Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA056968, James R. Dabney, Judge.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, Acting P.J.
Omar Sutton was convicted of one count of first degree burglary, with a true finding on an allegation that he had suffered a prior strike that also qualified as a serious felony. (Pen. Code, §§ 459, 667, subds. (a)(1), (b)(i), 667.5, subd. (b).) He was sentenced to state prison for a term of 17 years (6 years upper term doubled, plus 5 years for the prior serious felony conviction). Sutton appeals, challenging the sufficiency of the evidence in support of the burglary charge. We agree that the evidence is insufficient and thus do not reach his other claim of error (which is directed at his sentence).
All section references are to the Penal Code.
FACTS
Kevin Ostrea heard his doorbell ring but did not respond right away because he “figured [whoever was at the door] would just leave.” When the ringing continued for two or three minutes, he went to the window and saw a Black man (who was “definitely” not Sutton) standing by the front door. The man was wearing jeans and a blue plaid shirt, and as Ostrea watched through the window “[h]e’d pause for awhile, and then he’d ring again.” The man was empty-handed (he was not carrying a bag or backpack or anything at all). Ostrea did not know the man, decided not to answer the door, and left the front of the house.
When the ringing continued, Ostrea started to return toward the front door but stopped when he saw that it was being “pushed in” and heard the “cracking of wood, too.” Ostrea grabbed a miniature souvenir baseball bat, ran into his backyard, and called 911. While he was on the phone, Ostrea saw Sutton (wearing a Denver Nuggets jersey) running from the front, along the side of his house. When Ostrea, miniature bat in hand, moved toward Sutton, Sutton scrambled over the fence and into the next yard, then jumped another fence into another yard.
Meanwhile, Hawthorne Police Department Officer Jason Moulton, responding to the 911 call, arrived at the scene to find a Dodge SUV parked in front of Ostrea’s house. While Officer Moulton waited for backup, he heard a “loud crackling noise” coming from the front of Ostrea’s house but he could not see anything because his view was blocked by bushes. Officer Moulton then heard the SUV’s engine start and saw a Black man, later identified as DeShawn Sutton (Sutton’s brother) sit up in the driver’s seat and start to drive off. Officer Moulton wrote down the license plate number.
DeShawn was apprehended and arrested later that day. He told the police that the SUV belonged to Sutton’s wife, and that he and Sutton lived together about 15 or 20 miles away from Ostrea’s house. DeShawn was charged and tried with Sutton but was acquitted.
After the SUV drove away, Ostrea walked out to the front of his house, then walked back to the front door with Officer Moulton and looked at the cracked and broken door. Because the deadbolt had cracked, Officer Moulton believed the damage had been done by a heavy tool or instrument, not by a kick.
About 10 minutes later, two other officers reported that they had chased a suspect on foot to a house about three blocks away from Ostrea’s house, and shortly thereafter a K-9 unit from the El Segundo Police Department found Sutton hiding in the crawl space underneath the house.
Omar was arrested and charged. At trial, the People presented evidence (through the testimony of Ostrea and four of the officers) of the facts summarized above and argued an aiding and abetting theory -- that DeShawn was the driver, waiting in the car while Sutton helped the unidentified Black man Ostrea saw at his door. Sutton did not present a defense and was convicted as charged (although, as noted, DeShawn was acquitted).
DISCUSSION
Sutton contends the evidence is insufficient to support his conviction because the most the evidence established was that he was seen running away from the victim’s property, then found hiding under the nearby house. We agree.
A.
First degree burglary is the breaking and entering of a dwelling with the intent to commit larceny or a felony. (§ 459.) A person aids and abets the commission of a crime when he acts with knowledge of the unlawful purpose of the perpetrator and the intent or purpose of encouraging or facilitating the commission of the crime, and his act or advice in some manner aids, promotes, encourages or instigates the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.) Mere presence at the scene of a crime, standing alone, is not sufficient to establish criminal liability as an aider and abettor (although it may be considered with other meaningful evidence in determining whether the person was an aider and abettor). (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) In determining whether the evidence in this case establishes that Sutton was guilty of aiding and abetting a burglary, we view the evidence and draw all inferences in the light most favorable to the judgment. (People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Pre (2004) 117 Cal.App.4th 413, 421.)
B.
The evidence in this case establishes that Sutton was present at the scene of the crime and fled, with the latter fact suggesting consciousness of guilt. That’s it. There is no evidence showing any relationship or connection between Sutton and the unidentified man at the door, only speculation that Sutton must have been involved in the burglary. No one saw Sutton arrive with the burglar, or signaling the burglar, or engaging in any activity suggesting a connection. This is simply not sufficient to prove that he was involved at all, let alone aiding and abetting with the intent to help the burglar.
The Attorney General contends we “must” conclude that Sutton “was at the front of the residence as the doorbell was being rung for an extended time. Then, he was still up there when the [burglar] began prying and pushing at the front door with some sort of tool. Since the [burglar] was seen to be empty handed prior to the prying and pushing, the evidence supports a finding that [Sutton] had been holding the tool before the other man began to use it and [that Sutton] must also have been acting as lookout.” This story goes way beyond drawing inferences and into the land of pure speculation. No witness saw Sutton anywhere near the front door -- indeed, Ostrea simply saw him running toward the back yard and climbing over a fence and he was found blocks away from Ostrea’s house. There is certainly no evidence that Sutton ever had any tools. (People v. Johnson (1980) 26 Cal.3d 557, 576 [substantial evidence must be of ponderable legal significance and of solid value].)
The Attorney General’s reliance on People v. Campbell (1994) 25 Cal.App.4th 402, is entirely misplaced. The aider and abettor in that case was seen with the perpetrators, both before and during the crime -- engaging in conduct the court described as “a textbook example of aiding and abetting.” (Id. at p. 409.) No one saw Sutton with the burglar before or during the burglary, and the fact that Sutton’s brother was parked in front of the house establishes a relationship between the brothers, not between either of them and the burglar. While it may well be that the Sutton brothers had some criminal activity in mind, there is no evidence at all to suggest they were involved with the unidentified Black man or the commission of this burglary. The inference that Sutton arrived at the scene with his brother, when combined with the fact that no one saw either brother with the burglar, means there is proof that Sutton “independently happen[ed] to arrive at the scene” and had nothing to do with the culprit. (Compare People v. Campbell, supra, 25 Cal.App.4th at pp. 406-407, where it was clear that the aider and abettor arrived with the perpetrator.)
And we are certain that the Attorney General does not mean to suggest that the fact the Sutton brothers are Black means they were necessarily associated with the unidentified Black man. While we agree that aiding and abetting may be shown by circumstantial evidence such as companionship with the perpetrator and conduct before and after the offense (In re Lynette G., supra, 54 Cal.App.3d at p. 1094; In re Juan G. (2003) 112 Cal.App.4th 1, 5), there is no such evidence here.
The evidence -- presence at the scene and flight -- simply isn’t enough.
DISPOSITION
The judgment is reversed, and the cause is remanded to the trial court with directions to dismiss the charges against Sutton.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.