Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC61878B
NEEDHAM, J.
Evelyn Iokua (Iokua) appeals from a judgment of conviction and sentence, contending that the evidence was insufficient to support her conviction for auto burglary (Pen. Code, § 460, subd. (b)). We will affirm the judgment.
Unless otherwise indicated, all statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL BACKGROUND
Iokua and co-defendant Zoe Eugenios (Eugenios) were charged with burglary of an inhabited dwelling (§ 460, subd. (a)) and burglary of an automobile (§ 460, subd. (b)). The residential burglary was alleged to be a serious felony within the meaning of section 1192.7, subdivision (c)(18).
The charges against Iokua proceeded to a jury trial in December 2006. The evidence at trial included the following.
A. Evidence at Trial
Thomas (or “J.R.”) Perez (Perez) testified that, around 10:00 a.m. on July 31, 2006, he picked up his girlfriend, Larissa Silva (Larissa), at 440 Grand Avenue in Half Moon Bay, where Larissa lived with her grandparents, Shirley and Dennis Silva. Perez was driving his 1997 Toyota Celica with tinted windows. According to Perez, about a half-hour later they headed to Bean Hollow Beach, which was about 15 miles south on Highway 1.
Because their last names are the same, we refer to Larissa and Shirley by their first names, for clarity and without disrespect.
By Perez’s recollection, they arrived at the beach around 11:00 or 11:30 a.m., or perhaps as late as 1:00 p.m. Perez parked on the side of Highway 1 near a path that led down to the beach. Larissa left her black Rocawear purse on the front passenger side floorboard of Perez’s car, believing it could not be seen though the tinted windows. Perez rolled up the windows and locked the doors. He did not see anyone in the general vicinity of the car.
Larissa testified that she saw Perez between noon and 1:00 p.m., they went straight to the beach, and it takes at most about 30-35 minutes to get to the beach from her house. By this account, they would have arrived at the beach between around 12:30 and 1:35 p.m.
Perez and Larissa walked to the beach. From that location, they could not see Perez’s car.
After about one-and-a-half to two hours (i.e. 12:30 p.m. or later), Perez returned to his car for some water and saw that the passenger side window had been removed and left on the ground. He went back to the beach and informed Larissa, who accompanied him to the car and found that her purse—containing her wallet with her driver’s license bearing the Grand Avenue address of the home she shared with Shirley and Dennis, her house keys, her black Samsung cell phone, money, and other items—was gone. Perez unlocked the car and placed the damaged passenger window in the back. Because Perez had no cell phone service at their location, he and Larissa drove north on Highway 1, intending to report the crime at a police station or by phone once within the cell phone’s service range.
Meanwhile, at about 1:00 or 1:30 in the afternoon, Shirley returned to her Grand Avenue home after shopping at a local Safeway Store for about an hour. She had locked the doors to her house before she left. She backed her car into the driveway and used her remote control to open the garage door. As she got out of the car to unload her groceries, she heard the front door of her house slam. She looked over and observed on the walkway near her garage two white females, who proceeded to walk past her. One of the females, later identified as Iokua, wore a baseball hat with her hair pulled back in a ponytail, a white tank top, tight Levis and a pink belt. The other female, later identified as Eugenios, was dressed similarly but wore a knit cap over her curly hair.
Shirley told the two women to stop, but they calmly kept walking, without responding. Iokua was holding a box, and Eugenios appeared to be holding something in her hands as well.
Shirley followed the two women, continuing to tell them to stop, as they walked to a blue Thunderbird parked in front of her house. Iokua got in the driver’s seat, Eugenios got into the passenger seat, and they drove away.
Shirley’s neighbor, Amanda Bettencourt, substantially corroborated Shirley’s account of these events. Bettencourt testified that Iokua or Eugenios was holding a bag, not a box.
Shirley saw the car’s license plate, repeated it to herself, ran into her house, and wrote it down. She called 911 and gave the dispatcher the license plate number and, perhaps, a description of the suspects’ car. She also noticed that drawers had been opened. By the time she ended the 911 call, the police arrived.
Half Moon Bay Police Officer Loubal testified that he received the dispatch at approximately 2:30 in the afternoon. He and officers Martinez and Carroll responded to Shirley’s home, where she provided a more detailed description of the two suspects and their car. In a quick walk-through of the house, Shirley discovered that numerous pieces of jewelry and personal property were missing, including family heirlooms and Larissa’s white puka shell jewelry. The officers determined that the house had not been entered forcibly.
Within about 10 minutes of the dispatcher’s report, San Mateo Sheriff’s Deputy Wallace stopped a blue Thunderbird with two suspects on Highway 1 at Pescadero Road, about a 15 minute drive from Shirley’s house. The car was coming from the direction of Half Moon Bay. Iokua was the driver, and Eugenios was in the passenger seat.
The sheriff’s deputies advised the Half Moon Bay police department of the stop, and Officer Loubal proceeded to that location and searched Iokua’s car. On the passenger side floorboard, Loubal found a black Rocawear purse, four cell phones, a large amount of jewelry in two bags, a jewelry box, a baseball hat, a knit cap, one black knit glove, and a large amount of other personal property.
In a search of Eugenios’ person, deputies found a “gray metal spring loaded window punch,” which is a burglary tool that can knock out a car window without shattering the glass.
Officer Carroll drove Shirley to the location where Iokua and Eugenios had been apprehended. Shirley identified Iokua as the female wearing the baseball hat who drove off in the blue car with the other female. Shirley was shown a bag of items found in Iokua’s car; she identified some of her jewelry and personal property, but also indicated there were items in Iokua’s car that did not belong to her.
At about this point, Perez and Larissa drove by and saw the police cars. They stopped to report the auto burglary, which they had discovered a few minutes earlier. Essentially, they informed Deputy Wallace and Officer Loubal that Perez’s car had been broken into and that Larissa’s purse and cell phone had been stolen. Larissa was “almost in tears.”
Officer Loubal retrieved the black purse and cell phones from Iokua’s car and showed them to Larissa. Larissa identified her purse and her black Samsung cell phone. She demonstrated that the cell phone was hers by turning it on and displaying photographs of her and her friends. The phone’s SIM card—the memory chip containing her list of regularly-used numbers—had been switched with a card from one of the other cell phones in Iokua’s car. The officer located Larissa’s SIM card in another cell phone, replaced the card in Larissa’s phone, and the phone again contained Larissa’s personal information.
Iokua and Eugenios were transported separately to the police station. After Eugenios was removed from the police car, the officers found a black knit glove where she had been seated. The glove contained Shirley’s missing diamond ring.
Shirley and Larissa returned home and determined that numerous items of jewelry and other personal property were missing. Later at the police station, they identified jewelry and other items found in Iokua’s car, including Larissa’s white puka shell jewelry. However, they also stated that many items of jewelry and other objects found in Iokua’s car did not belong to them.
Neither Shirley nor Larissa knew Iokua or had given her permission to take their possessions.
After the prosecution rested its case, the defense rested its case in reliance on “the state of the evidence.”
B. Verdict and Sentence
The jury convicted Iokua on both counts. The trial court later sentenced her to an aggregate term of two years eight months in state prison, with credit for time served. This appeal followed.
II. DISCUSSION
At trial, the prosecutor argued to the jury that Iokua could be found guilty of auto burglary if she directly perpetrated the crime or, alternatively, if she aided and abetted Eugenios’ commission of the crime. Iokua contends the evidence was insufficient to support her conviction under either theory.
In our review for substantial evidence, we “determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (People v. Frye (1998) 18 Cal.4th 894, 953.) We “may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
A. Direct Perpetrator Theory
A defendant’s mere possession of stolen property is insufficient in itself to establish that the defendant committed a burglary, as there must also be corroborating evidence of the defendant’s acts, conduct, or declarations tending to show her guilt. (People v. Citrino (1956) 46 Cal.2d 284, 288.) However, “[w]hen, as here, a defendant is found in possession of property stolen in a burglary shortly after the burglary occurred, the corroborating evidence of the defendant’s acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary convictions.” (People v. Mendoza (2000) 24 Cal.4th 130, 176.)
Respondent contends that substantial evidence supported the conclusion that Iokua herself perpetrated the burglary of Perez’s car. We need not decide whether the evidence was sufficient under this theory, however, because the evidence was sufficient under the alternative aiding and abetting theory. To this alternative theory we now turn.
B. Aiding and Abetting Theory
“[A] person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117; see § 31.) “[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.) The intent to aid the direct perpetrator must be formed before or during the commission of the offense. (See People v. Cooper (1991) 53 Cal.3d 1158, 1161, 1164 [getaway driver, who had no prior knowledge of the robbery but formed the intent to aid in carrying away the loot, may be convicted of robbery under an aider and abettor theory].)
The jury was so instructed, pursuant to CALCRIM number 401.
Substantial evidence supports Iokua’s conviction under an aider and abettor theory. The evidence was sufficient to show that Eugenios (if not Iokua) was the direct perpetrator of the auto burglary, particularly in light of the window punch and stolen property found in her possession, the use of the keys and address taken from Perez’s car to perpetrate the burglary of Shirley’s home, and her flight from the residence. Because, as we shall explain, the jury could have reasonably found that Iokua was present at the scene of the auto burglary, the jury could have also reasonably found that Iokua knew of Eugenios’ unlawful intent and intentionally aided her commission of the offense.
The evidence, which we must view in the light most favorable to the judgment, was sufficient to lead a jury to conclude that Iokua was present when Eugenios burglarized Perez’s car. (See People v. Rayford (1994) 9 Cal.4th 1, 23.) Since there was no forced entry into Shirley’s house, the keys and address stolen from Perez’s car must have been used to locate and gain entry into the home and, therefore, the auto burglary occurred before the residential burglary. The auto burglary could not have occurred much later than 30 minutes before the residential burglary, because the beach was about a 30-35 minute drive from Shirley’s house. Because Shirley saw Iokua and Eugenios leaving the scene of the residential burglary between 1:00 and 1:30 p.m., the auto burglary could have occurred between 12:30-1:00 p.m., with the residential burglary taking place around 1:00-1:30 p.m. This is consistent with the testimony of Perez, who estimated at one point that he arrived at the beach at 11:00 or 11:30 and discovered the auto burglary one-and-a-half to two hours later (11:00 or 11:30 plus one-and-a-half hours would be 12:30 or 1:00). Given this time frame, the 30-35 minutes needed to drive from one burglary scene to the other, and the fact that the address and keys taken from Perez’s car were used in the residential burglary, it is reasonable to conclude that Eugenios travelled directly from the beach (auto burglary) to Shirley’s home (residential burglary). And, because Eugenios departed Shirley’s home in Iokua’s car, it is also reasonable to conclude that she got there from the beach in Iokua’s car as well. On this basis, Iokua was at the beach with Eugenios when she perpetrated the auto burglary.
Iokua’s knowledge of Eugenios’ unlawful purpose and her intent to aid in Eugenios’ commission of the auto burglary were also indicated by the evidence. At the scene of the auto burglary, Iokua would have likely observed Eugenios removing Perez’s window with the window punch. In any event, Iokua drove Eugenios from the scene with the loot from Perez’s car, Eugenios had the burglar device used to remove Perez’s window, and the SIM card in Larissa’s Samsung cell phone was switched into another phone. Furthermore, Iokua’s mental state to aid in the auto burglary may be inferred from her intent to burglarize Shirley’s residence, as shown by the fact that she drove Eugenios to Shirley’s house, was seen leaving the residence with a box, refused Shirley’s request to stop, fled the scene with Eugenios, and was caught minutes later with items stolen from Shirley’s home. From this evidence, the jury could have reasonably found, beyond a reasonable doubt, that Iokua aided and abetted the auto burglary.
Iokua contends the elements of aiding and abetting were not established because there was no evidence that she and Eugenios were together when the auto burglary occurred. In particular, she urges, the testimony might be interpreted to devise a time frame in which Eugenios could have committed the car burglary alone and then met Iokua somewhere later before the two went to Shirley’s home. To support her argument, Iokua maintains that Larissa’s testimony about the timing of the events was more accurate than Perez’s.
Our role, however, is not to reweigh the evidence or to choose between conflicting inferences. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) We determine only if there was substantial evidence to support the judgment. As set forth above, the evidence was sufficient.
Lastly, Iokua argues the case is similar to In re David K. (1978) 79 Cal.App.3d 992 (David K.) and People v. Drolet (1973) 30 Cal.App.3d 207 (Drolet), because “the only connection between appellant and Eugenios . . . is that both were found together after the car burglary occurred.” David K. and Drolet are distinguishable from the matter at hand.
In David K., a robbery victim told police that the perpetrator and two companions were of Latin descent and in their mid-twenties. (David K., supra, 79 Cal.App.3d at p. 997.) About three hours later in another city, police stopped the vehicle that had been stolen from the victim. The perpetrator of the robbery was inside the car with two minors, including the Caucasian defendant, along with the victim’s stolen property. (Id. at pp. 997-998.) As Iokua notes, the court of appeal held there was insufficient evidence to establish that the defendant aided and abetted the robbery, stating: “To draw an inference from these facts that David was one of the three persons at the site of the robbery three hours earlier in another city would amount to pure speculation.” (Id. at p. 1000.) In a passage Iokua ignores, however, the court explained its reasoning as follows: “It is to be noted that [the victim] identified only the minor George as the actual perpetrator and gave a description to the police that all three persons involved were of Latin descent and were young adults. By no stretch of the imagination did appellant David, a Caucasian, fit into any of the categories.” (Ibid.) Critical to the analysis in David K., therefore, was the fact that the defendant did not match the description of the perpetrator’s accomplices.
David K. is thus distinguishable from this case. Because there was no description of the person(s) who burglarized Perez’s car, Iokua was not inconsistent with the description of the perpetrators of the auto burglary. In addition, David K. is distinguishable for another reason. In the matter before us, there was evidence that Iokua perpetrated another burglary with Eugenios, using the keys and address obtained from the earlier auto burglary. No such evidence of another mutual robbery, using the spoils of the robbery for which the defendant was charged, was admitted in David K.
The court in David K. emphasized that evidence of the defendant’s participation in another robbery was admitted solely to establish probable cause for his arrest, and was not received as evidence of his guilt of the charged crime. (David K., supra, 79 Cal.App.3d at p. 1001.)
In Drolet, the appellant was convicted of aiding and abetting the crime of oral copulation, performed by actors on a theatrical stage, based on the fact that he was the employer of the actors, the producer of the show, and the object of some suspicion that he arranged for the sex act to be performed. (Drolet, supra, 30 Cal.App.3d at p. 217.) The court of appeal reversed the conviction, because there was no evidence that the appellant had any knowledge that the actors were going to commit the offense. (Id. at pp. 217-218.) Here, by contrast, there was sufficient evidence for the jury to conclude that Iokua knew of the crime Eugenios was committing and assisted her in perpetrating it.
Iokua fails to establish reversible error.
III. DISPOSITION
The judgment is affirmed.
We concur: JONES, P. J., SIMONS, J.