Opinion
E063967
01-25-2017
THE PEOPLE, Plaintiff and Respondent, v. DANA LAFEYETTE WHITE, Defendant and Appellant.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall D. Einhorn, and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1401896) OPINION APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed. Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall D. Einhorn, and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Dana Lafeyette White guilty of one count of first degree residential burglary (count 1) (Pen. Code § 459 ) and two counts of the lesser-included charges of simple assault (count 2 and count 3) (§ 240). Finding unusual circumstances, the trial court sentenced defendant to 48 months' probation under the terms and conditions that he be committed to the custody of the Riverside County Sheriff for 180 days, with the county jail time to be served in a Salvation Army program if accepted, and in the county jail if not accepted (the 180 days to be in addition to the 96 days of accrued credit for time served); victim restitution to be paid in an amount to be determined by the Probation Department; and other standard terms and conditions of probation.
All statutory references are to the Penal Code unless otherwise indicated.
The trial court also directed that defendant attend a 45-day drug treatment program at the Gibson House.
Defendant contends on appeal that the federal right of due process requires reversal of his residential burglary conviction because the evidence is insufficient as a matter of law to prove that he had the intent and knowledge to be found guilty as an aider and abettor.
I
FACTUAL BACKGROUND
The Rahman family, consisting of husband Jeff, wife Reem, two sons and three daughters, live in a 10,000 square foot home in Hemet. The house is located in a remote area, on a hill, with few close neighbors, no nearby businesses and is about two miles from the nearest major intersection. There are no lampposts and the neighborhood is dark at night. The property is fenced, with separate gates at the driveway (with a gate access pad intercom box) and for foot traffic (the "man gate"). From the curb, the long driveway slopes uphill to the house. The house has an alarm system.
To avoid confusion, individual members of the Rahman family will be identified by their first names.
On July 19, 2014, the family went to a late dinner, accompanied by Reem's mother. The house alarm was armed at 7:09 p.m. After dinner, the family left for home in two cars. Jeff and Reem drove Reem's mother to her home in the mother's SUV, and the eldest daughter, Hanen, drove her siblings home in a Jeep. Upon arrival at the Rahman home, Hanen saw a car parked in front of the driveway gate and became concerned. She was unsure what time it was, but it was late at night. It was strange for any car to be parked on the street without being invited to the home. Hanen immediately called her mother, who told Hanen to take a photograph of the car, which she did within a minute.
While explaining the situation to her mother, Hanen saw a bald, black man wearing "brownish-tan" cargo shorts, knee-high gym socks and a white T-shirt walking down the driveway from the house. She was able to see him in the light of the Jeep's headlights. At trial, Hanen identified the man as defendant.
Hanen thought him suspicious because he was leaning, had a black object in his hand that she thought was a gun, and was walking quickly toward the gate. She said he carried the black object "[b]y his side," and "some of it fit in his hand but a little hung out. So it looked like a gun." At that point, the driveway gate was closed, but the man gate was open. The family had secured the man gate previously with cable wires that were clamped down to prevent the gate from being opened. Hanen was concerned because the man gate was open and defendant was walking down the driveway.
Hanen then saw the light of a flashlight inside the house in the entry room with a chandelier at the front doors. She knew it was a flashlight because the light was moving. Then the chandelier was turned on. She did not hear an alarm sounding at the house; however, she knew the alarm cannot be heard from the street level, because the family had previously tested it.
Shortly after she saw the defendant walking down the driveway, and while Hanen was talking to her mother, Reem, on the phone, her phone suddenly died. She then used her brother's phone to dial 911 and, concerned that the man was carrying a gun, reversed the Jeep and left the area.
Reem received Hanen's phone call at about 10:30 p.m. on July 19, 2014. Hanen described the car parked in front of the house and sent Reem the photograph of the car. Reem heard her daughter yelling over the phone, " 'There is somebody walking toward'—'coming down.' " She sounded scared and Reem could hear her other children yelling, " 'There is a man coming out of our house, there is a man coming out of the house.' " Hanen described him as a black man and sounded terrified. Then the phone disconnected.
Reem began to panic, thinking that her children had been kidnaped. She and Jeff were still in her mother's SUV, about 15 minutes away from the house. When they arrived, Jeff parked the SUV next to the intercom because the defendant's car was parked in front of the driveway gate. He parked as close to the other car as he could. Reem did not see the Jeep or her children, but saw their dogs—two large Labradors that were not friendly to strangers—come running.
There was no remote for the driveway gate in Reem's mother's SUV, so Jeff got out, walked up to the keypad and entered the access code to open the gate. Their only concern at that point was to go up to the house and "check on the kids, see if they are okay." However, Reem noticed a man walking down the hill as Jeff finished entering the access code, the gates started to open and he walked back to the car. The man was black and was wearing a basic white shirt and khaki shorts. At trial, Reem identified the man as defendant. When the Rahmans' dogs saw the man, they ran away. Reem got out of the car and walked toward defendant, to within about 20 feet from him. She asked him, " 'Where are my kids?' " and he responded, " 'They're gone.' " She then saw defendant reach for something in the waistband area of his shorts and she started walking back to her car. She thought what he was reaching for was a gun. Jeff yelled her name when defendant reached into his waistband, and said, " 'Get in the car now.' " As Reem returned to the SUV, defendant got into his car, the gray Nissan that Hanen had photographed earlier.
During a hearing before the trial court on April 22, 2014, the prosecutor stated that defendant was at the Rahmans' house. The defendant then spontaneously spoke up, saying, " 'I was in the driveway.' " The trial court took judicial notice of this admission, which confirmed Reem's and Hanen's identifications of defendant.
Defendant then backed his vehicle up and hit the SUV with force. Reem was not fully in the SUV, and felt the collision. The SUV was not moving when the gray Nissan hit it. The collision damaged both vehicles. After the collision, defendant did not get out of the gray Nissan nor offer any insurance information; neither Reem nor Jeff confronted him. He then drove off.
Jeff and Reem drove up the driveway toward the house. Reem was screaming for her kids and crying. When they got to the house, neither the children nor the Jeep were there. However, Reem saw someone run from the side of the house around the garage doors toward the Ramona Bowl.
Jeff and Reem decided to follow the defendant. They found that defendant had driven up streets without an outlet, only to turn around and come back. Defendant drove fast downhill on one street as Jeff and Reem watched, and sideswiped the SUV on the driver's side. Reem was on the phone to 911 during the pursuit, giving details of the events. Ultimately, defendant was pulled over by Riverside County Sheriff's Deputy Shumway near the Ramona Bowl parking lot. Reem yelled to the deputy, " 'That's the person, you got the right guy.' " Defendant became compliant under Deputy Shumway's take-down lights and orders at gunpoint. Deputy Shumway found a stun gun in defendant's car, which she tested and found operable. The back of the car was otherwise filled with clothing articles and an Xbox. The stun gun was within easy reach.
Reem and Jeff did not stay at that scene but returned to the house, having heard from the 911 operator that their children were safe and at a store. They found that one of the garage doors had been damaged. The door from the garage to the interior of the house was unlocked, though it might have been left that way. In a first floor guest room, armoire doors and drawers were open, but had not been earlier. In the theater room, a television stand was pulled away from the wall, but had not been earlier.
Having been contacted by the household alarm company at about 10:36 p.m., after the house alarm went off, Riverside County Sheriff's Deputy Miller responded to the house. He checked the perimeter of the house without an indication of entry. He did, however, find damage to the garage door, which was off its track. He determined that the roll-up garage door was the point of entry. He also observed that defendant's vehicle and Reem's mother's SUV had both sustained damage consistent with (1) the gray Nissan being backed into the SUV and, (2) a sideswipe-type collision between the two vehicles. Deputy Miller did not find any fingerprints at the scene, but at the Rahmans' request, no attempt to "dust" for fingerprints was made inside the house because of the mess it created.
II
DISCUSSION
Defendant contends that the federal right of due process requires reversal of his residential burglary conviction (count 1) because the evidence is insufficient as a matter of law to prove that he had the intent and knowledge to be found guilty as an aider and abettor. We disagree.
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.) " ' "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' " (Id. at p. 739.)
Under section 459, a person is guilty of burglary if he "enters any house, room, apartment . . . or other building . . . with intent to commit grand or petit larceny or any felony . . . ." "Every burglary of an inhabited dwelling house . . . is burglary of the first degree." (§ 460, subd. (a).) "All other kinds of burglary are of the second degree." (§ 460, subd. (b).) Section 459 defines "inhabited" to mean "currently being used for dwelling purposes, whether occupied or not."
Finding that an individual aids and abets a crime " 'requires proof in three distinct areas: (a) the direct perpetrator's actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea—knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime.' " (People v. Valdez (2012) 55 Cal.4th 82, 146; see People v. Beeman (1984) 35 Cal.3d 547, 561; CALCRIM No. 401.)
" 'All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.' (Pen. Code, § 31; see People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123 [77 Cal.Rptr.2d 428, 959 P.2d 735]; People v. Prettyman (1996) 14 Cal.4th 248, 259-260 [58 Cal.Rptr.2d 827, 926 P.2d 1013].) Thus, 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. (Ibid.)" (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.)
Here, there was sufficient evidence that defendant specifically intended to aid and abet the commission of a residential burglary, such that the jury was justified in arriving at that verdict. On this very point, when defense counsel moved to dismiss count 1 on the aiding and abetting theory after the prosecution rested, the trial court denied the motion, reasoning: "There was—he was on their property coming back down from the area of the house. His story doesn't make sense. He's there at 10:30 at night to get through a gate that apparently was locked at some time. This is in the reading of the evidence and most in favor of the People's case at this point. And that at the time that he is coming back down there is a person with a flashlight inside the house, the burglar alarms have gone off, that other person escapes, there is no other car in the area from a different person. Even so, he would have had to be there at the exact same instant that somebody was breaking into the house. So there is plenty of evidence. There's other things, too. So I am going to deny that motion." Under our deferential standard and viewing the evidence in the light most favorable to the respondent, there is more than enough in this case to support the jury's verdict of guilty as to the aiding and abetting burglary charge in count 1. (People v. Smith, supra, 37 Cal.4th at pp. 738-739.)
First, it is beyond dispute that defendant and another person were at the Rahmans' house—or at least on their property—simultaneously. The Rahmans' daughter, Hanen, saw defendant coming down the driveway of the house at the same time she observed a flashlight moving in the front room of the house, followed by the chandelier in that room coming on. Additionally, there was evidence presented at trial by the alarm company that the alarm had been triggered by the door from the garage being opened and a motion detector inside the house, further indicating that someone was inside the residence. Moreover, after Jeff and Reem arrived at the house some minutes later, Reem saw the second individual run from the area of the garage doors away from the house and toward the Ramona Bowl, moments after defendant had fled the scene. Yet, only one car—defendant's gray Nissan—had been present at the scene, a very remote estate at least two miles from the nearest major intersection and without any businesses anywhere in the area. The jury was entitled to draw the inference that defendant and the individual inside the house had arrived together in defendant's car.
As previously noted, the trial court took judicial notice of defendant's spontaneous statement that he had been in the driveway on the night in question. This fact has not been disputed.
Second, as noted above, Hanen's stop at the home and Jeff and Reem's stop were some minutes apart. In both instances, Hanen and Reem saw defendant walking down the driveway from the direction of the house. This conduct is consistent with defendant acting as a lookout for his colleague inside the house in the commission of a burglary. The fact that defendant remained at the property after his initial encounter with Hanen is otherwise inexplicable. The jury was entitled to draw the conclusion from this evidence that a burglary of the residence had been in progress and defendant a principal in the crime by aiding and abetting his colleague while acting as lookout and keeping him informed of the goings-on. (People v. McCoy, supra, 25 Cal.4th at pp. 1116-1117.)
The evidence is not entirely clear on just how much time separated the two visits. Reem testified that when she received Hanen's phone call, she and Jeff were about 15 minutes away. The prosecution argued in closing that about seven minutes elapsed from Hanen's call to Jeff and Reem's arrival at the house. However, it is not clear how that figure was determined. Nonetheless, it is beyond doubt, and no party has disputed, that a period of at least several minutes separated the two visits.
Third, in both encounters, the women either saw defendant carrying a black object or reaching for something in his waistband, and both women thought defendant was carrying a gun. In fact, a stun gun was found in his car, positioned to be easily reachable. The presence of a weapon, including a stun gun, in defendant's possession during these events amply implied to the jury that an illicit act was taking place and that defendant was not only aware of it, but was a participant. (People v. Valdez, supra, 55 Cal.4th at p. 146.)
Fourth, after the encounter between defendant and Reem in which Reem asked where her children were and defendant replied, " 'They're gone,' " Reem was getting back into her mother's SUV when defendant got into his Nissan, put it into reverse and backed it forcefully into the SUV. He then immediately departed the scene without further discussion with either Reem or Jeff and without exchanging insurance information. The jury was entitled to the inference that defendant was aware of what he had been doing and was fleeing the scene in an attempt to avoid apprehension. That inference would have only been reinforced when Jeff and Reem followed him (after briefly looking for their children at the house) and trailed him to a dead-end street, where defendant turned around and sped downhill toward them, sideswiping their car without stopping until he was pulled over by the Sheriff's deputy responding to Reem's 911 call.
He had parked the Nissan close to the keypad at the driveway gate, minimizing its visibility from the street, and Jeff had parked the SUV as close to it as he could get. --------
Fifth, after Jeff and Reem returned to the house and a law enforcement investigation was carried out, it was found that a garage door had been forced off of its rail and used as the entry point to the house. Further, armoire doors and dresser drawers were open that had previously been closed. In addition, the television stand had been pulled away from the wall. All of these are indications of entry with intent to commit theft. (People v. Edwards (2013) 57 Cal.4th 658, 719.)
Taken as a whole, and viewed in favor of the People, this evidence was sufficient to support the jury's verdict of guilty as to the residential burglary by aiding and abetting charge in count 1.
Notwithstanding, defendant argues that the evidence presents little more than a showing that he was simply present on the grounds at the time of the supposedly independently committed burglary. He argues that although presence may be considered in determining guilt, it is inadequate all by itself. He further contends that he did not back into the SUV when he was departing the house, but that Jeff rear-ended him with the SUV. In support of that contention, he points to a statement Reem made to the investigating Sheriff's deputy suggesting that her husband had hit defendant instead of the other way around.
As to defendant's first argument, he is correct that mere presence alone at the scene is insufficient to prove aiding and abetting. (People v. Rodriguez (1986) 42 Cal.3d 730, 760.) However, as we have explained above, defendant was not "merely" present at the scene of the Rahman home. He was there simultaneously with his uncaptured colleague, who was inside the home, and the evidence supports the conclusion that they drove and arrived together. Defendant was present when Hanen arrived for the first encounter and remained in place, apparently moving up to the house and back down to the gate, when Reem and Jeff arrived several minutes later for the second encounter. His conduct was consistent with performing lookout duties. He was observed to be carrying or reaching for what both women thought was a gun and, in fact, he was found to be in possession of a stun gun. After a collision between his car and the SUV the Rahmans were driving, he left abruptly without exchanging insurance information and was clearly trying to leave the area, frustrated by a lack of knowledge and the dead ends of the residential streets. He sideswiped the Rahmans after making a second U-turn at a dead end and only stopped when pulled over by law enforcement. These actions go far beyond a "mere presence" at the scene. Instead, they are evidence from which the jury was entitled to find that defendant, with knowledge and intent of the crime to be committed, aided and abetted his in-house colleague in its execution and so was guilty of residential burglary. This argument fails.
Defendant next claims that Jeff rear-ended his Nissan with the SUV instead of defendant backing into the SUV. He points to a statement Reem made to Sheriff's Deputy Miller during his investigation. While describing how they were backing away from defendant's car, as she kept telling her husband to do, and how defendant kept coming toward them in his car, she said that her "husband hit the man's vehicle[.]" Defendant relies strongly on this statement to support his argument that he did not hit them; instead, they hit him, attempting to show that he was not trying to abruptly depart the scene.
However, at trial, Reem denied that her husband hit defendant's car. Having listened to the recording, she said she had been "mixing" and was not "focusing on one thing and it was a misunderstanding." She further testified that English is not her first language. Instead, she primarily speaks Arabic "[a]ll day long," including within the family and around the house, and only speaks English when she needs to go somewhere like shopping or to her children's school. She sometimes mixes words up; in fact, she had previously used the word "bidet" to mean "foyer" when describing in testimony the entrance to her house. She clarified that when she said that " 'My husband hit the car,' " what she meant was that the cars collided when the defendant backed up into their SUV. Furthermore, Deputy Miller testified that he had had to repeat a number of questions to Reem because of the language issue and that when she had said that her husband hit defendant's car, he understood her to mean that the defendant had actually backed up into the SUV.
All of this testimony was presented to the fact-finders, the jury. Obviously, the jury found Reem's and Deputy Miller's testimony credible, and returned a guilty verdict. It is not the role of this court to "substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314.) Defendant's contention on appeal is without merit.
III
DISPOSITION
The judgment of the trial court is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.