Filed 1/7/14 P. v. Fonesca CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B246997
(Super. Ct. No. 2012034168)
Plaintiff and Respondent, (Ventura County)
v.
MICHAEL DAVID FONSECA,
Defendant and Appellant.
Michael David Fonseca appeals from the judgment following his
conviction by jury of first degree burglary (Pen. Code, § 459).1 The jury further found
that an individual other than appellant or an accomplice was present in the residence
during commission of the burglary (§ 667.5, subd. (c)(21)), and the trial court found
appellant committed the charged offense while on felony probation (§ 1203, subd. (k)).
The court sentenced him to state prison for four years, and ordered him to have no
contact with the victims. Appellant challenges the sufficiency of the evidence to support
his conviction, and claims that the court lacked authority to issue the no contact order.
Respondent correctly concedes the latter claim. We shall modify the judgment
accordingly. In all other respects, we affirm the judgment.
1
All statutory references are to the Penal Code.
Factual and Procedural Background
On June 5, 2012, appellant was driving his car in Thousand Oaks, with Luis
Navarette riding in the front passenger seat. Navarette noticed a skateboard in an open
garage at one residence, and asked if appellant wanted it. Appellant answered, "yeah,"
made a U-turn, and parked near the residence. Navarette entered the garage and appellant
waited in the car. David Nemiroff and his family were inside the residence. Nemiroff
stopped Naverette and patted him down. Nemiroff saw appellant and yelled at him.
Appellant stepped outside his car briefly. He drove away with Navarette.
DISCUSSION
Sufficiency of the Evidence
Appellant contends there is not sufficient evidence to support his burglary
conviction. We disagree.
In reviewing the sufficiency of evidence to support a conviction, we
examine the entire record and draw all reasonable inferences therefrom in favor of the
judgment to determine whether there is reasonable and credible evidence from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Elliott (2012) 53 Cal.4th 535, 585.) Our review is the same in prosecutions
primarily resting upon circumstantial evidence. (People v. Abilez (2007) 41 Cal.4th 472,
504.) We do not redetermine the weight of the evidence or the credibility of witnesses.
(Elliott, at p. 585.) "'Conflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends.'" (Ibid.)
Substantial evidence supports appellant's burglary conviction. 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, 561.) Appellant claims "the
record is devoid of any evidence that [he] assisted, aided, encouraged, . . . or helped
Navarette enter the garage for the purpose of theft." The record belies his claim.
2
Appellant drove Navarette to the Nemiroffs' neighborhood. Navarette saw a skateboard
in the Nemiroffs' open garage and asked appellant if he wanted it. Appellant said,
"yeah," made a U-turn, and parked near the Nemiroffs' residence. Appellant concedes he
"stopped his vehicle to allow Navarette to enter the garage." This evidence supports the
inference that appellant acted with knowledge of Navarette's purpose and with the intent
to facilitate his commission of the burglary.
No Contact Order
Upon sentencing appellant to state prison, the trial court ordered that
appellant "have no contact with . . . the Nemiroff family." Appellant claims the court
erred because it lacked authority to issue the no contact order. Respondent concedes the
error, and we agree. (People v. Ponce (2009) 173 Cal.App.4th 378, 383-385; People v.
Stone (2004) 123 Cal.App.4th 153, 159 [protective orders that are not probation
conditions cannot exceed pendency of criminal proceedings].)
DISPOSITION
We modify the judgment to strike the no contact order. As modified, the
judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
3
Patricia M. Murphy, Judge
Superior Court County of Ventura
______________________________
Bruce Zucker, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney
General, for Plaintiff and Respondent.
4