Filed 4/17/13 P. v. James CA4/1
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                     COURT OF APPEA, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062415

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. CE318583)

KENT JAMES,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego 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




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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


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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. (Ibid.)

       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


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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. 401.1)

       Direct evidence of the defendant's mental state is rarely available and may be

shown with circumstantial evidence. (People v. Beeman, supra, 35 Cal.3d at pp. 558-

559.) Although mere presence at a crime scene and 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


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."
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Lynette G. (1976) 54 Cal.App.3d 1087, 1094; People v. London (1988) 206 Cal.App.3d

896, 903.)

       "It has been consistently held that one who was present for the purpose of

diverting suspicion, or to serve as a lookout, or to give warning of approach of anyone

seeking to interfere," is liable as an aider and abettor, and thus a principal in the crime

committed. (People v. Silva (1956) 143 Cal.App.2d 162, 169.) Whether a 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.)].)




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       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 People v. Albillar (2010) 51

Cal.4th 47, 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




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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.




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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.




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