Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, William Sterling, Judge
Joy Abigail Maulitz, under appointment by the Court of Appeal for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
COFFEE, Judge
Joe Diaz appeals from the judgment of conviction of second degree burglary. (Pen. Code, § 459.) We appointed counsel to represent him in this appeal. After counsel's examination of the record, she filed an opening brief raising no issues and requesting that this court independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436. On August 19, 2010, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. We received a response from him challenging the sufficiency of the evidence to support his conviction and asserting that the jury failed to conduct proper deliberations. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 123-124, we present a factual and procedural summary of the case and a brief discussion of his contentions.
FACTS AND PROCEDURAL HISTORY
In 2008, Joseph Torres operated Buena Vista Furniture, from showrooms at 5332 and 5338 Alhambra Boulevard in El Sereno. His landlord, Garrett Calhoun, occupied the building at 5330 East Alhambra. On December 21, a fire destroyed the rear, south wall of the 5332 Alhambra showroom building, and part of its roof. Within a day, a construction company sealed the 5332 building with plywood, and surrounded it with seven-foot fencing.
On February 1, 2009, at about 9 a.m., Calhoun saw an unfamiliar SUV parked in the alley behind the 5332 building. He approached the SUV and heard male voices and "things being moved around inside" the 5332 building's showroom. The 5332 building was missing a plywood board. Calhoun went to his office and called 911 while watching two men emerge from the 5332 building with chairs that they placed in the SUV. After loading the SUV, the two men entered it; a third man who had been standing nearby also entered it and rode with them as the SUV headed toward Alhambra and Valley Boulevards. Calhoun never saw anyone retrieve furniture from any place except the 5332 building. He gave the 911 operator the number of the SUV's license plate. Approximately 30 minutes later, police officers located and stopped the SUV on Valley Boulevard. Appellant, two other men, and at least six chairs were in the SUV. Within an hour, Calhoun identified appellant as the man he saw near the SUV, and identified appellant's companions as the two men who had emerged from the 5332 building with chairs.
DISCUSSION
"In resolving sufficiency of the evidence claims, '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.' [Citation.]" (People v. Gomez (2008) 43 Cal.4th 249, 265.) It is the jury's role "'"to determine the credibility of... witness[es] and the truth or falsity of the facts upon which a determination depends...."' [Citation.]" (People v. Barnes (1986) 42 Cal.3d 284, 303, last ellipsis in original.) It does not matter that the evidence might also support a contrary finding. (See People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
In challenging the sufficiency of the evidence, appellant poses arguments like those he raised below. For example, he argues that no tools were recovered from the SUV at the time of the arrest; it is possible that someone else entered the 5332 building before he and his companions arrived and moved furniture outside the building; the eyewitness never saw appellant enter or exit that building; and he never saw anyone removing plywood from it. Conflicts in the evidence and the lack of physical evidence connecting a defendant to a crime do not preclude a conviction. A piece of plywood had been moved to allow access to the 5332 building. Appellant was at the burglary scene, standing where he could serve as the lookout for his codefendants as they removed furniture from the 5332 building. Just after Calhoun approached the burglary scene, appellant and his codefendants left in the SUV. Shortly after Calhoun reported the burglary, police located the SUV, which carried appellant, his codefendants, and chairs from the 5332 building. A reasonable trier of fact could have found that such evidence proved beyond a reasonable doubt that appellant was guilty of the burglary as an aider and abettor. (Pen.Code, § 459; see People v. Champion (1995) 9 Cal.4th 879, 928, overruled on another point in People v. Combs (2004) 34 Cal.4th 821, 860.)
Appellant also argues that the jury did not comply with its duty to consider the evidence as it applies to each defendant separately. We disagree.
The jury began its deliberations at 2:25 p.m. on December 14, 2009; at 3:05 p.m. that day, it informed the court that that it had reached its verdicts. The evidence against appellant is overwhelming and straightforward. He and his companions were charged with one commercial burglary that an eyewitness described at trial and during a 911 call, as it occurred. Only five witnesses testified at trial, including one defense witness. It took less than eight hours to present the evidence. One codefendant testified that they only moved chairs from outside the 5332 building into the SUV. Calhoun testified that he did not see the defendants recover chairs from any place other than the inside of that building. This was essentially a credibility contest with no dispute that appellant was with his codefendants during and directly after the burglary. The jury apparently rejected the defense theory. Appellant's claim that the jury could not have deliberated for more than 15 minutes altogether is based on his assumption that "the election of a foreperson alone should take at least 15 minutes." It is also based on the mistaken assumption that a defendant's "right to have his case decided by a jury... necessarily include[s] the right to compel jurors to discuss issues that they have chosen to decide without discussion." (People v. Bowers (2001) 87 Cal.App.4th 722, 734.) The jury was instructed with CALCRIM No. 203 to "separately consider the evidence as it applies to each defendant." When polled by the court, each juror responded that the verdict was his or her own as "to each defendant."
We are satisfied that appellant's counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P. J., YEGAN, J.