Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 201246
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I.
Introduction
Defendant Demetrius Spearman (Spearman) appeals from his conviction of second degree burglary of an automobile, receiving stolen property and possession of a burglary tool. He argues that there was insufficient evidence of the force element of burglary, and that his conviction thus denied him his due process rights. We affirm.
II.
Procedural Background
The San Francisco District Attorney charged Spearman by information with one count each of second degree burglary (Pen. Code, § 459), receipt of stolen property (§ 496, subd. (a)) and possession of burglary tools (§ 466). A jury found Spearman guilty of all three counts. The court sentenced Spearman to three years on the second degree burglary count. It imposed a three-year term for receipt of stolen property, but stayed the term under section 654. The court sentenced Spearman to time served on the burglary tool possession count. This timely appeal followed.
All further statutory references are to the Penal Code.
III.
Factual Background
On March 3, 2007, San Francisco police officer Tim Brophy was on duty in the area of Franklin and Turk Streets. At approximately 8:00 or 9:00 p.m., he observed an individual later identified as Spearman approach a vehicle on Franklin Street. Spearman went up to the passenger side rear window of a brown Honda Element, then walked away after about 10 seconds. Officer Brophy approached the Honda and observed that the rear passenger window was cracked or “spidered.” He did not see Spearman crack or break the window, or make “throwing movements” toward the vehicle.
Officer Brophy, in plainclothes, followed Spearman. After about 20 minutes, Spearman returned to the parked Honda on Franklin. Officer Brophy saw Spearman reach in and remove some items through the window of the automobile. He then saw Spearman walk away, bend down out of his view, and then return to the car. When Spearman left the car, he had a “container full of items.” He walked down Franklin towards Golden Gate, where he stopped in a parking lot and looked through the items he had.
Spearman had “a lot of stuff. . . . It kind of looked like clothing and luggage.” The owner of the Honda identified the items as her knitting bag, a “fancy belt from India” worth $300, moccasins worth $300, Born brand shoes worth $150, and Merrell brand boots. She testified that she had locked and secured her car when she parked it that evening between 5:30 and 6:00 p.m., and gave no one permission to enter. When she returned to her car, the rear side passenger window “was smashed and [had] a big hole . . . .”
The Honda owner testified she paid a discounted price of $150 for the belt, but “new it would cost [$]300.”
Officer Brophy, assisted by other officers, arrested Spearman. Officer Brophy searched him, and found a flashlight, sweatshirt, pouch, and a spark plug on a string with porcelain on one end. In Officer Brophy’s experience, a spark plug on a string is “probably the most common tool used now to break car windows.” The tool is used because it makes little noise when thrown at a vehicle window, can be retrieved easily with the string, and requires minimal force. Approximately 95 percent of the time, using this tool just cracks or “spiders” the window, making it possible for the window to be removed by simply tapping it.
IV.
Discussion
Spearman argues that his conviction of burglary of a vehicle must be reversed because there was insufficient evidence that he “entered the vehicle using force.” We examine the record to determine whether “ ‘there is any substantial evidence of the existence of each element of the offense charged.’ ” (People v. Vasco (2005) 131 Cal.App.4th 137, 160, citing People v. Ainsworth (1988) 45 Cal.3d 984, 1022.)
In applying the substantial evidence standard of review, we “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.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We presume the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) This standard applies whether direct or circumstantial evidence is involved. “ ‘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. Catlin (2001) 26 Cal.4th 81, 139, citing People v. Kraft, at pp. 1053-1054.)
Spearman maintains that his conviction must be reversed because there was “no evidence that [he] used force to gain entry to the vehicle.” Section 459 provides in pertinent part: “Every person who enters any . . . vehicle as defined by the Vehicle Code, when the doors are locked . . . with intent to commit grand or petit larceny . . . is guilty of burglary.” Neither “ ‘forced entry in the usual sense of the word nor use of burglar tools are elements of automobile burglary.’ ” (In re James B. (2003) 109 Cal.App.4th 862, 868, citing In re Charles G. (1979) 95 Cal.App.3d 62, 67.) “The requirement of locking as an element of vehicular burglary has been interpreted to mean ‘that where a defendant “used no pressure,” “broke no seal,” and “disengaged no mechanism that could reasonably be called a lock,” he is not guilty of auto burglary. [Citations.]’ ” (In re James B., supra, at p. 868, citing In re Young K. (1996) 49 Cal.App.4th 861, 864.) Because “ ‘auto burglary can be committed only by entering a locked vehicle without the owner’s consent, it is only accomplished by altering the vehicle’s physical condition; at worst, by smashing a window, at best, by illegally unlocking it.’ ” (In re James B.,at p. 868.)
Spearman relies on People v. Burns (1952) 114 Cal.App.2d 566 (Burns), in which the defendant argued there was insufficient evidence of “one of the essential elements of burglary of a vehicle . . . that the doors of the vehicle must have been locked . . . .” (Id. at p. 569.) The court agreed, holding that “[t]he fact that the windwing was broken and glass was on the front seat was not proof that the doors of the Buick were locked, and an inference could not be drawn from that fact that the doors were locked.” (Id. at p. 570.) The Burns holding, however, was based on an inapposite factual situation. In Burns, “[n]o one testified that the doors were locked at the time the Buick was left at the parking place or that they were locked at any time.” (Id. at p. 569.) In contrast, the owner of the vehicle here testified that she locked and secured the vehicle when she parked it between 5:30 and 6:00 p.m. that evening. Additionally, Burns has been criticized regarding its finding that “a broken window is not evidence that the car doors were locked.” (People v. Rivera (2003) 109 Cal.App.4th 1241, 1244.) The Rivera court rejected that finding, concluding instead that evidence that “when police arrived during the burglary, the car window had been broken and it was not broken six or eight hours earlier . . . [was s]ubstantial circumstantial evidence that . . . the car was locked when entry occurred.” (Id. at p. 1245.)
Here, the evidence at trial demonstrated that the doors of the Honda were locked between 5:30 and 6:00 p.m. on March 3, 2007. Between 8:00 and 9:00 p.m. that evening, Officer Brophy observed Spearman linger by the Honda’s passenger side for about 10 seconds, then walk away. As he followed Spearman from a distance, he observed that the Honda’s rear passenger window was “spidered.” Within 20 minutes, Officer Brophy saw Spearman return to the Honda and reach his hand through the rear passenger window, remove something, and walk away. When arrested, he was in possession of a burglary tool commonly used to effect entry into a vehicle by “spidering” a window, and whose use in that manner was consistent with Spearman’s actions that evening. This was certainly substantial evidence, even though circumstantial, that Spearman gained entry to the locked Honda by “ ‘altering the vehicle’s physical condition.’ ” (In re James B., supra, 109 Cal.App.4th at p. 868.)
V.
Disposition
The judgment is affirmed.
We concur: MARCHIANO, P. J., MARGULIES, J.