P. v. James
Filed 4/17/13 P. v. James CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEA, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KENT JAMES,
Defendant and Appellant.
D062415
(Super. Ct.
No. CE318583)
APPEAL from a judgment of the Superior
Court of
County, Lantz Lewis, Judge.
Affirmed.
A jury found Kent James guilty of three counts each of
burglary (counts 1, 3 & 5) and petty
theft with a prior (counts 2, 4 & 6) related to three separate
shoplifting incidents that occurred in early February 2012. James later admitted various enhancement
allegations related to earlier crimes.
James appeals, claiming the evidence did not support his convictions on
counts 1 and 2 in connection with the first shoplifting incident. We disagree.
FACTUAL BACKGROUND
On the morning of February 1, 2012, a store employee
heard a noise coming from the over-the-counter medicine aisle of the Rite Aid
store on Second Street in El
Cajon. The
employee testified she checked the ceiling mirrors and saw a female, later
identified as Jeannette Lynch, putting over-the-counter medication into her
purse. The employee confronted Lynch and
told her to return all of the medication.
As the employee escorted Lynch out of the store, the employee told Lynch
if she returned the employee would call police.
A surveillance tape from the store revealed that James had entered the
store about 10 seconds before Lynch.
James then went to the electronics aisle, at the opposite end of the
store from the over-the-counter medicine aisle, where he conversed with another
store employee about a "SIM card" for his phone. That employee testified James kept repeating
the same thing over and over as he tried to explain to the employee what a
"SIM card" was and did, even after the employee confessed not to
understand. When that employee offered
to find another store employee who might know more about SIM cards, James said
"No, that's okay" and left the store shortly after Lynch.
On February 13, James and Lynch were
together at a Rite Aid store in Rancho San Diego. A store employee testified he confronted the
two as they walked around the registers toward the front door of the
store. The man, later identified as
James, walked a few feet ahead of Lynch.
The store employee saw Lynch's large purse bulging and when he got
closer, the employee could see over-the-counter medicine and other Rite Aid
merchandise in Lynch's purse.
The employee testified he told James and Lynch to stop, but they kept
walking and left the store. As they left,
James and Lynch told the employee it was Lynch's "stuff." Once outside, Lynch ran and jumped in a car
after the employee said he was going to call police. James, however, casually walked to the car
and told the employee, "Do whatever you got to do," as the employee
demanded Lynch return the merchandise and said he intended to call police. Before the couple drove away, the employee
removed the license plate from the car.
Police subsequently determined the car was registered to James. Once back inside the store, the employee
found a large "gap" of missing product in the over-the-counter
medicine aisle.
On February 15, the manager of a
Rite Aid store on Avocado Boulevard
in El Cajon almost bumped into
James inside the store. She then noticed
a woman later determined to be Lynch in a nearby aisle stocked with
over-the-counter medication. Based on
information she had received from other Rite Aid stores, she recognized Lynch
as a potential thief. The store manager
tried to look into Lynch's "huge black purse" and determine whether
there was any merchandise inside. A man
later identified as James, who was standing nearby, asked the manager if she
looked at all of her customers the way the manager looked at Lynch.
The manager followed behind Lynch as Lynch began walking toward the
front door of the store. As Lynch walked
out the door, James stopped short of the front door and asked another employee
if the store manager was available. When
the manager responded, "Yeah, that's me," James, who was upset, said,
"I can't believe you just looked at her [Lynch] like that. I'd like to shoot your fucking
ass." The manager proceeded to
follow Lynch out the front door and watched her get in the passenger seat of a
car. James then got in the driver's side
of the same car and drove off. The
manager testified she went back into the store, looked at store surveillance
video and verified that the woman had in fact stolen over-the-counter medicine.
DISCUSSION
James contends there is insufficient
evidence to support his convictions for aiding and abetting burglary and
petty theft on February 1 as alleged in counts 1 and 2 because there is no
evidence that his conduct assisted Lynch in the achievement of these
crimes. We disagree.
A. Governing
Law
Where a defendant challenges
the sufficiency of the evidence supporting a conviction, we review the entire
record in the light most favorable to the judgment to determine whether it
contains substantial evidence from which a rational trier of fact could have
found the defendant guilty beyond a reasonable doubt. (People v. Jennings (1991) 53 Cal.3d
334, 364.) A court of review must
presume in support of the judgment the existence of every fact the jury could
reasonably deduce from the evidence. (
A person aids and abets the
commission of a crime when the person, acting (1) with knowledge of the
perpetrator's unlawful purpose, and (2) with 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. Croy (1985) 41
Cal.3d 1, 11-12; People v. Beeman (1984) 35 Cal.3d 547, 561; see also
CALCRIM No. 401.
title="">[1])
Direct evidence of the
defendant's mental state is rarely available and may be shown with
circumstantial evidence. (
failure to prevent the crime, even with knowledge of the perpetrator's criminal
purpose, do not constitute aiding and abetting, the trier of fact may consider
such circumstances in determining aiding and abetting liability. (People v. Nguyen (1993) 21
Cal.App.4th 518, 529–530.) An
unexplained presence at the scene of a crime implies complicity. (People v. Wilson (1928) 93 Cal.App.
632, 636.) Other circumstances to be
considered are companionship, and conduct before and after the offense,
including flight, which can indicate guilt.
(In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094; People v.
London (1988) 206 Cal.App.3d 896, 903.)
"It has been
one who was
suspicion, or to
serve as a
seeking to interfere,"
is liable as an aider and abettor, and thus a principal in the crime
committed. (
person is an accomplice is a question of fact for the jury, unless there is no
dispute as to the facts or the inferences to be drawn from them. (People v. Avila (2006) 38 Cal.4th
491, 565.)
B.
Analysis
Here, we conclude sufficient evidence supports James's conviction on
counts 1 and 2 for aiding and abetting Lynch in connection with the theft of
over-the-counter medicine from the store on February 1, 2012. Focusing on James's conduct both before and
after the February 1st crime, we note from the record that James entered and
left the Rite Aid store at roughly the same time as Lynch, his girlfriend,
which was also the couple's modus operandi with respect to the incidents at the
different Rite Aid stores on February 13th and 15th. (See In re Lynette G., supra, 54 Cal.App.3d at p. 1094 ["Among 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. . . . [F]light is one of the factors which is
relevant in determining consciousness of guilt." (Italics added.)].)
In addition, the record shows that once inside the store during the
February 1st incident, James went to the opposite end of the store from
Lynch. There, James engaged a store
employee in conversation about a SIM card while Lynch stole over-the-counter
medication. The employee testified that
James kept repeating the same thing over and over as he tried to explain to the
employee what a "SIM card" was and did, even after the employee
confessed not to understand. In
addition, when the employee offered to find another store employee who might
know more about SIM cards, James said "No, that's okay" and then left
the store shortly after Lynch.
That there may have been an
innocent explanation for James's presence in the Rite Aid store on February 1st
or his decision to go to the opposite end of the store from where Lynch was
stealing medication is not the test in our substantial evidence review: "If
the circumstances reasonably justify the trier of fact's findings, reversal of
the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.]
'A reviewing court neither reweighs evidence nor reevaluates a witness's
credibility.'" (See
60.) The jury clearly found James was
not merely present at the crime scene on February 1st, as he now contends, but
rather was there to aid and abet Lynch in the theft of over-the-counter
medicine.
Finally, during James's postarrest interview heard by the jury, he
admitted he brought Lynch into his scheme to steal items from various stores
and then sell them to pay for living expenses.
He also admitted that immediately before the February 1st incident at
Rite Aid, he and Lynch went into a CVS store and stole items.
From these facts, we conclude the record contains substantial evidence from which a rational trier of fact could
find James guilty in counts 1 and 2 for aiding and abetting Lynch. (See People v. Jennings, supra, 53 Cal.3d at p.
364.)
DISPOSITION
The
judgment of conviction is affirmed.
BENKE, Acting
P. J.
I CONCUR:
NARES, J.
McINTYRE, J.
I
respectfully dissent. As the majority
points out, the companionship between James and Lynch and James's postarrest
interview statements support a conclusion that James knew Lynch planned to
shoplift from the Rite Aid store on February 1.
A jury could also reasonably infer that James went to the store
intending to facilitate Lynch's crime.
However, there is absolutely no evidence in the record that James by act or advice aided, promoted, encouraged
or instigated the commission of the crime.
(People v. Croy (1985) 41 Cal.3d 1, 11–12.) James and Lynch entered the store separately. James proceeded to the electronics aisle at
the opposite end of the store from the over-the-counter medicine aisle, where
he talked to an employee. Video
surveillance showed that James was alone when he left the store.
We
reject the majority's suggestion that James diverted suspicion away from Lynch
or acted as a lookout. The store
employee working near the over-the-counter medicine aisle observed Lynch from
the time she saw Lynch pushing over-the-counter medication into her purse,
until the time Lynch left the store.
This employee had no interaction with James that day, never saw James
inside or outside the store and testified that she observed Lynch without any
other customer trying to distract her.
Based on this evidence, no reasonable jury could conclude that James
"distracted" this employee. Moreover,
we fail to see how any reasonable jury could infer that James intended to create
a distraction by talking to a different
store employee at the opposite end of
the store on a day that the store was "fairly empty."
Similarly,
there is no evidence from which the jury could infer that James was acting as a
lookout. The store employee that
assisted James on February 1 never observed him looking up at the reflective
ceiling tiles to see the rest of the store.
She stated that her contact with James lasted about two minutes and that
James focused on the merchandise in front of him. While James happened to have left the store
shortly after Lynch, there is no evidence that James could see Lynch or was
otherwise communicating with her at the time.
This is unlike the later incidents on February 13 and 15, where James
stayed close to Lynch and assisted her departure by driving her away on
February 13 and distracting the store manager on February 15.
I
would reverse the judgment on counts 1 and 2 because there is no evidence that
James engaged in any act, word, or gesture either before or during the crime
that could be reasonably interpreted as directly or indirectly aiding,
promoting, encouraging, instigating, or facilitating.
McINTYRE, J.
name="_ftn1" title="">[1] CALCRIM
No. 401, as given, states: "To
prove that the defendant is guilty of a crime based on aiding and abetting that
crime, the People must prove that: [¶]
1. The perpetrator committed the crime; [¶] 2. The defendant knew that the
perpetrator intended to commit the crime; [¶] 3. Before or during the commission
of the crime, the defendant intended to aid and abet the perpetrator in
committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in
fact aid and abet the perpetrator's commission of the crime. [¶]
Someone aids and abets a crime if he or she knows of the
perpetrator's unlawful purpose and he or she specifically intends to, and does
in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's
commission of that crime. [¶] If all of these requirements are proved, the
defendant does not need to actually have been present when the crime was
committed to be guilty as an aider and abettor.
[¶] If you conclude that
defendant was present at the scene of the crime or failed to prevent the crime,
you may consider that fact in determining whether the defendant was an aider
and abettor. However, the fact that a person is present at the scene of a crime
or fails to prevent the crime does not, by itself, make him or her an aider and
abettor."
