Opinion
A152526
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. KAO LIO SAETEURN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. NF436339A)
In this appeal from a judgment following a jury conviction, appellant Kao Lio Saeteurn (Saeteurn) contends insufficient evidence supports his conviction for first degree burglary. (Pen. Code, §§ 31, 460, subd. (a).) We affirm.
All undesignated statutory references are to the Penal Code.
BACKGROUND
At approximately 11:00 a.m. on May 4, 2015, while in a front room in her house in San Bruno, Gloria McIntyre noticed a gray Infiniti parked in front of the house of her next-door neighbor, Nina Grass. Three men were in the Infiniti. McIntyre became suspicious because the car was parked for quite a while and no one exited, so she wrote down the car's license plate number.
One man eventually exited and walked down the cement walkway that led towards Grass's front door. Less than five minutes later, another man exited the car holding something underneath his sweatshirt or in his front pocket. McIntrye moved to her kitchen window and observed the second man walk down the walkway to the side of Grass's house, open and close the side gate, and go around to the back of her neighbor's house. From her kitchen window, McIntyre had a view of the side of Grass's house to the front where the Infiniti was parked. While she observed the second man walk towards the back of Grass's house, McIntyre did not see the first man who exited the car.
McIntyre called Grass at work, and Grass immediately called the police. While McIntyre and Grass spoke to the police on a call together, the Infiniti drove away. The police arrived on the scene shortly thereafter. Neither man who exited the Infiniti returned before the car departed.
Sometime around 11:00 a.m. on May 4, 2015, Helen O'Brien saw two unfamiliar men walking down Palomar Court, the cul-de-sac where she lived in San Bruno. The homes at the end of Palomar Court are downhill from Grass's backyard. The men came down the street from the end of the cul-de-sac, and one of them put something under a white car parked on Palomar Court. O'Brien called the police, who later retrieved a pry tool from under the white car.
Meanwhile, an officer driving to Grass's house saw a gray Infiniti two and a half blocks away from that house. The officer activated his overhead lights, but the Infiniti did not immediately stop. When the Infiniti stopped, the driver, Jamy Xaysana, claimed to work for FedEx. Xaysana was not wearing a FedEx uniform, and the officer did not see packages or any other indicator related to FedEx. When the officer asked Xaysana why he was working for FedEx in his personal vehicle, Xaysana stopped responding.
Before noon that same day, Mark Gamble saw two men walking quickly down from the end of the cul-de-sac on Palomar Court towards Donner Avenue, the cul-de-sac's connecting street. Suspicious, Gamble followed the men in his car and called the police. The men walked into nearby San Bruno Park, where Gamble saw one change his jacket. Police dispatch transferred Gamble's call to Officer Kevin McEvoy.
McEvoy drove towards the vicinity of San Bruno Park while speaking to Gamble. He stopped his car on a street near the park and heard a report of an officer pursuing two men on foot near his location. He then saw two men run down the driveway of a nearby residence. When the men saw him, they immediately turned and ran in the opposite direction. McEvoy told them, "Stop. Police," many times, but the men ran into a backyard and jumped over a fence. McEvoy pursued, reached over the fence with his gun, and ordered the men to the ground. They complied and were arrested. One of these men was Saeteurn and the other was Ken Tran, who had a wad of money in his pocket consisting of one $100 bill, two $50 bills, six $20 bills, one $10 bill, one $2 bill, and one $1 bill. During booking, Saeteurn gave police a false name and did not disclose his real name for a number of hours. After their arrests, the police learned Saeteurn, Tran, and Xaysana lived in Oakland.
When Grass returned to her home on the day of the burglary, she discovered her back door had been pried open. Inside, several of her bedroom drawers had been pulled out, her jewelry box had been moved, and her medicine cabinet had been opened. A picture frame in which Grass stored money was lying on the floor, and the money—including one $100 bill, two $50 bills, six $20 bills, and one $2 bill—was missing. One $10 bill and one $1 bill that Grass kept in a jar were also missing. Tran's fingerprint was found on the picture frame in Grass's home.
On the day of the burglary, McIntyre identified Tran and Saeteurn as two of the men she had seen in the gray Infiniti. McIntyre identified Saeteurn as the first man and Tran as the second man to exit the car. The same day, O'Brien also identified Saeteurn and Tran as the men she had seen on Palomar Court, and she identified Tran as the man who threw the pry tool under the car.
Saeteurn was charged with first degree residential burglary (§ 460, subd. (a); count one) and with giving false information to a police officer (§ 148.9, subd. (a); count two). Saeteurn pleaded no contest to count two, and he was convicted by a jury of count one and sentenced.
DISCUSSION
Saeteurn's contention that insufficient evidence supports his conviction for burglary on an aiding and abetting theory lacks merit. To determine the sufficiency of the evidence, "we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt." (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We presume the existence of every fact the jury might reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Where the circumstances and the logical inferences reasonably drawn therefrom justify the jury's findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal. (Tripp, supra, 151 Cal.App.4th at p. 955.) We may not reverse a conviction for insufficient evidence unless it appears that there is not sufficient substantial evidence to support the conviction under any hypothesis. (Ibid.)
"[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 also § 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.) "Among the factors which may be considered in making the determination of aiding and abetting are presence at the scene of the crime, companionship, and conduct before and after the offense." (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) In addition, flight and giving a false statement to the police are relevant factors in determining consciousness of guilt. (See id. at p. 1095; People v. Flores (2007) 157 Cal.App.4th 216, 221.)
Substantial evidence supports the jury's conclusion that Saeteurn aided and abetted the burglary. Saeteurn, who lived in Oakland, did not independently happen by the scene of the crime. Instead, for quite a while prior to the burglary, he sat in a parked car with Tran and Xaysana in front of Grass's home. Saeteurn then left the car and walked towards the front door of Grass's house. Minutes later, Tran left the car carrying something underneath his sweatshirt and walked down the walkway to the side of the house, through the side gate, and into the backyard. Their concerted action reasonably implies a common purpose.
Next, Grass's backdoor was forced open, and Tran stole Grass's money. During this time, Saeteurn did not return to the Infiniti in front of Grass's house. Saeteurn was next seen fleeing with Tran down Palomar Court from the end of the cul-de-sac, which is downhill from Grass's backyard. Tran discarded a pry tool under a car on Palomar Court, and the two men continued to San Bruno Park. The two men immediately ran from police when confronted, and Saeteurn gave police a false name. There is no evidence that Saeteurn was surprised by Tran's conduct, and the jury could reasonably conclude that Saeteurn investigated Grass's house immediately before the burglary, was present somewhere behind the house during the burglary, and fled from the backyard with Tran after the crime. The evidence is sufficient to show Saeteurn knowingly played an affirmative supportive role in the burglary and was not an innocent, passive bystander.
People v. Briggs (1967) 255 Cal.App.2d 497 and People v. Bamber (1968) 264 Cal.App.2d 625, relied on by Saeteurn, are distinguishable. In Briggs, the only evidence connecting the defendant to the crime was a wallet found at the crime scene that the defendant had previously reported lost. (Briggs, supra, 255 Cal.App.2d at pp. 498-499.) In Bamber, the evidence put the defendant "near the scene of the burglary on the night it occurred and in the company of a person who might have committed it." (Bamber, supra, 264 Cal.App.2d at p. 633.) Here, in contrast, several probative factors indicative of aiding and abetting are present—presence at the scene of the crime, companionship, and conduct before and after the offense, including flight.
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------