P. v. Jones













Filed 6/7/13 P. v. Jones 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Sacramento)

----








>

THE PEOPLE, Plaintiff and Respondent, v. RAVEN JONES, JR., Defendant and Appellant.

C068258 (Super. Ct. No. 10F07007)

Defendant
Raven Jones, Jr., was part of a group of young men who committed three href="http://www.fearnotlaw.com/">residential burglaries on an October
night in Folsom. They were caught
attempting to break into a fourth house.
When police arrived, defendant was in the front passenger seat of
codefendant Perry Aquino’s car, which was parked in front of the house. Aquino was on the porch. Another man, Jeffrey Santos-Green, was
alleged to have been part of the group.
He was found about a mile away, walking through a parking lot in the
rain, and was believed to have jumped the back fence when defendant and Aquino
were arrested. Property taken during the
three burglaries was found in Aquino’s car.
Defendant and Aquino were convicted by jury of three counts of href="http://www.mcmillanlaw.com/">first degree burglary and one count of
attempted first degree burglary. The
trial court sentenced each man to state prison for an aggregate term of five
years and four months.href="#_ftn1"
name="_ftnref1" title="">[1]

On appeal,
defendant asserts: (1) there was
insufficient evidence to prove that he either directly perpetrated or aided and
abetted the commission of the burglaries and attempted burglary; and (2) the
trial court prejudicially erred in declining his request to instruct the jury
with certain language from CALJIC No. 3.01 on aiding and abetting. We disagree.
As we explain, the record contains substantial evidence defendant aided
and abetted the commission of the crimes.
We also conclude the jury was appropriately instructed with CALCRIM No. 401
on aiding and abetting. Accordingly, we
affirm the judgment.

FACTS

On October 23, 2010, at about 10:30 p.m., Glenda Harr was alone in her
upstairs bedroom when the doorbell rang.
Not expecting any visitors, Harr went to her office and looked out the
window to see who was at her house. As
she looked out the window, someone “started pounding on [her] door.” Through the rain, she saw a “grayish” sedan
parked in front of the house. Harr
testified there were “two or three” young men “exiting that car and returning
back to the car and exiting the car and that kind of thing.” She continued: “[T]hey were entering and exiting out of
different car doors. And so they were
going across the street. They were -- I
could see someone exiting my front door and going back to the car. And then I saw somebody else get out and go
across my driveway. And I could tell
they were probably going in my backyard or the neighbor[’s backyard].” Feeling “a little panicked” and “very
outnumbered,” she called 911.

Harr told
the emergency dispatcher: “[T]he one
passenger got out and came to the back of my house. And the other one now is parked (whispers) by
the car.” After describing the car, Harr
continued: “Well, the one person hasn’t
come back from the side of my house, so I don’t know if they’re breaking
in.” A short time later, Harr said: “[S]omebody just went back in the car” and
clarified that this person got into “the passenger side” of the car. Harr then told the dispatcher that she was
hearing noises coming from her backyard patio and left the window to try to
hear them more clearly. When she
returned to the window, Harr said: “That
one came back and he left.” The
following exchange then took place between Harr and the dispatcher: “[Harr:] And again, the driver side is open. [¶] [Dispatcher:]
The driver side door is open? [¶] [Harr:] Oh my gosh, yes and they’re coming to the side
of my house. This one’s coming to the
side too -- [¶] [Dispatcher:] They’re coming to the side of the house? [¶] [Harr:] Yes!
Yes! Yes! Like in my backyard. Oh, no!”
After the dispatcher assured Harr that a police unit was approaching the
house, Harr yelled: “They broke the
window! They’re in!”

Officers
with the Folsom Police Department parked a short distance from Harr’s
house. As the officers approached the
scene on foot, they were advised by dispatch that a window had been broken. Closing the distance between themselves and
the house in a matter of seconds, the officers found Aquino standing behind a
pillar on Harr’s front porch and took him into custody. They then found defendant seated in the front
passenger seat of the sedan, which was owned by Aquino, ordered him out of the
car, and also took him into custody.
Believing there to be a third person involved in the attempted burglary,
officers searched Harr’s backyard, but found no one.href="#_ftn2" name="_ftnref2" title="">[2] They did find that the back door’s window
pane had been shattered by a large rock.
The backyard abutted a golf course.
Officers shined their flash lights over the back fence, but did not see
anyone on the course.

After
clearing the backyard and making sure the house was also free of intruders, one
of the officers took Harr’s statement.
Harr explained that before the officers arrived, she watched one of the
young men “get into the front passenger seat.”
She also explained that she saw “two or three individuals” getting “in
and out of that car.” In her trial
testimony, she confirmed that “somebody came in and out [of] at least three of
the doors of the vehicle,” and that someone got in and out of the passenger
side “a couple times.” However, at
trial, she could not say for sure whether this person got into the front or
rear passenger seat.

Officers
searched Aquino’s car and found property that had been taken from three other
houses that night. The burglarized
houses were in close proximity to each other.
In each of these burglaries, the intruders gained entry by breaking a
window. We also add that the police dog
handler who assisted in the search of Harr’s backyard was called to the scene
of one of the other burglaries. On the
way, about a mile from Harr’s house and on the other side of the golf course,
the officer found Santos-Green walking through the parking lot of an
Alzheimer’s care facility. He was wet
and had grass on his shoes and pants.
Defendant, Aquino, and Santos-Green were each from the Fairfield
area.

DISCUSSION

>I

>Sufficiency
of the Evidence

Defendant
contends there is insufficient evidence to support his burglary and attempted
burglary convictions. Specifically,
defendant argues: “All the prosecution
proved here was that [he] was in the company of the burglars and undoubtedly
knew what they were up to. But this
alone is not a crime. The prosecution
had to produce substantial evidence that [defendant] had some intent to commit
the crimes, or to aid or support in their commission. And the prosecution produced no evidence
whatsoever to prove that fact.” We
disagree.

“‘To
determine the sufficiency of the evidence
to support a conviction, an appellate court reviews the entire record in the
light most favorable to the prosecution to determine whether it contains name="SR;32159">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.’ [Citations.]” (People v. Wallace (2008) 44 Cal.4th
1032, 1077; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d
560, 572-574].) The standard of review
is the same in cases in which the prosecution relies on circumstantial
evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) “‘Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which suggests guilt
and the other innocence [citations], it is the jury, not the appellate court
which must be convinced of the defendant’s guilt beyond a reasonable
doubt.’” (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) Accordingly, we must affirm the judgment if
the circumstances reasonably justify the jury’s finding of guilt regardless of
whether we believe the circumstances might also reasonably be reconciled with a
contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514; People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

“Every
person who enters any house . . . with intent to commit grand or
petit larceny or any felony is guilty of burglary.” (Pen. Code, § 459.) “Every burglary of an inhabited dwelling
house . . . is burglary in the first degree.” (Pen. Code, § 460.) “An attempt to commit a crime requires the
specific intent to commit the target crime . . . and a direct but
ineffectual act, beyond mere preparation, done towards its commission.” (People
v. Booker (2011) 51 Cal.4th 141, 175.)
Defendant does not dispute that the prosecution proved three first
degree burglaries and one attempted first degree burglary were committed the
night of October 23, 2010. Nor does
he dispute he was in the company of the burglars as the crimes were being
committed and had knowledge of their criminal purpose.

“Under
California law, a person who aids and abets the commission of a crime is a
‘principal’ in the crime, and thus shares the guilt of the actual
perpetrator.” (People v. Prettyman (1996) 14 Cal.4th 248, 259, citing Pen. Code, § 31.) “‘[A] person aids and abets the commission of
a crime when he or she, acting 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. Gonzales (2011) 52 Cal.4th 254, 295-296, quoting >People v. Beeman (1984) 35 Cal.3d 547,
561.) Thus, while the prosecution did
not prove defendant was the one who rang Harr’s doorbell, or pounded on her
door, or ran across her driveway and into her backyard, or broke the back
door’s window pane with a rock, he is nevertheless guilty of attempted burglary
if the prosecution proved, by direct or circumstantial evidence, that he aided
or encouraged the commission of the crime with knowledge of his companions’
unlawful purpose and with the intent to commit, encourage, or facilitate the
commission of the crime. And if the
prosecution proved defendant aided and abetted the commission of this attempted
burglary, a reasonable inference arises that he also aided and abetted the
three burglaries committed prior to their arrival at Harr’s house.

“Whether a
person has aided and abetted in the commission of a crime is a question of
fact, and on appeal all conflicts in the evidence and attendant reasonable inferences
are resolved in favor of the judgment.
Among the factors which may be considered in determining aiding and
abetting are: presence at the crime
scene, companionship, and conduct before and after the offense.” (In re
Juan G. (2003) 112 Cal.App.4th 1, 5, fn. omitted; People v. Campbell (1994) 25 Cal.App.4th 402, 409.)

In >People v. Guzman (1996) 45 Cal.App.4th
1023 (Guzman), the burglary victim
(Hansen) looked out his window and saw four men (including Guzman) and a child
standing next to a truck that was pulled up to his open garage door. In the truck bed was his son’s motorcycle,
which had been in the garage. Seeing
Hansen, the burglars fled in the truck.
Hansen gave chase, wedged the truck to a stop against a hillside, and
got out of his vehicle. The burglars
also got out. Guzman stood next to the
child while two of the other men beat up Hansen. One of these men moved Hansen’s vehicle out
of their way. The burglars again drove
off in the truck. A few seconds later,
Hansen got up and resumed his pursuit, eventually cornering the truck at a
dead-end street near the freeway. Except
for Guzman, the burglars fled on foot.
Police officers, who witnessed the tail end of the chase, followed
Hansen to the dead-end street and arrested Guzman. One of the other burglars was apprehended on
the other side of the freeway. (>Id. at pp. 1025-1026.) Finding sufficient evidence to convict Guzman
of burglary as an aider and abettor, the Court of Appeal explained that Guzman
“was with [the burglars] when they pulled up to a stranger’s open garage in a
hillside residential area and stole a motorcycle out of the garage,” he “stayed
with them throughout the chase, even though he had the opportunity to stay
behind when Hansen stopped the burglars [the first time] and could have
demanded they stop and let him out,” and he “may well have stayed behind when
the burglars were cornered near the freeway since he was too intoxicated or
confused to flee with the others.” (>Id. at p. 1027.) Thus, Guzman’s presence at the scene of the
burglary and his conduct after the crime was discovered supplied sufficient
circumstantial evidence he aided or encouraged the commission of the crime with
knowledge of the burglars’ unlawful purpose and with the intent to commit,
encourage, or facilitate the commission of the crime.

Here, the
evidence that defendant aided and abetted the burglaries and attempted burglary
is more substantial than that existing in Guzman,
supra, 45 Cal.App.4th 1023. Like >Guzman, defendant was with a group of
men who pulled up to a stranger’s house to commit a burglary. But unlike Guzman, here, we have additional evidence defendant knew the
criminal purpose of his companions prior to arriving at Harr’s house. First, by the time the burglars pulled up to
the house, they had already committed three burglaries. After the first burglary, there can be no
doubt defendant knew the criminal purpose of that night’s excursion. Second, there is circumstantial evidence
that, even before the first burglary, defendant knew he was in for a night of
burglary. He and Aquino (and
Santos-Green) lived in the Fairfield area -― nowhere near Folsom. From the fact they were discovered in Folsom,
late at night, in the middle of a rain storm, having committed three burglaries
and in the process of committing a fourth, the jury could reasonably infer they
drove from Fairfield to Folsom for the purpose of committing burglaries. Thus, similar to Guzman, where Guzman’s conduct after
the crime was discovered (i.e., fleeing with the burglars without staying
behind when stopped or asking to be let out) supplied circumstantial evidence
he shared his companion’s criminal purpose, here, defendant’s conduct >prior to and during the crimes (i.e.,
driving from Fairfield to Folsom with the burglars and remaining with them
while they committed three burglaries and attempted to commit a fourth) also
supplies an inference that defendant shared his companions’ criminal
purpose.

Based on >Guzman, supra, 45 Cal.App.4th 1023, the
foregoing circumstances would be enough to support defendant’s
convictions. But the prosecution
supplied an additional piece of evidence.
Unlike Guzman, where Hansen
did not see the burglars taking the motorcycle from his garage, here, Harr
described the actions of the burglars as they attempted to break into her
house. She explained there were “two or
three” young men “exiting [Aquino’s] car and returning back to the car and
exiting the car and that kind of thing.”
She continued: “[T]hey were
entering and exiting out of different car doors. And so they were going across the
street. They were -- I could see someone
exiting my front door and going back to the car. And then I saw somebody else get out and go
across my driveway. And I could tell
they were probably going in my backyard or the neighbor[’s backyard].” She later confirmed that “somebody came in
and out [of] at least three of the doors of the vehicle,” and further explained
someone got in and out of the passenger side “a couple times.” At trial, she could not say for sure whether
this person got into the front or rear passenger seat. However, in her statement to police, she said
she watched one of the young men “get into the front passenger seat.” This was consistent with her statements to
the 911 dispatcher. During that call,
Harr stated: “[S]omebody just went back
in the car” and clarified that this person got into “the passenger side” of the
car. A short time later, she described
the driver (presumably Aquino) and another man coming to the side of her house,
and shortly thereafter the back door window pane was broken. Police arrived within seconds and found
Aquino on the front porch and defendant seated in the front passenger
seat.

From this
evidence, the jury could reasonably conclude defendant was the person Harr saw
getting into the front passenger seat.
Indeed, that is where defendant was found within seconds of the back
door’s window pane being broken. The
fact he had to “get into” that seat, leads to the inexorable conclusion he was
outside the vehicle before he got in, which would also be consistent with Harr’s
statement that “somebody came in and out [of] at least three of the doors of
the vehicle.” And from the fact Harr saw
“two or three” young men doing various things outside the car, e.g., running
across the street and then back to the car, going across her driveway and into
either her backyard or her neighbor’s backyard, walking from her front door to
the car after ringing the doorbell and pounding on the door, the jury could
reasonably conclude defendant was doing one of these things prior to getting
into the passenger seat. Thus, contrary
to defendant’s argument on appeal, there is evidence he did something “other
than to sit in Aquino’s car while Aquino and his companion(s) committed a
string of burglaries.”

We conclude
there is sufficient evidence that is reasonable, credible, and of solid value,
that defendant aided or encouraged the commission of the burglaries and
attempted burglary with knowledge of the burglars’ unlawful purpose and with
the intent to commit, encourage, or facilitate the commission of the crimes.

>II

>Instructional
Error

We also
reject defendant’s assertion the trial court prejudicially erred in declining
his request to instruct the jury with certain language from CALJIC No. 3.01
on aiding and abetting.

The jury
was instructed with CALCRIM No. 401 on aiding and abetting: “To prove that a 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 [sic]
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 the defendant was present at the scene of the crime or failed
to prevent the crime [sic] 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.”


The trial
court declined defendant’s request that the jury also be given the following
language from CALJIC No. 3.01: “Mere presence at the scene of a crime which
does not itself assist the commission of the crime does not amount to aiding
and abetting. [¶] Mere knowledge that a crime is being committed
and the failure to prevent it does not amount to aiding and abetting.” Defendant argues this was error because the
CALJIC language “states affirmatively that ‘mere presence . . . does
not amount to aiding and abetting, [and] mere knowledge . . . does
not amount to aiding and abetting,’” while the CALCRIM language “is highly
equivocal” and “subtly invites jurors to switch the presumption. It says that if the defendant was present,
‘you may consider that fact in
determining whether the defendant was an aider and abettor,’ then suggests that
this ‘by itself’ is not
enough.” This argument fails for several
reasons. First, the CALCRIM language is
not equivocal. It is simply a more
complete statement of the law than defendant would prefer.

Second,
contrary to defendant’s argument, CALCRIM No. 401 does not contain a
“presumption” in favor of finding aider and abettor liability. Instead, it accurately informs the jury that
certain circumstances, i.e., presence at the scene of the crime and failure to
prevent the crime, may be considered in determining whether defendant was an
aider and abettor. The instruction then
appropriately cautions the jury that these facts alone do not establish aider
and abettor liability. This is an
accurate statement of the law. (See >People v. Durham (1969) 70 Cal.2d 171,
181 [presence at scene of crime or failure to prevent crime are circumstances
that can be considered by jury in determining whether defendant was an aider
and abettor, but neither circumstance necessarily makes him or her an aider and
abettor].)

Third,
defendant’s requested language from CALJIC No. 3.01 is duplicative. As the Court of Appeal explained in >People v. Stallworth (2008) 164
Cal.App.4th 1079: “CALCRIM No. 401 explicitly states that mere
presence is insufficient to establish aiding and abetting: ‘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.’” (>Id. at p. 1103.) Moreover, “CALCRIM No. 401 clearly
provides that knowledge that the perpetrator intends to commit the crime is
only one of the four elements for aiding and abetting liability. If the jury found mere knowledge alone, by
the terms of CALCRIM No. 401, that would be insufficient to establish
aiding and abetting liability. This
point is even emphasized by the portion of the instruction that reads as
follows: ‘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.’” (Ibid.)

Finally,
rule 2.1050 of the California Rules of Court provides that “[t]he
California jury instructions approved by the Judicial Council [i.e., CALCRIM]
are the official instructions for use in the State of California.” (Cal. Rules of Court, rule 2.1050(a).) Moreover, the “Guide for Using Judicial
Council of California Criminal Jury Instructions (CALCRIM)” advises: “The CALJIC and CALCRIM instructions should >never be used together. While the legal principles are obviously the
same, the organization of concepts is approached differently. Mixing the two sets of instructions into a
unified whole cannot be done and may result in omissions or confusion that
could severely compromise clarity and accuracy.” (Use Guide to CALCRIM Instructions (2012) p.
xxvi.) Thus, the trial court properly
declined defendant’s request to supplement CALCRIM No. 401 with the
language from CALJIC No. 3.01.

DISPOSITION

The
judgment is affirmed.







HOCH , J.







We concur:







ROBIE , Acting P. J.







MURRAY , J.