Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA051608. Richard Kirschner, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Kathy S. Pomerantz, Deputies Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
On January 29, 2006, defendant and appellant Ignacio del Rio (defendant) burglarized the apartment of Lucille Alexander by knocking on Ms. Alexander’s front door, and then later entering the apartment through a rear bedroom window, in a manner similar to several other burglaries or attempted burglaries committed by defendant. The next day, Ms. Alexander’s next door neighbors, Lydia Mendoza and Phil Mosser, discovered that the screen to their kitchen window had been bent from the outside, and that a chair had been pushed against the wall outside the apartment beneath the window. Nothing was missing from Ms. Mendoza’s apartment. No eyewitness testimony, fingerprint evidence or other physical evidence directly connected defendant to the bent window screen. A jury convicted defendant, inter alia, of the attempted burglary of Ms. Mendoza’s apartment. (Pen. Code, §§ 664/459).
All statutory references are to the Penal Code unless stated otherwise.
The sole issue on this appeal is whether sufficient evidence supported the identification of defendant as the person who attempted to burglarize Ms. Mendoza’s apartment. We conclude that, under the applicable standard of review, a reasonable jury could infer from the evidence that defendant was that person. We therefore affirm the judgment.
BACKGROUND
Because this appeal relates only to one of a number of counts—count 17—we set forth in detail only the facts related to that count. On appeal, “we must view the evidence in the light most favorable to the verdict and presume the existence of each fact that a rational juror could have found proved by the evidence. [Citation.]” (People v. Rundle (2008) 43 Cal.4th 76, 139-140, fn. 30, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
On January 29, 2006, Ms. Alexander managed and lived in an apartment building on Orange Grove Avenue in South Pasadena. Ms. Alexander’s apartment was next door to the apartment occupied by Ms. Mendoza and Mr. Mosser. Ms. Alexander’s backyard abutted Ms. Mendoza’s; the back doors of the two apartments were approximately six feet apart.
At approximately 12:30 p.m. that afternoon, Ms. Alexander’s doorbell rang. Defendant was at the door. Defendant told Ms. Alexander that he was looking for someone named Chris who lived in the building. Ms. Alexander told defendant that no one named Chris lived in the building. Defendant left.
A few minutes later, Ms. Alexander heard a noise from the back of her apartment. She went out her back door and saw defendant entering the apartment through her bedroom window. Ms. Alexander yelled and defendant fled. Ms. Alexander subsequently identified defendant from a photo lineup and in open court as the perpetrator.
Also on January 29, 2006, Ms. Mendoza and Mr. Mosser left their apartment at approximately 8:30 a.m. The doors and windows were locked when they left, and the screen on their kitchen window was undamaged. They returned at approximately 7:30 p.m. The next morning, as Mr. Mosser was getting ready for work, he noticed that the screen on the kitchen window “had been bent, like someone tried to get in....” Someone also had moved a chair from the side of the building and placed it against the outside wall beneath the kitchen window. Nothing was missing from Ms. Mendoza’s apartment.
The prosecution introduced evidence that defendant perpetrated a total of six burglaries or attempted burglaries between January 23 and February 16, 2006. With respect to four of these, defendant exhibited a similar pattern of first knocking on the door or ringing the doorbell, and then entering or attempting to enter the home through an unlocked door or window. The prosecution also introduced evidence that stolen property and burglary tools were recovered from defendant’s pickup truck, and that defendant had rented self-storage lockers that contained large amounts of stolen property and other incriminating items, such as equipment used to melt gold and a book on how to defeat alarm systems.
Defendant presented no evidence.
B. Procedural Background
In a second amended information, defendant was charged with three counts of first degree burglary (§ 459), three counts of attempted first degree burglary (§§ 664/459), two counts of receiving stolen property (§ 496, subd. (a)) and one count of attempted escape (§§ 664/4532, subd. (b)(1)). The burglary of Ms. Alexander’s apartment was charged as count 6 of the information; the attempted burglary of Ms. Mendoza’s apartment was charged as count 17 of the information. Defendant was convicted by a jury on all counts.
The trial court granted defendant’s motion for a new trial on the attempted escape charge, and the charge was subsequently dismissed pursuant to section 1385.
After finding that defendant was cooperating with police in recovering stolen property, the trial court denied probation and sentenced defendant to a total of seven years and four months in state prison. The trial court selected count 1 (burglary) as the base count, and sentenced defendant to the upper term of six years. The trial court sentenced defendant to two consecutive terms of eight months each (one third of the mid term) on his convictions for attempted burglary on counts 2 and 3. The trial court sentenced defendant to concurrent terms of two years each on his remaining convictions for burglary (low term), attempted burglary (mid term) and receiving stolen property (mid term). The trial court imposed a restitution fine of $200; a parole revocation restitution fine of $200, stayed; and a $20 court security fee for each of defendant’s convictions, for a total of $160. Defendant was awarded 1045 days of presentence credit, consisting of 909 days of actual custody and 136 days of conduct credit.
DISCUSSION
A. Standard of Review
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.) “We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 919.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “We ‘must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]’ [Citation].... ‘[I]t is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]’” (Id. at pp. 357-358.) “The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
B. Sufficient Evidence
Defendant challenges only the sufficiency of the evidence relating to identity—that is, the evidence that he was the person who attempted to enter Ms. Mendoza’s apartment through the kitchen window. Defendant argues that, although the evidence might give rise to a suspicion that defendant was the perpetrator, it was insufficient to prove his guilt beyond a reasonable doubt. The People counter that the circumstantial evidence was sufficient to connect defendant to the crime and to prove his guilt beyond a reasonable doubt. Neither party cites any case factually analogous to this one.
It is axiomatic that proof of mere suspicious circumstances is not sufficient to sustain a verdict beyond a reasonable doubt. (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Briggs (1967) 255 Cal.App.2d 497, 499-501; People v. Gibbons (1949) 93 Cal.App.2d 28, 32; People v. Draper (1945) 69 Cal.App.2d 781, 786.) “Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” (People v. Redmond, supra, 71 Cal.2d at p. 755; accord, People v. Samuel (1981) 29 Cal.3d 489, 505.) “In any given case, one ‘may speculate about any number of scenarios that may have occurred.... A reasonable inference, however, “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶]... A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.”’” (People v. Cluff (2001) 87 Cal.App.4th 991, 1002; accord, People v. Tripp (2007) 151 Cal.App.4th 951, 959.)
Nevertheless, “‘“[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.”’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 504; accord, People v. Bean (1988) 46 Cal.3d 919, 933.) “‘Circumstantial evidence is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact....’ [Citation.]” (People v. Tripp, supra, 151 Cal.App.4th at p. 956.) “Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal. [Citation.]” (People v. Zamudio, supra, 43 Cal.4th at p. 358, citing People v. Kraft (2000) 23 Cal.4th 978, 1054.)
“‘Burglary may be proved by circumstantial evidence; it is not necessary that a witness actually see the defendant breaking and entering the premises....’ [Citation.]” (People v. Hinson (1969) 269 Cal.App.2d 573, 577.) “Identity is a question of fact for the trial court [citations]....” (Id. at p. 578.)
In People v. Prince (2007) 40 Cal.4th 1179, for example, the defendant was convicted of several murders and other crimes, including the attempted burglary of an apartment occupied by Stephanie Squires and Sarah Canfield on April 25, 1990. (Id. at p. 1255.) On that day, Ms. Squires saw the defendant, an African-American man, follow her to the pool in her apartment complex. Ms. Squires later left the pool area and returned to her apartment. A neighbor saw an unidentified African-American man walk up the stairs to Ms. Squires’s apartment and try the door handle. (Id. at pp. 1196, 1255.) That was all of the evidence submitted specific to the April 25 crime.
On April 28, Ms. Squires’s roommate, Ms. Canfield, heard a knock at the apartment door and saw the door handle moving. She looked out and saw the defendant standing at the door. The defendant’s car was seen leaving the apartment complex parking lot. (People v. Prince, supra, 40 Cal.4th at pp. 1196, 1255-1256.) Other crimes of which the defendant was convicted also involved the defendant attempting to gain entry to a victim’s residence by trying the front doorknob, and several crimes were perpetrated against young women while or shortly after the victim was sunbathing near her residence or exercising at a particular local gym. (Id. at pp. 1191 [count 1], 1194 [counts 5 and 6], 1196-1197 [count 9], 1198 [count 12], 1200-1201 [count 16], 1202 [counts 19 and 20], 1203 [counts 22 and 23], 1203-1204 [count 24], 1204 [count 26], 1204-1205 [count 27].)
The Supreme Court held the evidence was sufficient to sustain the defendant’s attempted burglary conviction for the April 25 crime. (People v. Prince, supra, 40 Cal.4th at pp. 1255-1256.) The Supreme Court stated, “In the first [April 25] incident, Stephanie Squires recognized defendant... when he followed her to the pool at the... apartment complex. On both April 25 and April 28, 1990, an African-American man climbed the stairs to Squires’s apartment and tried the door handle. Canfield identified defendant as the person who, on April 28, 1990, appeared at her door. Other evidence established that defendant’s vehicle was seen departing from the parking lot soon after the second incident. A jury reasonably could infer, particularly in light of the modus operandi involved in many of the other crimes,that the man who tried the door on both occasions was defendant.” (Id. at pp. 1255-1256; see also Evid. Code, § 1101, subd. (b) [evidence of other crimes admissible to prove identity]; People v. Maury 30 Cal.4th 342, 397-398 & fn. 11 [evidence of similarities among victims of crimes was probative of defendant’s identity as perpetrator]; People v. Champion (1995) 9 Cal.4th 879, 927 [defendant’s participation in similar robbery and murder after charged offense was probative of defendant’s identity as perpetrator], overruled on another ground as stated in People v. Combs (2004) 34 Cal.4th 821, 860; People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2 [“Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator”].)
In this case, there was evidence that defendant committed at least four burglaries or attempted burglaries in a similar manner, first knocking on the door or ringing the doorbell and then entering the victim’s home through an unlocked door or window. (See Evid. Code, § 1101, subd. (b) [other crimes to show identity].) There was also evidence that defendant committed a total of six burglaries or attempted burglaries within a four-week period between January 23 and February 16, 2006, including two crimes on January 29 and three crimes on February 16. A large amount of stolen property, burglary tools and other incriminating items (such as equipment used to melt gold and a manual on how to defeat alarm systems) were recovered from defendant’s pickup truck and storage lockers. From such evidence, a reasonable jury could infer that defendant was a burglar by vocation, and not merely an opportunistic thief.
Ms. Mendoza testified that she and Mr. Mosser were away from their apartment from 8:30 a.m. to 7:30 p.m. on January 29; that the screen on the kitchen window was undamaged when they left that morning; and that Mr. Mosser discovered the damage to the screen the next morning as he was getting ready for work. A reasonable jury could infer from this testimony that the damage to the screen occurred while the apartment was empty on January 29. Ms. Alexander testified that, on the afternoon of January 29, consistent with defendant’s method of operation, defendant rang her doorbell; a few minutes later, she confronted defendant as he climbed through a rear bedroom window of her apartment. The evidence thus placed defendant mere yards from Ms. Mendoza’s kitchen window at a time when the damage to the window screen likely occurred. A reasonable jury also could infer that the attempt to gain entry to Ms. Mendoza’s apartment by climbing through a window at the rear of the apartment was consistent with defendant’s established method of operation.
The prosecution thus submitted evidence that defendant was present at the scene at about the time the attempted burglary occurred; that defendant, as a professional thief, had a motive to commit the burglary; that defendant had the opportunity to commit the burglary, due to the absence of Ms. Mendoza and Mr. Mosser from the apartment; and that the attempted burglary was effected in a manner similar to other crimes committed by defendant. The evidence was sufficient to permit a reasonable jury to conclude that defendant was the burglar. (See People v. Prince, supra, 40 Cal.4th at pp. 1255-1256.)
Defendant has not challenged the sufficiency of the evidence with respect to the other elements of the attempted burglary charge—that is, that he attempted to enter Ms. Mendoza’s apartment, and that he did so with the intent to commit theft. (§§ 664/459; People v. Prince, supra, 40 Cal.4th at p. 1255.) We have nevertheless reviewed the entire record and conclude that substantial evidence supported the jury’s finding of each of these elements. The damage to the window screen and the placement of the chair beneath the window were sufficient to establish that defendant attempted to enter the apartment through the kitchen window. Evidence that defendant committed numerous other burglaries and attempted burglaries—including the burglary of Ms. Alexander’s apartment that same day—plus defendant’s possession of large amounts of stolen property and burglary tools, was sufficient to establish defendant’s intent to steal. We therefore affirm defendant’s conviction for the attempted burglary of Ms. Mendoza’s apartment.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.