Filed 12/4/13 In re Trevon M. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                   FIFTH APPELLATE DISTRICT

In re TREVON M., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                                                F066539

         Plaintiff and Respondent,                                             (Super. Ct. No. JL003509)

                   v.
                                                                                         OPINION
TREVON M.,

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. David W.
Moranda, Judge.

         Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

         *Before Levy, Acting P.J., Detjen, J. and Peña, J.
                                        INTRODUCTION
          On appeal following adjudication of a Welfare and Institutions Code section 602,
subdivision (a) petition, Trevon M. contends there is insufficient credible evidence to
sustain the juvenile court’s finding that he committed residential burglary. We will
affirm.
                               PROCEDURAL BACKGROUND
          In a petition filed November 28, 2012, the Merced County District Attorney
alleged Trevon committed the following violations: count 1—first degree burglary (Pen.
Code,1 § 459); count 2—receiving stolen property (§ 496, subd. (a)); and count 3—
violating a prior court order, juvenile probation (Welf. & Inst. Code, § 777, subd. (a)).2
Trevon denied the allegations.
          Following contested proceedings held December 20 and 21, 2012, the juvenile
court found counts 1, 2, and 3 as alleged in the petition to be true beyond a reasonable
doubt.
          At disposition on January 8, 2013, the court ordered, inter alia, that Trevon be
committed to Bear Creek Academy’s long-term program for a period not to exceed one
year. This appeal followed.
                                  FACTUAL BACKGROUND
          On November 26, 2012, Juan Penate left his home in Merced to run errands. He
ensured all doors and windows were closed and locked before he left that morning as he
had been the victim of a burglary just a month or so prior. Forty-five minutes to an hour
later, he returned. Penate entered through the front door and then heard a “noise and
stumbling.” As he was walking toward the kitchen, two or three individuals jumped out


          1All further statutory references are to the Penal Code unless otherwise indicated.

          2Previous petitions were noted to have been filed on March 2, 2010, July 14, 2010,
January 19, 2011, June 7, 2011, November 15, 2011, and September 10, 2012. The probation
officer’s report noted the following: “This is the minor’s eleventh appearance before the court
and twenty second referral to this department.”


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and Penate was pushed down. As he got up, Penate saw the individuals running out of
the house and into his backyard. Penate testified that he believed Trevon was the
individual who pushed him down because “[h]e was the last one I saw running,” and
Penate could not identify the others because all he “saw was their backs.” He was not
certain however.
       Penate called 911 as he followed the individuals outside. His dogs were barking
in the backyard and he looked over the fence into the yard of the home next door. Penate
made eye contact with Trevon as Trevon was about to enter a side garage door of the
vacant home next door. Penate yelled at him. Trevon disappeared through the door into
the garage. Penate expected the individuals to exit the house next door through the front,
however, he heard noises that led him to believe they were jumping the fence behind the
home. The police arrived in response to his 911 call about three to four minutes later.
       Penate’s home had been ransacked. He identified a number of items missing from
the home, including cell phones, jewelry, and a PlayStation 2. He also noted other
property had been moved from one location to another within the home. A bathroom
window was open and its screen removed.
       Detective Owen Johnson of the Merced Police Department was monitoring radio
traffic on November 26, 2012, and heard the call about a possible residential burglary in
progress with a subject running from the scene. Johnson responded to the address and
received a description of the suspect from Officer Peter Lee. That description matched
the description of a young man Johnson had previously arrested for residential burglary,
Trevon M., who lived nearby.
       After confirming Trevon was still on probation, Johnson and his partner Detective
Rodriguez responded to the minor’s residence. As they approached the front door,
Johnson noted it was standing open about two to three inches. Johnson knocked and
announced their presence by shouting, “Merced Police Department, hello, hello, Merced
Police Department” and “Trevon, are you in there, Trevon?” After waiting a few



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moments and receiving no response, Johnson pushed the door open and he and Rodriguez
entered the home.
       After clearing the kitchen area past the living room, the detectives proceeded
down a hallway, passing a few bedrooms. In the third bedroom, Johnson encountered
Trevon’s stepfather, sound asleep. After Mr. M. awoke and Johnson identified himself
and explained they were looking for Trevon, the group headed back toward the front of
the home. In a front bedroom, Johnson found Trevon hiding in a closet. He was
crouched down into a ball; when the closet door was opened, Trevon lunged out and ran
to the other side of the room. Eventually he was detained.
       In the same room where Trevon was hiding, various belongings of Penate were
found. They included cell phones, rings, coins, and game controllers. Trevon was then
arrested.
                                      DISCUSSION
       Trevon argues the evidence was insufficient to sustain the juvenile court’s true
finding that he committed the crime of residential burglary because there was no
evidence he had been in the victim’s home. The victim did not observe Trevon to be one
of the individuals he encountered when he returned home. Rather, the victim only saw
him at the property located next door. As a result, Trevon maintains the juvenile court’s
finding is insufficient to establish that he entered the residence with the intent to commit
a theft or felony therein.
The Applicable Legal Standards
       The crime of burglary is defined, in pertinent part, as follows: “Every person who
enters any house … with intent to commit grand or petit larceny or any felony is guilty of
burglary.” (§ 459.) The crime of burglary and the identification of the perpetrator are
often established entirely by circumstantial evidence. (People v. Bradford (1997) 15
Cal.4th 1229, 1329; see also People v. Hinson (1969) 269 Cal.App.2d 573, 577-579
[substantial evidence defendant committed a burglary where witness identified him as the



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man she had seen crouching in front of broken store window and then fleeing from scene
after he noticed her].)
       When an appeal challenges the sufficiency of the evidence to support a juvenile
court judgment sustaining the allegations of a Welfare and Institutions Code section 602
petition, we must apply the same standard of review applicable to any claim by a criminal
defendant challenging the sufficiency of the evidence to support a judgment of conviction
on appeal.

       “Under this standard, the critical inquiry is ‘whether, after reviewing the
       evidence in the light most favorable to the prosecution, any rational trier of
       fact could have found the essential elements of the crime beyond a
       reasonable doubt.’ [Citation.] An appellate court ‘must review the whole
       record in the light most favorable to the judgment below to determine
       whether it discloses substantial evidence—that is, evidence which is
       reasonable, credible, and of solid value—such that a reasonable trier of fact
       could find the defendant guilty beyond a reasonable doubt.’ [Citations.]
       [¶] In reviewing the evidence adduced at trial, our perspective must favor
       the judgment. [Citations.] ‘… The test on appeal is whether there is
       substantial evidence to support the conclusion of the trier of fact; it is not
       whether guilt is established beyond a reasonable doubt. [Citation.]’” (In re
       Ryan N. (2001) 92 Cal.App.4th 1359, 1371-1372.)

               “‘It is axiomatic that an appellate court defers to the trier of fact on
       such determinations, and has no power to judge the effect or value of, or to
       weigh the evidence; to consider the credibility of witnesses; or to resolve
       conflicts in, or make inferences or deductions from the evidence. We
       review a cold record and, unlike a trial court, have no opportunity to
       observe the appearance and demeanor of the witnesses. [Citation.] “Issues
       of fact and credibility are questions for the trial court.” [Citations.] It is
       not an appellate court’s function, in short, to redetermine the facts.
       [Citation.] Under the substantial evidence rule, we ‘must accept the
       evidence most favorable to the order as true and discard the unfavorable
       evidence as not having sufficient verity to be accepted by the trier of fact.’
       [Citation.]” (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.)

               “‘“[T]he standard of review is the same in cases in which the People
       rely mainly on circumstantial evidence. [Citation.] ‘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. “‘If the

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       circumstances reasonably justify the trier of fact’s findings, the opinion of
       the reviewing court that the circumstances might also reasonably be
       reconciled with a contrary finding does not warrant a reversal of the
       judgment.’” [Citations.]’ [Citation.] ‘“Circumstantial evidence may be
       sufficient to connect a defendant with the crime and to prove his guilt
       beyond a reasonable doubt.”’” [Citation.]’ [Citation.]” (People v. Jones
       (2013) 57 Cal.4th 899, 960-961.)
The Juvenile Court’s Ruling
       After considering the arguments of counsel, the juvenile court found as follows:

               “[THE COURT:] … I do find that as to count 1 the burglary in the
       first degree, … I do find that the minor is guilty of that, find that offense is
       true, find it was proved beyond a reasonable doubt.

               “The close proximity of the items, the time which I think was only
       five minutes is what Detective Johnson said, the identification by the victim
       who I thought was an excellent witness, was very good, so I do find count 1
       is true.”
Later, the court stated, “Truly beyond all doubt I find that he committed the burglary.”
Our Analysis
       Juan Penate’s testimony regarding the individuals he encountered in his home
amounts to circumstantial evidence that Trevon was one of those individuals.
       While it is true Penate was not certain Trevon was the individual who knocked
him down inside the house before fleeing, Penate testified on direct examination that he
believed Trevon to be one of those individuals because “[h]e was the last one that
[Penate] saw running” away. Penate got up to follow the individuals outside, calling the
police as he did so. Once in his backyard, where his dogs were barking, Penate looked
over the fence separating his home from the vacant home next door. It was then that he
made eye contact with Trevon who was about to enter a side door of that home’s garage.
On cross-examination, Penate admitted he did not see Trevon leave his home and travel
to the house next door, but he did testify this series of events happened within “[f]ive to
six seconds” and “[i]t was all very fast.” The police arrived a few moments later.
       Although the evidence that Trevon was inside Penate’s residence is circumstantial
because Penate was not certain of his identification until he made eye contact with him,

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only a very brief period of time was at issue. In other words, from the time Penate was
surprised by individuals confronting him inside his home and knocking him down, to the
time he looked over the fence separating his home from the home next door and making
eye contact with Trevon, Penate estimated five to six seconds had elapsed. Therefore,
even if Penate’s testimony on direct examination cannot be said to place Trevon inside
his home, his testimony on both direct and cross-examination places Trevon in the
neighboring yard mere seconds later. Trevon is then seen entering the garage of that
home, and Penate heard individuals “jumping the fence” behind the home. When a
person is shown to be in possession of recently stolen property, only slight evidence of
corroboration is sufficient to support the conviction for burglary. (See People v. Gamble
(1994) 22 Cal.App.4th 446, 453.) It is therefore reasonable to infer Trevon was among
the individuals who had been inside the Penate residence, and he was following the other
individuals as they made their escape.
       The trial court found the victim’s testimony to be credible and we defer to those
findings. (In re S.A., supra, 182 Cal.App.4th at p. 1140.) Moreover, while the evidence
concerning Trevon’s presence inside the victim’s home was circumstantial, it was of such
value that it reasonably justified the juvenile court’s findings. (People v. Jones, supra, 57
Cal.4th at p. 961.) Therefore, considering all of the evidence, and viewing it in the light
most favorable to the prosecution, we find a rational trier of fact could have found the
essential elements of the crime of residential burglary were met. (In re Ryan N., supra,
92 Cal.App.4th at pp. 1371-1372.) This court concludes there is sufficient and
substantial evidence to support the juvenile court’s true finding as to the crime of
burglary.
                                      DISPOSITION
       The judgment is affirmed.




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