P. v. Ellsworth

Filed 1/14/09 P. v. Ellsworth CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Trinity)

----

A jury convicted defendant Jessica Ann Ellsworth of first degree burglary (Pen. Code, 459), criminal threats (Pen. Code,  422) and misdemeanor battery (Pen. Code, 242).^[1] The court suspended imposition of sentence and granted probation.

Defendant appeals. She contends insufficient evidence supports her convictions for criminal threats and burglary. We reject defendants contentions and will affirm the judgment.

Facts

Viewed in the light most favorable to the judgment, we determine whether the entire record contains 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. (People v. Bolden (2002) 29 Cal.4th 515, 553.)

When defendant, her boyfriend Thomas Lilly, and their three children had no place to stay in early 2006, Jodi P.^[2]allowed all of them to stay overnight in her home that she already shared with her two children. The overnight stay stretched into more than a month, during which time Jodis two children moved out to stay in their grandparents home. Defendant and Lilly apparently paid nothing for Jodis kindness but may have done a few chores around Jodis house, mostly related to the care of their own children.

Having known defendant and Lilly for many years, Jodi decided to sell a van to Lilly for $500, with installments of $100 to begin the first of the month following their agreement. Concerned about liability, Jodi did not want the van driven until the registration had been changed.

About a month after defendants family had moved in, Jodi returned home one evening to find an unwelcome guest (Eric Doty). Jodi told Doty to leave. Lilly became upset and an argument ensued. Jodi told Lilly to leave as well. Lilly did so as did defendant and the children. When they left, they took Jodis van despite Jodis order not to. They had paid nothing on it and the registration had not been changed.

Jodi told a friend and her father about what had happened and that she wanted to get the van back. Jodis friend repossessed the van.

On the morning of February 17, 2006, defendant and Lilly went to Jodis home. Jodi was home using her computer in the living room. Defendant kicked in the locked front door, walked quickly inside, called Jodi a fucking bitch and other names for taking the van, and threw punches at Jodi, with a deflected punch landing on the side of Jodis head. Jodi pushed defendant to the ground before she could land any more punches. Lilly came in the house behind defendant, screaming at Jodi about the van; he threatened to kill her and told her that she should have someone with her at all times. Jodi tried to calmly talk to the two of them, claiming she knew nothing about the van being repossessed. Defendant and Lilly called her a fucking liar and a piece of shit. Jodi defended herself and yelled at them to leave. At one point, Jodi said she was going to call the police. As Lilly left, he threw a punch toward Jodi but stopped just in front of Jodis face. Outside the house, Lilly picked up a cinder block and started to throw it at Jodi. Jodi stepped inside the door and Lilly dropped the block, stating, [O]ne of these nights, you are not going to know when, Jodi, but Im going to come and Im going to burn your house down with you and your kids in it. Defendant stood close to Lilly when he said this. Lilly also threatened to shoot and burn Jodis car, which had belonged to her husband, who had recently committed suicide in the car. Lilly was laughing very psychotic[ally]. Jodi believed Lilly would carry out his threats and was worried.

After defendant and Lilly left, Jodi called her father, who advised her to call the sheriffs department. Jodi did so and then called her friends to come over and stay with her. Jodi was very fearful; she was afraid to be alone. Because of Lillys threats, she would not allow her children to stay overnight. Jodi learned that the van had been repossessed by her best friend.

Kathleen A. rented a cabin to defendant and her children while Lilly was in jail. Kathleen claimed defendant admitted kicking in the door of Jodis home and hitting her in the head. Defendant explained to Kathleen that she (defendant) and Lilly were mad that Jodi had repossessed the van and wanted to know why. When Lilly got out of jail and moved in with defendant, Kathleen asked for the rent, which was due. Lilly became angry and claimed that Kathleen would have to wait. Kathleen evicted the family for nonpayment of rent. Thereafter, Lilly threatened to kill Kathleen and tried to run her off the road.

Defendant testified. She denied kicking down the door and hitting Jodi. Defendant denied that Lilly threatened Jodi. Defendant claimed the accusations were completely false and that she and Lilly did not go to Jodis home on February 17. Defendant claimed that they moved out of Jodis home when Jodi made a sexual advance toward defendant.^[3] Defendant admitted that they took the van despite Jodis protests. Defendant claimed Jodi drank alcohol heavily and daily, mostly at the local bar.

Defendants mother testified for the defense. She claimed that Jodi was at the local bar drinking a lot during pool tournaments. She also claimed that she received the pink slip to the van from Lilly and defendant and gave it to Jodi, who never mentioned any threats.

Stacie M. knew both Lilly and Jodi for many years. Stacie claimed that Jodi did not have a reputation for sobriety.

Lilly did not testify.

Discussion

I

Defendant contends the evidence was insufficient to support her conviction for criminal threats in that there is insufficient evidence that she aided and abetted Lilly in threatening Jodi. Defendant does not otherwise challenge the evidence. We conclude that sufficient evidence supports her conviction.

The elements of the offense of criminal threats are as follows: (1) that the defendant willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant made the threat with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threat [. . .] was on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate familys safety, and (5) that the threatened persons fear was reasonabl[e] under the circumstances. [Citation.] (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605, italics omitted.)

As previously stated, defendant does not challenge the evidence insofar as it demonstrates that Lilly committed the offense of criminal threats. Defendant challenges only the evidence insofar as it demonstrates that she aided and abetted Lilly in threatening Jodi. Defendant admits that [t]here is evidence, from [Jodis] statements, that codefendant Lilly threatened [Jodi] in [defendants] presence. Defendant argues that there is no evidence that [defendant] joined in threatening [Jodi]. She claims Lillys statements were made on the doorstep, as [defendant] was trying to leave and there was no evidence that defendant even heard the threats or endorsed them even if she heard them. Because there is no evidence that she was aware of Lillys intent or that she encouraged or facilitated him in the crime of criminal threats, defendant argues that her conviction for criminal threats must be reversed.

To aid and abet the commission of a crime, a person must act 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.) A persons mere presence at the scene of a crime or his or her mere failure to prevent a crime does not make the person guilty of aiding and abetting. However, these circumstances, as well as the persons companionship with the perpetrator and the persons conduct before and after the offense, are facts for a jury to consider. (People v. Durham (1969) 70 Cal.2d 171, 181; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)

Defendant was not merely present at the scene of the crime. Lilly made the threats against Jodi during a course of conduct defendant initiated by kicking in Jodis door. Defendant was no innocent bystander. Some time earlier, defendant and Lilly had taken the van for which they had not paid as they had agreed. Lilly and defendant were angry that Jodi had repossessed the van. After kicking in the front door, defendant called Jodi names for taking the van and took swings at Jodi, hitting Jodi in the head. Lilly followed right behind defendant. He screamed at Jodi about the van, called her names and threatened to kill her. He also took a swing at Jodi, but stopped short of her face. As defendant and Lilly left, Lilly picked up a cinder block to throw at Jodi but dropped it. He then uttered the threat to burn her house down with her and her children in it. According to Jodi, defendant was standing close by Lilly when he made the threat. Defendant did not tell Lilly to tell Jodi he was not serious, nor did defendant disavow Lillys threat. Lilly also threatened to burn up a car that had belonged to Jodis recently deceased husband. Defendant and Lilly left together. The jury could reasonably conclude that defendant and Lilly were acting in concert and shared each others criminal intent and that defendant aided and abetted Lillys threats. Substantial evidence supports defendants conviction for criminal threats.

II

Defendant contends insufficient evidence supports her conviction for first degree burglary. Although conceding there was evidence of forced entry, she contends there was no evidence that she or Lilly intended to commit a felony inside Jodis house. She concedes there is evidence she intended to commit misdemeanor battery but no evidence that she intended to inflict great bodily injury, which would have made the offense a felony assault. She further contends that there is no evidence that either she or Lilly entered Jodis home with the intent to steal or threaten Jodi. We conclude that sufficient evidence supports defendants conviction for burglary.

To prove the offense of burglary, the trial court instructed the jury that the prosecution was required to prove that a person entered a building and at the time of the entry, the person had the specific intent to steal and take someones property permanently or the specific intent to commit the crime of assault with intent to commit great bodily injury or to commit the crime of criminal threats. The prosecution proceeded on the theory that defendant and Lilly had the specific intent to commit felony assault or make criminal threats. The court instructed that the jury was not required to agree as to which crime the defendant intended to commit when he or she entered. The court further instructed on aiding and abetting.

Defendant does not challenge the evidence that she entered Jodis home. Defendant concedes there was evidence of forced entry, so we will not discuss the element of entry. The intent may be inferred from all the facts and circumstances, including a forced entry. (People v. Carter (2005) 36 Cal.4th 1114, 1157; People v. Matson (1974) 13 Cal.3d 35, 41; People v. Osegueda (1984) 163 Cal.App.3d Supp. 25, 29-30; People v. Martin (1969) 275 Cal.App.2d 334, 339.)

Defendant contends that since she did not complete the target offense of felony assault and did not cause great bodily injury, there is no basis for inferring that she intended to do so. That defendant did not succeed in inflicting serious injuries to Jodi to elevate defendants misdemeanor conviction for battery to felony assault is of no moment--whether the victim in fact suffers any harm is immaterial. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) As the trial court instructed the jury, [i]t does not matter whether the intent with which the entry was made was thereafter carried out. Defendant went in swinging, landed a punch but was pushed to the ground by Jodi before defendant could land any more punches. The jury was instructed on assault by means of force likely to produce great bodily injury. The use of hands or fists may support a conviction of assault by means of force likely to produce great bodily injury. (Aguilar, supra, at p. 1028; People v. Beasley (2003) 105 Cal.App.4th 1078, 1087.)

Defendant and Lilly went to Jodis home to find out why she had repossessed the van. Defendant had confided to Kathleen that she (defendant) and Lilly had gone to Jodis house because they were mad that Jodi had repossessed the van and wanted to know why. Defendant kicked in the locked front door of Jodis home and entered, throwing punches at Jodi, with Lilly right behind her. Defendant landed a deflected punch on Jodis head; Jodi defended herself. Lilly also threw a punch but stopped right in front of Jodis face. Both yelled obscenities at Jodi and screamed at her for taking the van. Outside the house, Lilly threatened to burn Jodis house down and to shoot and burn her deceased husbands car. The jury could reasonably conclude that defendant and Lilly were acting in concert, aiding and abetting the other, and when they entered, they (a) intended to assault Jodi and inflict great bodily injury since they were mad that she had repossessed the van and they may have continued the assault had Jodi admitted she had known the van had been repossessed and/or had Jodi not defended herself, or (b) intended to criminally threaten Jodi because she had repossessed the van and/or to regain possession of the van since they had previously taken it without paying for it. Sufficient evidence supports defendants conviction for burglary.

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

SIMS , Acting P. J.

HULL , J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] The same jury convicted codefendant Thomas Stanley Lilly of the same offenses except for the misdemeanor offense. We consider his appeal in case No. C057840.

^[2] We use the first names of the victim and witnesses to protect their privacy.

^[3] Jodi denied this.