Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD209224, William H. Kronberger, Jr., Judge.
O'ROURKE, J.
A jury convicted Willard Earl Mitchell of residential burglary (Pen. Code, §§ 459, 460), and found that a person other than an accomplice was present in the residence during the burglary (Pen. Code, § 667.5, subd. (c)(21)). The trial court found true allegations that Mitchell suffered two out-of-state convictions constituting strikes (Pen. Code, §§ 667, subds. (b)-(i), 668, 1170.12) and prior serious felonies (Pen. Code, §§ 667, subd. (a)(1), 668, 1192.7, subd. (c)). The court sentenced Mitchell to a total term of 14 years in state prison consisting of the low term of four years for the burglary conviction and two consecutive five-year terms for the prior serious felony convictions. Mitchell contends his burglary conviction violates his Fourteenth Amendment right to due process of law because the evidence was not sufficient to permit a trier of fact to find beyond a reasonable doubt that he acted with the intent to commit theft. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of September 21, 2007, Tirhas Issac and Jose Abarca, who are both deaf, were in their apartment on J Street in San Diego putting away their child's laundered clothing. They had a television set in their apartment on a stand right by their front window. Issac had gotten a bottle for their baby and was walking out of the kitchen into the living room, when she saw Mitchell bent down with his right hand or arm coming through the bottom right screen of the front window. She assumed he was trying to get to the doorknob, which was immediately to the right of the window. Issac screamed and ran into the other room to Abarca. Issac had a clear view and saw Mitchell's arm just a few feet away. A gas lamp was turned on outside the door of their apartment at the time. Before the incident, the screen had been intact.
Abarca handed Issac their baby and went to the living room where he saw Mitchell squatted down at the window with the screen pulled up. Abarca was able to see Mitchell's face and made eye contact with him. He opened the door and gestured for Mitchell to go away. According to Abarca, Mitchell stood there looking a "little confused" and like someone on drugs. When Mitchell finally left, Abarca started to follow him. Abarca looked back at his apartment and when he turned back around, Mitchell was gone. Abarca then saw the apartment complex security guard.
Paul Mahaley was working as the security guard at the apartment complex that night. That evening, after Mahaley began his 9:00 p.m. shift, Abarca flagged him down on J Street and urgently tried to communicate with him. Mahaley followed Abarca through a gate to an apartment in the complex and Abarca pointed at the front window, which had a hole punched out in the screen. The gate did not have a lock. Mahaley unsuccessfully tried to communicate with Abarca. They then walked to the second floor, where they met with others who tried to interpret for Abarca. While they spoke, Mitchell walked behind Mahaley through a door within the complex and told him he was looking for the exit. Mahaley called police and the group waited about an hour for officers to respond. Mitchell waited with them during that time. Finally, Mahaley saw a police car and waived it down.
At about 9:30 p.m., San Diego police officer Jeffrey Gross was responding to a call when he was flagged down by Mahaley. He saw Mitchell with two security guards standing in the street. Mitchell was not handcuffed or restrained. The officer did not notice any scratches on Mitchell's fingers or the back of his hand or arm. He did not dust the screen, television console or the apartment's door latch for fingerprints, and he found no knife or other cutting instrument on Mitchell or around the area. Officer Gross spoke with Abarca in the patio area of his apartment and had him write on a piece of paper what had happened. The officer did the same with Issac. Issac showed Officer Gross and Mahaley what had happened, pointing to the window and demonstrating as if a hand went through it but was snatched back.
DISCUSSION
Mitchell contends the evidence of his entry into Abarca and Issac's apartment and his conduct after the entry cannot as a matter of law support a reasonable inference that he intended to commit theft; that on the evidence presented, no rational trier of fact could find proof of such intent beyond a reasonable doubt. He points out there was no direct evidence as to what was in his mind when his hand went through the apartment window, and he maintains all of the circumstantial evidence suggests the absence of criminal intent. Specifically, Mitchell argues the evidence shows that when Abarca confronted him, he did not flee or exhibit a combative demeanor but rather remained there, looking confused, and then stayed within the apartment complex unrestrained for an hour until police arrived. Relying on the principle that an inference is not reasonable if it is based on speculation, Mitchell asserts that all of the prosecutor's theories as to why he put his hand inside the window are mere speculation, as is the theory that he intended to commit theft.
I. Standard of Review
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Kraft (2000), 23 Cal.4th 978, 1053-1054; see also People v. Ceja (1993), 4 Cal.4th 1134, 1139.)
In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (People v. Stewart (2000), 77 Cal.App.4th 785, 790.) We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. (People v. Redmond (1969), 71 Cal.2d 745, 755; see also People v. Stewart, at p. 790; People v. Olea (1971), 15 Cal.App.3d 508, 513.)
II. Analysis
Burglary is committed when a "person... enters any house, room, apartment... or other building... with intent to commit grand or petit larceny or any felony[.]" (Pen. Code, § 459; People v. Montoya (1994), 7 Cal.4th 1027, 1041; see People v. Lawrence (2000), 24 Cal.4th 219, 232-233.) It is settled that the essence of the offense is entry with the proscribed intent; such entry constitutes the completed crime of burglary regardless of whether any felony or theft actually is committed. (People v. Allen (1999), 21 Cal.4th 846, 863, fn. 18; see also Montoya, at pp. 1041-1042.) It does not matter whether a person who enters a house with larcenous or felonious intent does so through a closed door, an open door, or a window; the entry with the requisite intent constitutes the burglary. (People v. Nunley (1985), 168 Cal.App.3d 225, 231.)
"[I]n reviewing the sufficiency of evidence to support a burglary finding, the requisite intent is rarely demonstrated by direct proof, and as a result, may be inferred from facts and circumstances. [Citation.] As a result, evidence such as theft of property from a dwelling may create a reasonable inference that there was intent to commit theft at the time of entry." (In re Leanna W. (2004) 120 Cal.App.4th 735, 741; see People v. Lewis (2001), 25 Cal.4th 610, 643.)
However, an intent to steal may also be inferred from an unlawful entry without reasonable explanation of the entry (see People v. Jordan (1962), 204 Cal.App.2d 782, 786) or from flight after being discovered. (People v. Frye (1985), 166 Cal.App.3d 941, 947 [codefendant made an unauthorized entry into a vacant home at 1:00 a.m. and ran out the back door after a police officer yelled, " '[F]reeze' "; the "late hour and sudden flight upon discovery support the inference [he] entered with intent to steal"]; People v. Lopez (1967), 249 Cal.App.2d 93, 98.) Such intent may be inferred when the defendant is a stranger and enters a home at a late hour, without permission, and without announcing his intent. (People v. Swenson (1938), 28 Cal.App.2d 636, 639-640 [evidence was sufficient to prove a defendant entered a room with the intent to commit larceny because he entered the hotel room at 3:00 a.m. without authorization, knocking or giving a prior warning].) The intent to steal may be inferred from the totality of the facts and circumstances. (Frye, supra, at p. 947.) If the circumstances of a particular case and the conduct of the defendant reasonably indicate that his or her purpose in unlawfully entering a home is to commit larceny, a reviewing court will not disturb a guilty verdict on a burglary charge. (Swenson, supra, at pp. 639-640.)
It is, of course, settled that a conviction cannot be based on mere speculation and conjecture. (People v. Marshall (1997), 15 Cal.4th 1, 35 ["mere speculation cannot support a conviction"]; People v. Harvey (1984), 163 Cal.App.3d 90, 105, fn. 7 ["Substantial evidence means more than simply one of several plausible explanations for an ambiguous event"].) However, on the totality of the evidence here, a reasonable trier of fact could draw nonspeculative inferences that Mitchell had the requisite felonious intent when he reached inside Issac and Abarca's apartment. The incident did not occur in broad daylight, but at night. Neither Issac nor Abarca knew Mitchell, who scared Issac enough to cause her to scream. Both Issac and Abarca testified that before the incident their screen had been intact, and it is reasonable to infer based on the window's proximity to the front door that Mitchell broke through the screen with his hand to reach for the door knob. The television was close to the front window. A reasonable jury could infer by Mitchell's forced entry at night into a stranger's home, that he held the requisite intent to steal the television or something else of value. (People v. Swenson, supra, 28 Cal.App.2d at p. 639 ["[T]he intention with which an accused person enters the room of another individual without permission at an unusual hour of the night must be determined by the jury"].) Though Mitchell emphasizes he did not leave the premises, the evidence shows he did escape from Abarca as Abarca tried to follow him from the apartment.
The fact Mitchell appeared to Abarca to be confused when confronted and did not flee from the security guards does not convince us that the evidence is insufficient to find the requisite intent for burglary. Even if we were to agree that in the absence of stolen property, burglary tools or flight, a trier of fact may reasonably have concluded that Mitchell had some other motivation or intent for entering (i.e., to enter and beg Issac and Abarca for food) reversal is not warranted. (E.g., People v. Lewis, supra, 25 Cal.4th at p. 644.) As we have stated, a reviewing court's opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Id. at pp. 643-644; People v. Kraft, supra, 23 Cal.4th at pp. 1053-1054.) We will not substitute our judgment for that of the jury, which found Mitchell had felonious intent; our role on appeal is simply to determine whether its findings in support of the burglary convictions are supported by sufficient evidence. On this record, there is substantial circumstantial evidence supporting an inference that Mitchell acted with intent to commit theft.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.