Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 060248-2
Swager, J.
Defendant was convicted following a jury trial of three counts of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)), one count of first degree residential robbery (Pen. Code, §§ 211, 212.5, subd. (a)), one count of false imprisonment by force (Pen. Code, §§ 236, 237), and one count of felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), with associated enhancements for personal use of a firearm (Pen. Code, §§ 12022.5, subd. (a)(1), 12022.53, subd. (b)), acting in concert with two or more persons in commission of the robbery (Pen. Code, § 213, subd. (a)(1)(A)), a prior strike conviction (Pen. Code, §§ 667, subd. (b)-(i)), 1170.12), a prior serious felony conviction (Pen. Code, § 667, subd. (a)), two separate prior state prison terms (Pen. Code, § 667.5, subd. (b)), and parole ineligibility (Pen. Code, § 1203, subd. (e)(4)). He was sentenced to an aggregate state prison term of 34 years and 4 months. His sole contention in this appeal is that one of the residential burglary convictions (Count 2) must be reversed for lack of evidence. We conclude that substantial evidence supports the conviction, and affirm the judgment.
Although defendant has challenged only the conviction of Count 2, evidence pertinent to the remaining convictions has a bearing on the evidence to support that conviction, however. We will separately recite the evidence pertinent to the three incidents that comprise the convictions.
The Robbery and False Imprisonment of Vornchar Lee and Burglary at 728 Wilson Avenue (Counts 3-6).
Vornchar Lee was robbed on the evening of October 31, 2005, by three “southeast Asian” intruders, defendant, a younger male and a female, who forcibly entered his parents’ home at 728 Wilson Avenue in Richmond after he opened the front door in response to knocking. Lee testified at trial that defendant entered the house first by pushing him while armed with a small silver semi-automatic handgun. The two other intruders followed defendant into the house. Defendant pointed the gun at Lee’s chest and demanded his “parents’ money.” Lee “panicked,” and repeatedly told the intruders, “Take whatever you want.” Lee gave them his wallet, watch, keys and cell phone, but defendant “kept demanding” the “valuables” and “money.” With a gun held to his back, Lee lead defendant upstairs to his parents’ bedroom, while the other male and the female remained downstairs “searching for things.” In his parents’ bedroom closet Lee discovered a small metal safe, which he carried downstairs and placed on a couch in the living room.
Defendant then ordered Lee to “get on the ground,” face down. He did so, and his hands were tied behind his back with video cable by the “other southeast Asian” man. The “female” threatened Lee and demanded to know where the “laptop” was kept. Lee told her “it’s in my sister’s room.” The intruders carried the safe and other items they collected out of the house. The female warned Lee, “You better not say anything.” Lee heard a car drive away after they left the house.
Lee quickly untied his hands and ran to a neighbor’s house to call the police. Within a few minutes Richmond Police officers arrived. Lee told the officers “what happened” and gave a description of the suspects. He described defendant as having a bald or shaved head, a moustache, five foot three inches tall, 120 pounds, around 28 years old, wearing blue jeans, a black jacket and black gloves.
Lee corrected his description at trial by testifying that defendant had “really short hair” that had been cut with a “hair clip cutter,” but was not “absolutely” bald. He also testified that the “second” male was younger, taller than defendant, and had a bald or shaved head.
Included in the items taken during the robbery were approximately $1,000 that was in the safe, jewelry, citizenship papers, assorted video games, a laptop computer, digital camera, portable heater, camcorder, wireless router, and CD drive box. All of the bedrooms in the house had been ransacked. Dresser drawers had been opened and tossed to the floor. The mattress in the upstairs bedroom had been “taken off the bed” and thrown on its side on the floor.
A few days after the robbery Lee viewed a lineup of six photographs. He selected defendant’s photograph, number one, as the man who had the gun. He told the officer, “I think it’s No. 1.” At trial, Lee testified that he was “a hundred percent” certain of his identification of defendant.
A stipulation was entered that fingerprints lifted from a small cardboard box taken from Lee’s bedroom and left on the dining room floor by the “female suspect” were “matched” to a “female named Romina Sarmiento.” Lee subsequently identified Romina Sarmiento’s photograph from a photo lineup as the female intruder.
No other identifiable fingerprints were found.
The Burglary at 656 38th Street (Count 1) .
Two residential burglaries occurred on the 600 block of 38th Street in Richmond on November 2, 2005. Christine Swenning left her home at 656 38th Street early that morning after locking all the doors and windows. Her neighbor, Tamara Tomas, heard “garbage cans being rustled around” at Swenning’s house around 2:00 that afternoon. When Tomas looked out her bedroom window she noticed two Asian men, one of whom she positively identified as defendant, in Swenning’s back yard. She observed defendant jump onto Swenning’s deck and start “prying open her sliding glass door with a crowbar.” The other man was “running around from one side of the house to the other.” Tomas specifically recalled that defendant was wearing a “jean jacket,” along with a gray T-shirt and a baseball cap. The other Asian man was wearing a black jacket and black baseball cap. Tomas “ran to the phone and called 911.” She remained on the phone with the dispatcher for 10 or 15 minutes until she was told that the two men “had been caught.”
Richmond police officers responded to the report of a “possible burglary in progress” on the “600 block of 38th Street.” Two “Asian males,” defendant and Visay Phouannavong, were seen by an officer walking through a gate into the front yard of a house on the 600 block of 39th Street, directly behind the residence where the burglary had been reported. Defendant and Phouannavong looked at the officer, who ordered them to stop with his gun drawn. They “immediately took off running” southbound on 39th Street. Phouannavong was quickly apprehended when he tripped and fell onto the sidewalk. He was wearing a black hat and latex gloves, and was found in possession of numerous items of jewelry and a Motorola walkie-talkie.
Defendant “continued running southbound,” but was soon located “on top of a roof of a house” at 625 39th Street. Defendant climbed down from the roof when given a ladder by the officers, whereupon he was arrested and handcuffed.
Tamara Tomas was taken to the scene where defendant and Phouannavong had been detained and asked if she recognized them as the men whom she observed breaking into the Swenning’s residence. She identified both men at the scene. Tomas testified that she had “[n]o doubt” defendant was the man she had seen attempting to pry open the Swenning’s sliding glass door with a crowbar.
Christine Swenning returned home between 2:00 and 3:00 p.m. after receiving a phone call from the police that reported a “break-in” at her residence. She found that interior doors in the house were open that had been shut when she left that morning, items around the kitchen had been “disturbed,” and a “black mark” was visible on a wooden table. A copper pipe that Swenning had placed in the track of the rear sliding glass door had been removed, and the door was “at least two-thirds open.” The lock on the door was broken and the frame was bent. A window in a rear bedroom of the house that had been closed and secured with a piece of pipe was also broken. Nothing was missing from the residence except the key to a Mazda that had been left on a kitchen table.
The Burglary at 632 38th Street (Count 2) .
Sergeant Darrell Jones of the Richmond Police Department conducted an investigation in the area after defendant and Phouannavong were arrested. He discovered that a side door of the residence at 632 38th Street was open. Inside the home, a bedroom had been “ransacked,” clothes “were thrown everywhere,” a jewelry box was open, and a plasma TV seemed to be missing. Sergeant Jones left his business card along with a property loss form at the house before he secured it and left.
The occupants of the residence at 632 38th Street, Timothy Dempsey and Jay Johnson, both returned home from work that evening to find that a screen had been removed from a window at the corner of the front porch. A plasma television that had been mounted to the wall in the family room was gone. Johnson’s bedroom had been ransacked: the cabinet drawers were open; his laptop computer, numerous items of jewelry, wrist watches, and cigarette lighters had been taken. Phouannavong was found in possession of some of the jewelry taken from Johnson’s bedroom when he was arrested. The television and laptop computer were never recovered.
The next day, a Richmond police officer was dispatched to 636 38th Street to recover a “jean jacket” found in the back yard of that residence. A torn latex glove and a cigarette lighter were in the left front pocket of the jacket. Tamara Tomas testified that defendant was wearing a “jean jacket” when he was prying open the sliding glass door at 656 38th Street.
Defendant’s Statement.
The parties stipulated that defendant later gave a statement to a detective with the Richmond Police Department. Defendant acknowledged in the statement that he provided a “false name” to the police when he was arrested. He also stated that he and Phouannavong “were in need of some money for their methamphetamine, so they began knocking on residential doors to see if anyone would answer.” When no one responded at the 656 38th Street address, defendant pried “open the sliding glass door” with a crowbar, but did not go inside. They heard sirens, became nervous, and observed a police officer standing outside the front yard. They ran but were apprehended on the next block. Defendant denied that “any other person was involved in this incident.” He also asserted that he “did not have anything to do with” the burglary at 632 38th Street.
DISCUSSION
Defendant argues that the evidence does not support the conviction of the residential burglary at 632 38th Street (Count 2). He specifically challenges the evidence of his identity as one of the burglars. He points out that no witness identified him, none of the property taken was found in his possession, and no “forensic evidence” connected him to the residence. He maintains that the “circumstantial evidence” of Phouannavong’s guilt – that “some of the property taken” from the house was found in his possession – is “insufficient to prove” defendant’s guilt of the burglary charged in Count 2. He thus claims that his “conviction on count two is not supported by substantial evidence and must be reversed.”
This court has a “limited role” in “assessing the sufficiency of the evidence supporting a conviction.” (People v. Lewis (2001) 25 Cal.4th 610, 643.) “Defendant’s claim of insufficient evidence requires us to 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 examine the record to determine “whether it shows 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.” . . .’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22.) “ ‘In making this determination, the appellate court “ ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ . . . ‘Our task . . . is twofold. First, we must resolve the issue in the light of the whole record . . . . Second, we must judge whether the evidence . . . is substantial . . . .’ ” ’ [Citation.]” (People v. Proby (1998) 60 Cal.App.4th 922, 928, italics omitted.) “It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. 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; see also People v. Wader (1993) 5 Cal.4th 610, 640.)
“ ‘The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.]’ [Citation.]” (People v. Mejia (2007) 155 Cal.App.4th 86, 93.) “Where, as here, the jury’s findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, ‘but our opinion that the circumstances also might reasonably be reconciled with a contrary finding’ does not render the evidence insubstantial. [Citation.]” (People v. Earp (1999) 20 Cal.4th 826, 887–888.) Further, if the record contains substantial evidence from which a reasonable trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt “the possibility that the trier of fact might reasonably have reached a different conclusion does not warrant reversal.” (People v. Taylor (2004) 119 Cal.App.4th 628, 639.) “Additionally, ‘[a]n appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.’ [Citation.] Moreover, an appellate court ‘resolve[s] neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 488.)
“However, ‘[e]vidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact. [Citations.]’ [Citation.] ‘Circumstantial evidence is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact, but if there has been a conviction notwithstanding a missing link it is the duty of the reviewing court to reverse the conviction.’ [Citation.]” (People v. Tripp, supra, 151 Cal.App.4th 951, 955–956; see also People v. Wader, supra, 5 Cal.4th 610, 640.)
While defendant is of course correct that no direct evidence proves his commission of the burglary at 632 38th Street, our review of the entirety of the record persuades us that the circumstantial evidence of his guilt is at least substantial. Defendant isolates the links of circumstantial evidence in asserting that the conviction must be reversed, whereas we “ ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence’ ” of guilt. (People v. Brown (1995) 35 Cal.App.4th 1585, 1598, italics added, citation omitted.)
Tamara Tomas positively identified defendant and Phouannavong as the two men who broke into the rear sliding door of the Swenning’s residence. According to defendant’s statement, they aborted the break-in and left the residence when the police arrived on the scene. Defendant and Phouannavong were discovered together only a few minutes later in very close proximity to both burglarized residences. They fled when confronted by a police officer. Significantly, when Phouannavong was arrested he had in his possession fruits of the burglary at 632 38th Street. Defendant was seen wearing a jean jacket when he was burglarizing the Swenning’s residence, and a discarded jean jacket was found in the back yard at 636 38th Street. Inside the pocket of the jean jacket was a cigarette lighter; Jay Johnson testified that cigarette lighters were taken during the burglary at 632 38th Street. Further, defendant admitted he and Phouannavong embarked upon their criminal venture together that day to knock on “residential doors” to find unoccupied residences. A reasonable inference to be derived from his admission is that they did not restrict themselves to a single burglary to obtain money for methamphetamines, but instead had in mind joint commission of crimes that day wherever in the neighborhood the opportunity seemed promising. The burglary at the Swenning’s residence did not occur until around 2:00 that afternoon, so defendant and Phouannavong had plenty of time earlier that day to enter the 632 38th Street house after the occupants left in the morning.
Defendant had access to both burglarized residences, and an admitted motive to commit the crimes. (People v. Solis (2001) 90 Cal.App.4th 1002, 1010–1011.) Indisputable evidence indicates that defendant and Phouannavong acted in concert to commit one burglary, and as they both fled Phouannavong was arrested moments later in possession of items stolen during the other burglary committed in the same neighborhood that same day. We also know they were proceeding according to a plan to commit burglaries. Although defendant denied in his statement that he participated in the burglary at 632 38th Street, the jury was entitled to disbelieve his exculpatory statement, and we cannot reweigh that credibility determination. (See People v. Snow (2003) 30 Cal.4th 43, 67; People v. Cantrell (1992) 7 Cal.App.4th 523, 538.) “[T]he testimony of a witness in derogation of the judgment may not be credited on appeal simply because it contradicts the plaintiff’s evidence, regardless how ‘overwhelming’ it is claimed to be.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) While the circumstantial evidence against defendant may not be incontrovertible, the jury could logically and reasonably draw the inference from the circumstantial evidence presented that he committed both burglaries. (People v. Catlin (2001) 26 Cal.4th 81, 143; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1613–1614.) We conclude that substantial evidence supports the conviction of residential burglary charged in Count 2. (People v. Johnson (1993) 6 Cal.4th 1, 36.)
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.