Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MF030005B
DAVIS, Acting P. J.
A jury convicted defendant Melvin Michael Rasberry of first degree burglary. (Pen. Code, § 459.) Defendant admitted a prior strike and prison term. The trial court sentenced him to five years in state prison, imposed various fines and fees, and awarded 427 days credit (285 custody and 142 conduct).
Facts
Around 9:45 a.m. on September 19, 2006, Catherine H. drove from her home in Manteca, which she shared with her husband. She returned around 10:30 a.m. The house was in an orchard, and she noticed a car parked past their property line as she drove up.
We will use only the first name of the victim to protect her privacy.
The car, a silver Dodge Intrepid, was parked horizontally, which was unusual. As Catherine parked her car in the second driveway, she saw a Hispanic man in his 20s wearing her husband’s trench coat and running toward an orchard bordering the property. She grabbed her dogs and ran into the house through the side door. When she entered her house, Catherine saw another person, a Hispanic or dark-skinned man with highlighted hair running out of the house toward the gravel driveway.
Catherine put the dogs down and called 911. She saw that the side door had been broken open, the hall closet was open with clothes strewn about, and her computer and her husband’s guitar were on the back porch. A loaded rifle was missing, as was her husband’s trench coat and leather jacket, jewelry, their daughter’s PlayStation, and a cash box.
Around 10:45 a.m. that same morning, San Joaquin County Sheriff’s Deputy Kim Poeun was in the area around Highway 99 and Lathrop Road when she received a dispatch regarding a possible spotting of the car that had been parked next to Catherine’s property. She found a car matching the description of the car; it was traveling southbound on Austin Road. Deputy Poeun did a u-turn, activated the emergency lights, and followed the car, a Dodge Intrepid. While Deputy Poeun was following the car, she saw two people who appeared to be exchanging clothes inside. At one point, Deputy Poeun briefly lost sight of the vehicle.
The car pulled over about 30 seconds after Deputy Poeun activated her lights. When the car stopped, two men exited the car--one from the driver’s side rear and one from the front passenger side--and ran away. Defendant, who was the driver, remained in the car.
Items stolen from Catherine’s house were found in the trunk of the car. Two walkie-talkies were also found, one in the front and another in the rear of the car, both set to the same channel. Defendant helped Deputy Poeun find the missing rifle, which was at a nearby intersection.
Deputy Poeun advised defendant of his Miranda rights and defendant agreed to speak with her. Defendant told Deputy Poeun that a man who went by the name “Profit” had called defendant and asked him to pick up Profit and another person by the women’s prison. Defendant drove toward the prison and saw the two men walking on the road, where he stopped. The men opened the trunk and threw in some belongings, but defendant did not know what they placed there. They got in the car and he drove south until they noticed the police. His passengers asked him to evade, but defendant instead chose to pull over.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
After a second Miranda warning at the jail, defendant told Deputy Kenneth Kramer that Profit had called him repeatedly the night before asking for a ride home from partying. Profit called again the morning of September 19, asking defendant to pick up Profit on a road off Austin Road. He agreed, and turned off Austin onto a gravel road similar to the one at Catherine’s house. Profit was not there; defendant eventually found Profit and another man on Austin Road. The men placed items in the trunk before leaving with defendant. Just before defendant stopped the car for the deputy, one of the men rolled down a window and threw something out.
After his arrest, defendant helped another deputy find Profit, pointing out the residences where Profit’s family and girlfriend lived. Deputy Kramer admitted defendant was “extremely helpful” in giving information regarding the incident.
Defendant appeals.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief which sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Pursuant to that advisement, defendant filed a supplemental brief. In his brief, defendant contends he did not commit the crime and that he received ineffective assistance of trial and appellate counsel. We disagree.
We shall construe defendant’s claim of innocence as contending that there is insufficient evidence to support his conviction.
“To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.” (People v. Johnson (1993) 6 Cal.4th 1, 38.)
Penal Code section 459 provides in relevant part: “Every person who enters any house . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.”
To convict a perpetrator of burglary, the People must establish he “entered the premises with the intent to commit a felony or theft” (People v. Holt (1997) 15 Cal.4th 619, 669), and to convict an aider and abettor of a burglary, the People must establish defendant formed the intent to commit, encourage, or facilitate the burglary at any time before the perpetrator finally departs the structure. (People v. Montoya (1994) 7 Cal.4th 1027, 1044-1045, 1050-1051.)
In his supplemental brief, defendant contends that he, a Black man, was never positively identified by Catherine. He also contends that his cooperation with the sheriffs is consistent with his innocence, and the presence of only two walkie-talkies in the car is consistent with only two people participating in the robbery.
The People proceeded under an aider and abettor theory, and the jury was instructed on the theory. Defendant was found driving the car described by Catherine, which contained items stolen in the burglary. This is compelling evidence pointing to defendant aiding and abetting the burglary as the driver. While it is true that defendant does not match the description of either of the two men Catherine saw fleeing her house, two men were seen fleeing defendant’s car after it stopped. As the driver, there would be no reason for defendant to be inside the house and identified by Catherine.
Neither of the two different exculpatory stories defendant told to the authorities credibly rebuts the evidence of his guilt. Defendant’s stories do not explain how the men got to the house without his help, or how he managed to be at the house just when Catherine showed up. The two other burglars’ flight from the house as Catherine showed up suggests they were warned about her approach by a third person such as a driver. The presence of the walkie-talkies reinforces our conclusion on this point. Although there were only two walkie-talkies, the jury could reasonably conclude that the burglars only needed two--one for the people inside the house and the other for the driver, defendant, outside by the car.
Defendant’s cooperation with the authorities, while commendable, does not negate the substantial evidence of his guilt. Like the innocent, a guilty person has an incentive to cooperate with the authorities when apprehended, as it can allow a guilty person to receive a lighter sentence. This is what happened to defendant, as his cooperation was the trial court’s justification for imposing the lower term.
Nor does anything in the record support a claim of ineffective assistance of counsel. To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674].) Our review of the record shows that neither trial nor appellate counsel’s performance was deficient. The record also does not substantiate defendant’s claims that trial counsel lied to him or that he needs new appellate counsel. Accordingly, we reject all of his claims of error.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition favorable to defendant.
Disposition
The judgment is affirmed.
We concur: NICHOLSON, J. HULL, J.