Filed 10/22/14 P. v. Moore CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048832

         v.                                                            (Super. Ct. No. 12WF1403)

GREGORY DAVID MOORE,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, M. Marc
Kelly, Judge. Affirmed.
                   John Derrick, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry
Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
                A jury found Gregory David Moore guilty of residential burglary. The trial
court sentenced Moore to nine years in prison. On appeal, Moore challenges the denial
of his his Penal Code section 1118.1 motion made following the prosecution’s case-in-
chief.1 He contends the prosecution fell short in providing sufficient evidence to link him
to the burglary. Specifically, Moore maintains there was insufficient evidence to
reasonably infer he was inside the residence. Finding his argument lacks merit, we affirm
the judgment.
                                               I
                The scope of this appeal challenges the trial court’s denial of a section
1118.1 motion made by Moore after the prosecution’s case-in-chief. Accordingly, for
purposes of our review we focus our summary of the facts on the evidence presented in
the prosecution’s case-in-chief.
                Laura Amador, a house sitter, lived alone at a beach house in Sunset Beach.
The house is situated having its north side facing the street and its south side facing the
ocean. On the west and east sides of the house are long walkways, both of which are
gated off and not intended for public access. These walkways (also called breezeways)
are approximately 150 feet in length. Amador was the only person who had access or
permission to be within the home, other than a window cleaner.
                One night, Amador locked the three-story house before she went to bed
around 9:30 p.m. No one else was inside the house, and nobody except Amador had
permission to come into the house that night. Amador’s bedroom is in a second-floor
studio located inside the home. The studio has its own private entrance and exit. At
2:40 a.m., Amador was asleep when she heard a loud hammering noise. Amador got out
of bed and looked through a window in her room towards the street. She did not see



1
                All further statutory references are to the Penal Code.

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anything outside and went back to bed. Five minutes later, she heard another noise, like a
chair being dragged, or a drawer opening. Amador got out of bed, went to the door of her
studio, and tried to listen more closely. Amador heard a closet door open right outside
her bedroom. She also saw a light turn on and off. Amador did not hear any talking or
conversations. She also never saw any person inside the house; she just heard the noises
described above.
              Amador exited the house through a side door attached to the garage, one of
the four exits from the house. She got in her car, drove two blocks, and called the police.
The dispatcher told her to return to the house and speak with the police officers.
              Huntington Beach Police Officer Jesse Crawley responded to the scene
along with two other officers. One of the officers stationed himself on the street side of
the house, while Crawley and the third officer stood on either side of the house in the
walkways towards the beach end of the house. From his position, Crawley saw Moore
standing in the walkway. Crawley had previously walked down that same breezeway
minutes before and had not seen anybody there.
              Crawley identified himself as a police officer, told Moore to stop moving,
and asked him to put his hands up. Moore, originally walking towards Crawley, began
moving quickly in the opposite direction towards the street once he heard Crawley
yelling to stop. Crawley ran after Moore, and by the time Crawley got to the street,
another police officer had placed Moore on the ground and was handcuffing him.
              Amador spoke with the officers and explained what she heard and saw
earlier that night. The police searched the house for other intruders and did not find
anyone. Amador entered the house with the police officers, and they found many
disturbances and misplaced items: There were recent food preparations made in the
kitchen, a burnt pan along with bacon and eggs on a plate, a broken door that was ajar, a




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blanket and pillow on a third-floor couch, a lawn chair made up like a bed, and a
television that was on. Amador stated she did not go to bed with the house in this messy
condition, and the door was in good working order and locked.
              Following this evidence and testimony, Moore made a section 1118.1
motion. The trial court denied the motion stating it found inferences and circumstantial
evidence to support the fact Moore may have committed a residential burglary. The trial
court reasoned the evidence of a broken door indicated someone had forced their way
into the house and made an unauthorized entry. Further, since there were drawers opened
and objects moved around, one could reasonably infer the intruder had a felonious intent
to commit larceny. The court determined Moore’s presence next to the property a short
time after the police were called created a strong inference Moore was the individual
inside the residence. It concluded there was substantial evidence of every element
required for a residential burglary.
              Moore next presented his defense. He told an elaborate story in which he
admitted he was in the house but asserted he had permission from a new friend to enter
and to stay the night. He claimed he woke up around 3:00 a.m. and left the house to buy
coffee from a 7-Eleven store when police apprehended him.
              The prosecutor presented rebuttal evidence. One of the police officers
testified he actually witnessed Moore walking through the garage moments before he was
apprehended outside. Another police officer testified Moore kept changing his story
while being questioned.
                                            II
              The sole issue on appeal is whether there was sufficient evidence after the
prosecution’s case-in-chief to deny Moore’s section 1118.1 motion. Moore asserts there
was not enough evidence to link him to the burglary, and the trial court should have
granted his section 1118.1 motion.



                                            4
              Section 1118.1 reads in relevant part: “In a case tried before a jury, the
court on motion of the defendant . . . shall order the entry of a judgment of acquittal of
one or more of the offenses charged . . . if the evidence then before the court is
insufficient to sustain a conviction of such offense or offenses on appeal.” The purpose
of a section 1118.1 motion is to “weed out” those few instances where the prosecution
fails to even make a prima facie case. (People v. Shirley (1982) 31 Cal.3d 18, 70.)
“[T]he question under section 1118.1 is simply whether the prosecution has presented
sufficient evidence to present the matter to the jury for its determination.” (People v.
Ainsworth (1988) 45 Cal.3d 984, 1024.)
              The test to be applied by an appellate court is the same test the trial court
applies when deciding a section 1118.1 motion. The test is “whether from the evidence,
including reasonable inferences to be drawn therefrom, there is any substantial evidence
of the existence of each element of the offense charged. [Citations.]” (People v. Valerio
(1970) 13 Cal.App.3d 912, 919.)
              Burglary is defined under section 459 as being committed by any “person
who enters a house, room, apartment . . . with intent to commit grand or petit larceny or
any felony.” Here, there is no dispute somebody broke into the house and committed a
burglary. The only possible issue at the time of the section 1118.1 motion was the
identity of the person who entered the house. We find there was sufficient evidence
Moore was the culprit.
              It is reasonable to infer from the evidence that Moore entered the side
walkway from inside the home. There was undisputed evidence showing the only ways
of entering the walkway was from either end (both of which had police officers in the
vicinity) or from inside the house. The chances of Moore coming from either end of the
walkway are lessened by evidence the breezeway ends were gated. Moore would have
been required to open the gate, go through it, and then close it, all without making a



                                              5
sound and without any of the officers posted at the north and south ends of the house
seeing his movements. In addition, it was significant Moore was found in the walkway
of a house that had just been broken into and, more importantly, the very same walkway a
police officer had just traversed. Also telling is that Moore fled when Crawley spotted
him. Such conduct is often a sign of guilt. (See People v. Williams (2013) 56 Cal.4th
630, 679 [defendant’s flight after a crime was “committed supports an inference of
consciousness of guilt and constitutes an implied admission”].)
               On appeal, Moore claims he was walking on the beach and trying to cut
through to get to the street in order to get out of the neighborhood. This inference is not
supported by the evidence. Crawley, who was standing at the beach end of the walkway,
testified Moore was first spotted walking towards him. From this testimony, one could
infer Moore was either walking from the street end of the walkway towards the beach, or
he came from inside the house and was walking towards the beach. The prosecution’s
evidence only supports the second inference.
               Specifically, police cars were parked on the street side of the house, and a
reasonable person would not likely risk trespassing onto private property, particularly at
the early hour of 3:00 a.m., when it was clear police officers were in the vicinity. And if
Moore had attempted to enter the breezeway from the street, it is highly likely one of the
officers standing there would have stopped him. In short, it is not reasonable to infer
Moore entered the walkway from the street side because of the police cars and a police
officer in that location.
               In light of these facts, we find the prosecution presented sufficient evidence
to allow the case to go to the jury. The trial court reasonably inferred from the evidence
Moore was likely the person who broke into the house that night. As stated in Shirley,
supra, 31 Cal.3d at page 70, a section 1118.1 motion is made to “weed out” those few
instances where the prosecution fails to even make a prima facie case. This situation is
not one of those few instances. There is a probability, if not a high probability, that it

                                              6
was Moore inside the house that night. The prosecution established enough evidence in
its case-in-chief to deny Moore’s section 1118.1 motion.
                                           III
             The judgment is affirmed.




                                                 O’LEARY, P. J.

WE CONCUR:



RYLAARSDAM, J.



THOMPSON, J.




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