Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F09409
ROBIE , J.
Defendant Curtis Lee Hicks, Sr., was charged with three counts of burglary and six counts of receiving stolen property. A jury found him guilty of two counts of burglary and five counts of receiving stolen property. He argues there was insufficient evidence to support the jury’s finding that he was guilty of first degree burglary of Mark Kerstiens’s residence.
We disagree. Finding substantial evidence supporting the jury verdict, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The night of October 26, 2004, between 5:00 and 9:00 p.m., Bo Lau was arriving home when he saw a dark-colored, late-model sedan in the front part of his driveway. He thought it was unusual, so he went down the block, turned around, and came back before parking his car in the driveway. There was a man standing outside the car and a woman sitting in the front passenger seat. The rear end of the car was sagging to the ground as though it was weighted. Lau approached the man and asked if he was having car trouble. The man said they had run out of gas but they had friends a few houses down the street and he was going to push the car there. Lau went inside his house and did not think about the incident until he later felt “weird,” went outside to look for the car, and it was gone.
At around 8:20 that night, Bo Lau’s neighbor, Jason DiBernardo, got home from work and found his front door slightly open. He thought his roommate, Mark Kerstiens, might not have closed it all the way or the wind had blown it open. Once inside, he realized someone had been there. Kerstiens’s television was missing from his bedroom and the room was in shambles. DiBernardo called Kerstiens, who came home. The two called the police and, while waiting for the police to arrive, went to their neighbors’ doors to ask if anyone had seen anything. Lau told DiBernardo and Kerstiens about offering to help the people near the driveway earlier that night. Lau gave one statement to the police that same night and another statement at a later date.
After looking through the whole house, the roommates, including the third roommate, Amber Adams, were missing a collector’s edition Fender Stratocaster guitar, a five-string ESP bass guitar, a Jasmine acoustic guitar, an ESP HP 300 baritone guitar, a Fossil watch, a 27-inch television, a compact disc changer with 200 compact discs inside, a jewelry box, a Roland speaker, an Xbox game system with a game inside, a Hewlett Packard multi-function printer, a video cassette recorder, a stereo receiver, and a hat that said “I’m a Monster Musician.”
The next day, Kerstiens, who worked at a music store, looked up the serial numbers for the stolen guitars. Hoping that someone might be caught trying to sell the guitars, Kerstiens faxed the serial numbers and pictures of the guitars to several local music stores. Around noon, Guitar Center called Kerstiens to let him know that someone was currently in the store trying to sell two of the stolen guitars. Kerstiens went to the store, excited to get his guitars back.
Defendant Curtis Lee Hicks, Sr., and his codefendant, Jolene Kathel Maynard, were attempting to sell the ESP HP 300 baritone guitar and the Jasmine acoustic guitar to the Guitar Center. Defendant left the store after negotiating the price, about one-half hour to hour into the transaction. When Detective Eric Pahlberg and Sergeant Freeworth of the Sacramento County Sheriff’s Department arrived, defendant was asleep in the car at the Guitar Center parking lot. In the car, Detective Pahlberg found the Hewlett Packard multi-function printer, the Roland speaker, a CD case with 70 CD’s, and a hat that said “I’m a Monster Musician.” Kerstiens was present and identified his belongings when the detective searched the car. Also in the car, which was registered to Maynard, mounted on the dashboard, was a picture of defendant and Maynard. When Detective Kevin Warren searched defendant, he found DiBernardo’s blue Fossil watch in defendant’s jacket pocket. Detective Warren also searched the room in Maynard’s grandmother’s house where she and defendant lived. At the time of the arrest, Detective Warren described defendant as five feet five inches tall, weighing 120 pounds, and having his hair in an Afro.
Kerstiens spoke to Lau about going to the Guitar Center and recovering some of the stolen items from the man and woman there. Sometime after that conversation, Lau gave his second statement to the police. The night after the burglary, the same day defendant and Maynard were arrested at the Guitar Center, Officer Ken Wight searched Kerstiens’s house for fingerprints. Although some fingerprints were found, they did not match either defendant or Maynard.
When the case went to trial, the jury heard specifically about Lau’s various statements and the inconsistencies therein. Lau’s testimony is somewhat confusing. In his first statement, Lau seems to have told police that he saw at least two black guys in a dark-colored, late-model Cadillac with a white top and tinted windows. He described the man he spoke to as six feet tall, wearing a heavyset jacket, with hair very close to his head or wearing a hat. In his second statement, Lau said there was one man and one woman. After defendant and Maynard were arrested, officers showed Lau separate photographic lineups for both defendants and he was unable to identify anyone.
At trial, Lau elaborated on his prior statements. He said the driveway was sloped and the man he spoke to that night had been higher on the slope. He also, for the first time, was shown pictures of the car defendant had been asleep in when he was arrested. Lau recognized that car as the car he had seen near the driveway the night of the burglary. Although Lau never made a positive identification of defendant, in court or out of court, he clearly identified the car as the one he saw that night.
DISCUSSION
Defendant argues that Bo Lau’s testimony offered “no credible evidence that the person [he] saw was [defendant].” He also argues that because the fingerprints found at the house did not match defendant, Lau’s testimony was “the only direct evidence supporting [defendant]’s conviction [for] the Kerstiens burglary.” Defendant admits that a criminal defendant may be convicted for burglary based on possession of recently stolen property with “slight corroboration in the form of statements or conduct of the defendant tending to show his guilt.” (People v. McFarland (1962) 58 Cal.2d 748, 754.) However, defendant contends that the evidence introduced at trial created “far too weak an inference” to sustain the conviction. We find there was sufficient evidence to support the conviction based on Lau’s testimony identifying a man that could have been defendant, and positively identifying the distinctive car, coupled with defendant’s arrest while in possession of the recently stolen property.
When a defendant challenges the sufficiency of the evidence to support a criminal conviction, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which 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. Johnson (1980) 26 Cal.3d 557, 578.) To prove defendant was guilty of burglary in the first degree, the prosecutor had to prove beyond a reasonable doubt that defendant entered an inhabited building with the intent to commit theft. (CALCRIM Nos. 1700, 1701.) Defendant challenges only the sufficiency of the evidence establishing that he was the burglar.
Defendant argues that the only direct evidence identifying him as the burglar was Lau’s testimony; however, direct evidence is not required to prove a defendant is guilty of a burglary. (People v. McFarland, supra, 58 Cal.2d at p. 756.) A jury can find a defendant guilty based solely on circumstantial evidence if convinced beyond a reasonable doubt of the elements of the crime. (Ibid.)
Although an eyewitness identification of a defendant is not necessary to sustain a burglary conviction (People v. Flynn (1887) 73 Cal. 511, 512-513), here Lau did testify about the man and woman he saw that night. “The sufficiency of the evidence of identification is generally a question for the trier of facts.” (People v. Yates (1958) 165 Cal.App.2d 489, 494.) Defendant’s arguments go to the weight and reliability of Lau’s testimony.
While defendant argues all of the aspects in which Lau’s description of the man he saw did not match defendant, there are several aspects in which a jury could have reasonably found did match defendant. Lau said the man he spoke to had about the same skin tone as defendant, and that the man was wearing a “big heavyset jacket” that could reasonably have been the puffy jacket defendant was wearing when arrested. Although Lau described hair close to the man’s head or a hat and defendant had an Afro when arrested, the description is not necessarily inconsistent with defendant. Furthermore, while Lau may not have specifically identified defendant, he was very clear in identifying the distinctive car. Defendant was linked to the car at trial not only because he was found sleeping in its driver’s seat, but by the photograph of defendant and Maynard mounted on the car’s dashboard and their ongoing relationship.
An appellate court’s power “begins and ends with a determination as to whether there is any substantial evidence to support [a jury’s finding]; . . . we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.” (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370, disapproved on another ground in Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866, fn. 2.) Given that only slight corroboration is necessary to support an inference from defendant’s possession of the stolen property that defendant was the burglar, the evidence above is sufficient to support the conviction. (See People v. McFarland, supra, 58 Cal.2d at p. 756.)
Defendant argues that People v. Gibbons (1949) 93 Cal.App.2d 28 controls this case because of the uncertain identification of the perpetrator. There, however, the victim of the robbery positively said the defendant was not the man who robbed him. (Id. at p. 31.) Furthermore, the defendant in Gibbons was not found with any property taken in the robbery so the permissive inference that allows a guilty verdict with slight corroboration was not applicable. (Id. at pp. 29-32.) Gibbons is distinguishable and does not require a different outcome here.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P.J., MORRISON , J.