Filed 5/20/15 P. v. Matz CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065828

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD248753)

RICHARD MATZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Sharon B. Majors-Lewis, Judge. Affirmed, as modified.

         Alissa L. Bjerkhoel, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.



         A jury found Richard Matz guilty of burglary, but acquitted him of grand theft.

Codefendant, James Daniel Napuunoa, pleaded guilty to both charges before trial. The
trial court granted Matz felony probation on various conditions, including that he "[h]ave

no contact with the co-defendant[]" Napuunoa. Matz appeals, contending the trial court

prejudicially erred by admitting surveillance video of an earlier burglary involving only

Napuunoa. He also asserts the probation condition that he "[h]ave no contact with the co-

defendant[]" is unconstitutionally vague because it lacks a knowledge component with

respect to the type of contact prohibited. We reject Matz's first contention, but modify

the probation condition to include an express knowledge requirement.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In March 2013, the La Quinta Inn located in Old Town San Diego, California

underwent renovations. During the renovations, televisions were being stored in a locked

storage room in the underground garage. On March 16, surveillance video depicted a

man, later identified as Napuunoa, back a vehicle up to the storage room, go into the

room, load nine televisions from the room into the vehicle and drive away. Over Matz's

objections, the prosecution showed this video to the jury.

       Four days later, surveillance video captured Napuunoa arriving at the La Quinta

Inn storage area in a white GM pickup truck driven by Matz. Before trial, the

surveillance video of this incident was lost. Four witnesses watched the video before it

was lost and testified as to its contents at trial. These witnesses were Karina Winkler, the

Inn's general manager, Juan Serrano, an Inn maintenance employee, John Larson, the

responding officer, and Brandon Gaines, the detective assigned to investigate the

incidents.



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        The video showed a man, later identified as Matz, park the pickup truck in front of

the storage room. Napuunoa then got out of the passenger side of the truck. After he was

unable to open the door to the storage room, he kicked the door open. Napuunoa took

one television out of the storage unit and put it in the back of the truck. When Napuunoa

returned to the storage unit a second time, Matz exited the truck and moved towards the

back of the truck, outside the view of the surveillance cameras. Matz remained out of

view at the back of the truck, while Napuunoa made two more trips into the storage unit,

taking four more televisions and loading the televisions into the back of the truck.

Winkler stated that Matz did not appear upset or surprised by Napuunoa's actions, but

appeared to be helping Napuunoa. Larson also noted that Matz did not appear upset or

surprised by Napuunoa's actions. The men then entered the vehicle and Matz drove it

away.

        As the vehicle drove away, a video camera captured the license plate number and

the televisions in the back of the truck. Police later determined that the truck was

registered to Matz's father, Richard Matz, Sr. At trial, Matz, Sr. testified that Matz had

possession of the truck on the date of the burglary. The jury was shown five still

photographs taken from the surveillance video before it was lost. Two photographs

depicted Napuunoa trying to open the door to the storage unit. One photograph depicted

Matz exiting the truck, another depicted the license plate on the back of the truck and one

depicted the truck driving towards the storage unit.




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                                       DISCUSSION

                             I.   Evidence of Earlier Burglary

       Matz contends the trial court erred in admitting any evidence of the March 16

burglary involving only Napuunoa, including the surveillance video footage, because it

was irrelevant. He claims admission of the evidence prejudiced him as a reasonable

probability existed he would have obtained a more favorable result absent the error, even

if that meant a hung jury. We disagree; however, even assuming the trial court erred in

admitting the evidence, the assumed error was harmless.

       Only relevant evidence is admissible (Evid. Code, § 350), with relevant evidence

defined as evidence "having any tendency in reason to prove or disprove any disputed

fact that is of consequence to the determination of the action." (Evid. Code, § 210.)

"This definition of relevant evidence is manifestly broad. Evidence is relevant when no

matter how weak it is it tends to prove a disputed issue." (In re Romeo C. (1995) 33

Cal.App.4th 1838, 1843.) A court has broad discretion in determining the relevance of

evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) We will not disturb the

exercise of that discretion absent " 'a showing that the court exercised its discretion in an

arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of

justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

       Here, Matz was charged with burglary on the theory that he aided and abetted

Napuunoa. "[A]n aider and abettor is a person who, '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,

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promotes, encourages or instigates, the commission of the crime.' " (People v. Prettyman

(1996) 14 Cal.4th 248, 259.) While the actual perpetrator must have whatever mental

state is required for the charged crime, an aider and abettor must "act with knowledge of

the criminal purpose of the perpetrator and with an intent or purpose either of

committing, or of encouraging or facilitating commission of, the offense." (People v.

Beeman (1984) 35 Cal.3d 547, 560.) The intent required for aiding and abetting may be

established by circumstantial evidence (id. at pp. 558-559), including the defendant's

presence at the scene of the crime, companionship, and conduct before and after the

offense (People v. Campbell (1994) 25 Cal.App.4th 402, 409). It is unnecessary for the

primary actor to expressly communicate his criminal purpose to the defendant, as that

purpose may be apparent from the circumstances. (People v. Nguyen (1993) 21

Cal.App.4th 518, 531-532.)

       Because the actual perpetrator must have the mental state required for the crime

charged, Napuunoa's intent to commit the second burglary was a fact the prosecution

needed to prove to convict Matz of aiding and abetting the burglary. (People v. Beeman,

supra, 35 Cal.3d at p. 560.) Matz claims he never contested Napuunoa's intent to commit

the second burglary. He presumably makes this argument because Napuunoa's actions,

as described by the witnesses that viewed the lost surveillance video, strongly suggest

Napuunoa harbored the requisite intent to steal.

       Nevertheless, to convict Matz of aiding and abetting burglary, the jury needed to

determine whether Napuunoa committed the crime of burglary, which necessarily

required the jury to determine whether Napuunoa harbored the requisite intent. (See

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People v. Thornton (2000) 85 Cal.App.4th 44 [defendant's failure to contest an element

of the drug charge he was facing did not preclude the prosecution from presenting

evidence as to that element].) Here, Napuunoa's earlier burglary was circumstantial

evidence of his intent to steal during the second burglary involving Matz. Thus, the

evidence of the earlier burglary was, at most, cumulative and its admission was harmless

error. (People v. Houston (2005) 130 Cal.App.4th 279, 296 ["The admission of

cumulative evidence, particularly evidence that is tangentially relevant to establishing a

defendant's guilt has been found to be harmless error."])

       Moreover, we fail to see how admission of evidence regarding Napuunoa's earlier

burglary prejudiced Matz as video of the incident revealed Matz did not participate in the

crime. Additionally, the remaining evidence amply proved Matz's intent to facilitate

Napuunoa's commission of the second burglary. Namely, photographs taken from the

lost surveillance video revealed, among other things, Matz getting out of the truck,

Napuunoa trying to open the storage unit and the truck's license plate. The testimony

of Matz's father established that Matz had possession of the truck used in the burglary.

Testimony of the witnesses that viewed the lost surveillance footage established that after

Napuunoa loaded the first television into the back of the truck, Matz exited the truck and

moved to the back of the truck. Although Matz could not be seen in the video, he

remained at the back of the truck while Napuunoa continued to load more televisions into

the truck. Both men then entered the truck and drove away. A reasonable inference from

this evidence is that Matz facilitated the burglary by helping Napuunoa load the stolen



                                             6
televisions into the truck. Accordingly, any error in admitting the evidence of

Napuunoa's earlier burglary was harmless.

                                 II. Probation Condition

       As part of his terms of probation, the trial court ordered Matz to have "no contact"

with Napuunoa. Matz contends this term is unconstitutionally vague and must be either

stricken or modified to include a knowledge requirement because Matz could unwittingly

violate the order. To support this argument, he cited a newspaper article where a man

subject to a restraining order preventing contact with his ex-girlfriend was arrested for

sending his ex-girlfriend an email invitation to join an electronic social network where

the invitation was automatically generated and not from the defendant. The Attorney

General argues a reasonable person would understand the condition to require an

awareness that the contact is taking place, but states if we disagree, the appropriate

remedy is to modify the condition to include an express knowledge requirement and

affirm the judgment as modified.

       "[T]he underpinning of a vagueness challenge is the due process concept of 'fair

warning.' " (In re Sheena K. (2007) 40 Cal.4th 875, 890.) Probation conditions must be

sufficiently precise for probationers to know what is required of them and for courts to

determine whether a condition has been violated. (Ibid.) Courts often order

modification of probation conditions to incorporate a scienter requirement where a

probationer could unknowingly engage in the prohibited activity. (People v. Moses

(2011) 199 Cal.App.4th 374.)



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       The issue whether no-contact probation conditions must be modified to

explicitly include a knowledge requirement is currently pending before the California

Supreme Court. (See In re A.S. (2014) 227 Cal.App.4th 400, review granted Sept. 24,

2014, S220280.) Pending resolution of this issue by our high court, the addition of an

express scienter requirement will eliminate any potential for vagueness. Accordingly,

we will order the condition modified to incorporate an express knowledge requirement.

                                     DISPOSITION

       Probation condition number 6g is modified to read: "have no knowing contact

with co-defendant(s)." As modified, the judgment (order of probation) is affirmed. The

trial court is directed to prepare an amended probation order consistent with this opinion

and to forward a copy to defendant and the probation department.



                                                                      MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.




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