedroom doorway. Retrieving a handgun from the right side of the bed, the victim fired a round as defendant fled down the hallway towards the kitchen. He then followed in pursuit and fired another round in the kitchen before defendant escaped through the same window.
Defendant was convicted by jury of first degree residential burglary. (Pen. Code, §§ 459, 460.) The jury also found another person, other than an accomplice, was present in the residence during the commission of the burglary, making the offense a violent felony under section 667.5, subdivision (c). In a bifurcated proceeding, the trial court found defendant had served one prior prison term (§ 667.5) and had one prior serious felony conviction (§ 667, subd. (a)) that was also a strike conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170, subds. (a)-(d)). Defendant was sentenced to serve an aggregate determinate term of 17 years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) the evidence was insufficient to support his burglary conviction because there was no substantial evidence he intended to commit theft when he unlawfully entered the victim's house; and (2) the trial court prejudicially erred and violated his federal constitutional rights by instructing the jury with CALCRIM No. 372, the standard flight instruction, because there was no substantial evidence to support a conclusion his departure from the house was motivated by a consciousness of guilt rather than self-preservation. We affirm the judgment. As we explain, the evidence was more than sufficient to support defendant's burglary conviction. Substantial evidence also supported the flight instruction in this case.
FACTS
Defendant broke into the victim's house just before midnight on July 18, 2014. He entered through a kitchen window that was accessible from the backyard. Defendant was wearing a dark hooded sweatshirt, gray jeans, black and purple shoes, was carrying a folding knife and "either a window punch or [an] ice pick," and may have also been wearing black gloves.
The victim and his fiancée were home at the time. They were asleep in their bedroom when defendant made his entry. The victim's fiancée awoke as defendant reached their bedroom and gasped at the sight of his silhouette in the doorway. This awakened the victim, who grabbed a handgun he kept near him while he slept, got out of bed, and fired a round at the retreating figure. The victim followed defendant with the gun as he walked quickly back to the kitchen and fired a second round just before defendant "dove out the window from which he had come in." The victim then spent several minutes making sure no one else was in the house and defendant had left his backyard before returning to the bedroom. When he returned, his fiancée had already called 911 on her cell phone.
One of the bullets the victim fired struck defendant in the buttocks and exited through his scrotum. In his haste to leave the scene, defendant lost one of his shoes in the backyard near the open window and knocked over a trash can on his way out of the backyard's side gate. He then ran up the street, entered a neighbor's front porch, which was located a few houses away from the victim's house, and collapsed. The neighbor was watching TV at the time and heard a sound "like something thumped, banged into something that was on the porch." He opened the front door and looked out to see what had happened, but the porch was dark and he initially could not see anyone there. A few moments later, the neighbor saw defendant's arm raise up out of the darkness and saw there was blood on it. He called 911 immediately.
The calls made by the neighbor and the victim's fiancée came in at roughly the same time. The neighbor's call took precedence due to defendant's injuries. When sheriff's deputies arrived and asked defendant for his name, he refused to speak to them. Deputies searched defendant while emergency medical personnel were en route and found a knife and window punch or ice pick in his back pockets. A single black glove was also found in the neighbor's front yard. Paramedics arrived a short time later, determined the location of defendant's wounds, and transported him to the hospital. When questioned at the hospital, defendant initially supplied a false name. He was "cussing, yelling," and "physically uncooperative with the medical staff." When defendant was informed by one of the deputies that his true identity had been determined, he became "quiet" and "instantly changed his demeanor."
While neither the victim nor his fiancée was able to identify defendant as the person who entered their house the night of the burglary, because it was dark inside the house, the sufficiency of the evidence to establish his identity is not challenged in this appeal. Indeed, among other evidence, defendant was wearing only one shoe when taken into custody and its missing companion was recovered from the victim's backyard. Both the victim and his fiancée testified they did not know defendant and never gave him permission to enter their house.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence is insufficient to support his burglary conviction because there is no substantial evidence he intended to commit theft when he broke into the victim's house. He is mistaken.
" 'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 .) The fact the evidence in this case was primarily circumstantial does not alter the standard of review. "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.] 'Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his [or her] guilt beyond a reasonable doubt.' [Citation.]" (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
Burglary has two elements: (1) unlawful entry, and (2) the intent to commit theft (either felony or misdemeanor) or any other felony at the time of entry. (§ 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041.) As mentioned, defendant does not challenge the sufficiency of the evidence to establish he unlawfully entered the victim's house. Instead, he argues the evidence was insufficient to establish he possessed an intent to steal when he did so.
As defendant points out, while the intent to commit any felony will also satisfy this element of the offense, the jury was specifically instructed defendant must have intended to commit theft. --------
Over a century ago, our Supreme Court explained that "when a person enters a building through a window at a late hour of the night, after the lights are extinguished, and no explanation is given of his [or her] intent, it may well be inferred that his [or her] purpose was to commit larceny, such being the usual intent under these circumstances." (People v. Soto (1879) 53 Cal. 415, 416.) This remains the law. (See, e.g., People v. Jordan (1962) 204 Cal.App.2d 782, 786-787 ["Burglarious intent can reasonably be inferred from an unlawful entry alone"]; People v. Jones (1962) 211 Cal.App.2d 63, 71-72 [same]; People v. Fitch (1946) 73 Cal.App.2d 825, 827 [same].) This is precisely the scenario that took place in this case.
Moreover, as we explain more fully below, there was also substantial evidence of flight that further supported a reasonable inference defendant entered the victim's home with the intent to steal. (See People v. Frye (1985) 166 Cal.App.3d 941, 947 [unlawful entry late at night and flight upon discovery sufficient to infer an intent to steal]; People v. Moody (1976) 59 Cal.App.3d 357, 363 [intent to steal could be inferred from entry into a locked home late at night, flight upon being discovered by the occupant, and flight from the police]; People v. Martin (1969) 275 Cal.App.2d 334, 339 [defendant entered through a broken window, failed to satisfactorily explain why he was at the medical office or why he fled when the police arrived].) Defendant also provided law enforcement with a false name while at the hospital, further evidencing his consciousness of guilt. (See People v. Liss (1950) 35 Cal.2d 570, 576 [providing a false name "was evidence tending to show a consciousness of guilt"].)
Finally, defendant possessed a knife and a window punch or ice pick, the latter of which he candidly admits "may well have been employed . . . to punch in a window for entry." Nevertheless, he argues that because such a tool would not have aided in taking property once inside, possession of one does not evidence an intent to steal. This argument is specious. Defendant's possession of one or more burglary tools at the time of his arrest is obviously consistent with an intent to enter the house to steal. That is the purpose of a burglary tool. (See People v. Frye, supra, 166 Cal.App.3d at p. 947 ["A knife, although not a sophisticated burglary tool, has purposes consistent with entering a vacant home to steal"].)
The evidence was more than sufficient to establish defendant entered the victim's house with the intent to steal.
II
Flight Instruction
Defendant also claims the trial court prejudicially erred and violated his federal constitutional rights by instructing the jury with CALCRIM No. 372 because there was no substantial evidence to support a conclusion his departure from the house was motivated by a consciousness of guilt rather than self-preservation. We disagree.
Section 1127c provides: "In any criminal trial or proceeding where evidence of flight is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine." The jury was so instructed in this case.
"[A] flight instruction 'is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his [or her] movement was motivated by a consciousness of guilt.' [Citation.] ' " '[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.' " ' [Citation.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
Here, defendant physically ran from the crime scene and reached the neighbor's darkened porch several houses away. He acknowledges in his briefing on appeal "[t]here can be no doubt that [he] was in flight," but argues, "his primary motive was to avoid being shot." Even if we accept defendant's characterization as to what his primary motive was, this does not negate the prospect he simultaneously possessed a motive to avoid being apprehended for burglary. The test does not require us to determine which of two potential motives was "primary," but simply requires us to determine whether or not the circumstances suggest defendant's conduct was motivated by a consciousness of guilt. Defendant ran from the scene of a crime and ducked into a darkened porch. That these actions suggest defendant did so to avoid apprehension is also supported by the fact that when law enforcement officers arrived a short time later, he refused to talk to them and then provided them with a false name at the hospital. "Alternate explanations for flight conduct," such as defendant's argument he ran out of fear for his life, "go to the weight of the evidence, which is a matter for the jury, not the court, to decide." (People v. Rhodes (1989) 209 Cal.App.3d 1471, 1477.)
The trial court did not err in providing the jury with CALCRIM No. 372.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
MURRAY, J.