Filed 7/24/14 P. v. Grace CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B249353

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA085315)
         v.

DAVID JERMAINE GRACE, JR. et al.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Candace
Beason, Judge. Affirmed.
         Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and
Appellant, David Jermaine Grace.
         Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant, Ramon Robert Wright.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and J.
Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
       Appellants Ramon Robert Wright and David Germaine Grace were each
convicted, following a jury trial, of one count of first degree residential burglary in
violation of Penal Code1 section 459 and one count of conspiracy to commit burglary in
violation of section 182, subdivision (a)(1). Following appellants’ waiver of their jury
trial rights, the trial court found true the allegations that each had suffered a prior serious
or violent felony conviction within the meaning of sections 667 and 1170.12 (the Three
Strikes law). The court sentenced appellant Grace to a total term of 13 years in state
prison. Appellant Wright, who was on probation at the time of the current offenses,
received a total term of 18 years, 4 months in state prison.
       Appellants appeal from the judgment of conviction, contending there is
insufficient evidence to support their convictions. We affirm the judgment.


                                             Facts
       On January 17, 2012, at about 9:15 a.m., Harry Yasuda and his wife left their
home at 1274 Ridgecrest Street in Monterey Park.
       At about 9:15 or 9:20 a.m., Darwin Sen, who lived at 1083 Ridgecrest, noticed a
metallic orange car heading up the street at about forty miles per hour. Fifteen or twenty
minutes later, Sen noticed the car go by again. About ten minutes later, Sen called 911.
He told the operator that a 2010 or 2011 metallic orange Dodge Charger with out-of-state
license plates was driving around the neighborhood and had driven down Ridgecrest
twice in a fifteen minute span. Sen also told the 911 operator that there had previously
been some burglaries in the neighborhood.
       At 10:36 a.m., Monterey Park Police Department Officer Danny Salazar
responded to Sen’s 911 call. As Officer Salazar drove north on Ridgecrest, he saw an
orange Dodge Charger parked just north of the Yasuda residence. Kiara Camacho was in
the driver’s seat, and the engine was running. Sen later identified Camacho from a
photographic line-up at the driver of the car he had seen and reported. Officer Salazar


1
       All further statutory references are to the Penal Code unless otherwise specified.
                                               2
went up to the car and began talking to Camacho. Her cell phone began to ring
continuously. Later, when the car was searched, police found two flathead screwdrivers
and a box cutter in the trunk. These tools are often used by burglars to pry open windows
or screens or to cut screens.
         Other police officers came to the area. Officer Arthur Rousseau arrived at about
10:45 a.m. and began checking houses for signs of possible burglaries. At the Yasuda
residence at 1274 Ridgecrest, he saw an open bathroom window from which the screen
had been removed. He then saw that a sliding glass door at the rear of the house was
partially open, and a screwdriver was on the floor beside it. While Officer Rousseau was
investigating, Yasuda returned home. Yasuda inspected the house, noted that the
contents of chests of drawers had been dumped out, and discovered that three watches
and some collectible silver dollars were missing. One of the watches was a gold-plated
Seiko.
         Motorcycle Officer Jay Silverman came to the area at about the same time as
Officer Rousseau, and saw appellant Wright, whom he believed to be a potential suspect.
Officer Silverman approached appellant Wright and asked to speak with him. Appellant
Wright walked away, crossing the street toward appellant Grace. When Officer
Silverman walked toward the two men, they moved away and began to run. The men
entered a parking lot. Officer Silverman called Officer Peter Palomino and told him two
suspects were running away from him through the parking lot at 1576 Monterey Pass
Road toward the 7-Eleven store at 1600 Monterey Pass Road.
         Officer Palomino looked in the parking lot of the 7-Eleven store and saw appellant
Wright standing on top of a dumpster. Appellant Wright then climbed up to the roof.
Officer Palomino opened the lid of the dumpster and found appellant Grace inside.
Appellant Wright eventually came down from the roof. A gold Seiko watch was found in
appellant Wright’s pocket.
         Officer Rousseau showed the watch found in appellant Wright’s pocket to Yasuda,
and Yasuda responded that it was his. At trial, Yasuda put the watch on his wrist and
showed that it fit him perfectly.

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       Sen later made a partial identification of appellant Grace as the front seat
passenger of the car he had seen. Sen did not identify appellant Wright.
       Telephone records showed that appellants called or attempted to call each other six
times between 6:59 a.m. and 7:33 a.m. on the day of the burglary. Appellant Grace and
Camacho exchanged text messages as early as 7:30 a.m. In one message, Camacho
asked: “[W]e going in your car or mine.” Between 10:07 a.m. and 10:37 a.m., the
approximate time of the burglary, appellants made or attempted to make nine calls to
each other.
       While appellant Wright was in a courthouse lockup cell, he made a telephone call
which was recorded by the Los Angeles County Jails’ Inmate Telephone Monitoring
System. Appellant Wright said: “I can beat it, I can really beat it. Cause they don’t have
no witnesses saying we was in that house, they don’t have no evidence saying we was in -
- - no evidence proving we was in that house. I got my stuff down on paper what I’m
gonna give to my attorney to pull up the stuff because for a burglary you need these six
facts that’s for sure to make it a burglary . . . so I have to get that dropped. And I need
that girl to come to court and say what she say. And if she say something different we
can cross-examine her out and then they won’t be able to use nothing she talking about.
And then all they would have was that watch. That watch would be county time,
receiving stolen property, and time served or something.
       A few months later, appellant Grace made a telephone call from North County
Correctional Facility which was recorded. Appellant Grace said: “You want to talk
about motive? That’s your motive. That’s why people steal. Right? They don’t steal,
some people - - most people, they steal for financial reasons, money. [¶] I don’t have a
big brother to teach me or tell me to do this or that. Basically, I’m doing everything for
you. I am fighting time. I’m doing all this [type] of shit so I can tell you not to do it.
[¶] It ain’t for me. It ain’t for nobody. And it took this last time to see, damn, this ain’t
for me. The money, all this money shit ain’t worth it, it ain’t worth it at all.”




                                              4
                                         Discussion
       Appellants contend there is no evidence that they entered the Yasuda residence,
and so there is insufficient evidence to support their convictions for burglary and
conspiracy to commit burglary. We do not agree. There is substantial circumstantial
evidence linking appellants to the conspiracy and the burglary.
       “‘In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we “examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance allegations.
[Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment
may not be reversed simply because the circumstances might also reasonably be
reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility. [Citations.]’” (People v. Nelson (2011) 51 Cal.4th
198, 210.)


       1. Burglary
       The crime of burglary consists of the unlawful entry into a building with the intent
to commit a felony or theft. (People v. Montoya (1994) 7 Cal.4th 1027, 1041; §459.) If
the building is an inhabited dwelling, the burglary is in the first degree. (§ 460, subd. (a).


       a. Appellant Wright
       Appellant Wright was found in possession of Yasuda’s recently stolen watch near
the location of the burglary.
       “When . . . a defendant is found in possession of property stolen in a burglary
shortly after the burglary occurred, the corroborating evidence of the defendant’s acts,

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conduct, or declarations tending to show his guilt need only be slight to sustain the
burglary convictions. [Citations.]” (People v. Mendoza (2000) 24 Cal.4th 130, 176.)
       Appellant Wright did not live in the area, and had no apparent reason to be there.
Further, telephone records suggest that his presence in the area was not just random
chance, but a planned trip with appellant Grace and Camacho. Camacho’s car had tools
in it which could be used for burglary. Thus, the circumstances of appellant Wright’s
presence in the area had a slight tendency to show guilt.
       When police tried to speak with appellant Wright, he fled, which supports an
inference of consciousness of guilt. Later, while awaiting trial, appellant Wright
implicitly acknowledged that the watch was stolen, stating: “And then all they would
have was that watch. That watch would be county time, receiving stolen property . . . .”
He also stated that he would “beat the rap” because the prosecutor did not have any
evidence he was in the house rather than stating that he would win because he was
innocent. Viewing the evidence in the light most favorable to the judgment, these
statements can be reasonably understood as showing a consciousness of guilt.
       Appellant Wright’s possession of the recently stolen watch near the burglarized
residence, together with the circumstances surrounding his presence in the area and his
acts and statements showing consciousness of guilt, is sufficient evidence to support his
burglary conviction.
       We do not agree with appellant Wright that the evidence is insufficient to show
that the watch in his pocket belonged to Yasuda because the watch was mass-produced
with no distinctive markings. The watch matched the description Yasuda gave to police
before appellants were detained. When shown the watch by police, Yasuda said it was
his. Yasuda testified that he had received the watch as a present for his 45th wedding
anniversary and so had had the watch for well over ten years. He showed the jury that
the watch fit him “perfectly.” It is more than reasonable to infer that the watch was
Yasuda’s watch. It is much less reasonable to infer that the ten year old watch belonged
to twenty year old appellant Wright, who just happened to be carrying it in his pocket


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when detained by police near the location where Yasuda’s identical watch was stolen and
within a short time after the theft occurred.


       b. Appellant Grace
       No stolen property was found on appellant Grace. There is, however, substantial
evidence to show that he aided and abetted appellant Wright in the commission of the
burglary.
       “‘A person aids and abets the commission of a crime when he or she, (i) with
knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose
of committing, facilitating or encouraging commission of the crime, (iii) by act or advice,
aids, promotes, encourages or instigates the commission of the crime.’” (People v.
Culuko (2000) 78 Cal.App.4th 307, 326-327.) Aiding and abetting a general intent crime
does not requires a specific intent. (People v. Torres (1990) 224 Cal.App.3d 763, 770.)
“The aider and abettor may have only the vaguest idea of the precise ‘act’ by which the
perpetrator will commit the crime.” (People v. Culuko, supra, 78 Cal.App.4th at p. 327.)
       “Among the 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.” (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) Here,
all three factors support a finding that appellant Grace aided and abetted appellant Wright
in the commission of the burglary.
       Appellant Grace was discovered near the scene of the burglary around the time the
burglary occurred. Appellant Grace’s involvement with appellant Wright began before
the burglary and continued until the men were arrested by police. Appellants called or
attempted to call each six times between 6:59 a.m. and 7:33 a.m. This activity supports
an inference of planning, particularly when considered with appellant Grace’s
contemporaneous texts with Camacho about transportation. Appellants called or
attempted to call each other nine times between 10:02 a.m. and 10:37 a.m., during the
estimated time of the commission of a burglary. These calls support an inference that
appellant Grace was acting as a look-out, or in some other support role. Once police

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arrived at the scene, appellants fled from police together, supporting an inference of
consciousness of guilt.


         2. Conspiracy
         “A conviction of conspiracy requires proof that the defendant and another person
had the specific intent to agree or conspire to commit an offense, as well as the specific
intent to commit the elements of that offense, together with proof of the commission of
an overt act ‘by one or more of the parties to such agreement’ in furtherance of the
conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416.) The commission of the
target offense in furtherance of the conspiracy satisfies the overt act requirement.
(People v. Jurado (2006) 38 Cal.4th 72, 121.)
         “The act of one conspirator is the act of all. Each is responsible for everything
done by his coconspirators, including those things that follow as the probable and natural
consequences of the execution of the conspiracy.” (People v. Zacarias (2007) 157
Cal.App.4th 652, 657.)
         “To prove an agreement, it is not necessary to establish the parties met and
expressly agreed; rather, ‘a criminal conspiracy may be shown by direct or circumstantial
evidence that the parties positively or tacitly came to a mutual understanding to
accomplish the act and unlawful design.’” (People v. Vu (2006) 143 Cal.App.4th 1009,
1025.)
         There is ample circumstantial evidence to support appellants’ convictions for
conspiracy to commit burglary.
         As we discuss, above, there is substantial evidence to show that appellants
committed a burglary. This same evidence is sufficient to show a pre-existing conspiracy
to commit that burglary
         Appellants made repeated phone calls to each other on the morning of the burglary
and at the same time appellant Grace was exchanging texts with Camacho about
transportation. Camacho and appellant Grace were observed driving around Yasuda’s
neighborhood before the time of the burglary. Appellant Wright was later found on foot

                                               8
in the same area. None of the three lived in the area or had any apparent reason to be
there. It is more than reasonable to infer that the three agreed to come to the area for a
specific purpose.
       Camacho’s car contained a box cutter and two flathead screwdrivers, which are
often used by burglars. This supports an inference that appellants came to the area for the
purpose of committing a burglary.2 Appellants called or attempted to call each other nine
times during the period of the burglary, again suggesting coordinated and preplanned
action. As we discuss above, the evidence shows the men did commit a burglary, thus
satisfying the overt act requirement.
       Appellant Wright relies on People v. Powers-Monachello (2010) 189 Cal.App.4th
400 for the proposition that mere association prior to an offense is not sufficient to
establish a conspiracy to commit the offense. Appellant Wright is certainly correct that
mere association is not sufficient to prove a conspiracy, but more than mere association
was present here. As we discuss, appellants both went to the location of the burglary at
the same time, both remained in the area during the time the burglary was committed,
they communicated or attempted to communicate with each other during the time the
burglary was being committed and both fled the scene together when police arrived. The
coordinated nature of appellants’ behavior supports a reasonable inference that the
behavior was agreed upon in advance.




2
       Although the tools remained in the car during the Yasuda burglary, it appears that
no tools were needed to force entry into the Yasuda residence.
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                                       Disposition
      The judgment is affirmed.
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                           MINK, J.*


We concur:



      TURNER, P. J.



      KRIEGLER, J.




*
      Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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