Rivera

After the court denied a motion for acquittal (Pen. Code, § 1118.1), a jury convicted Fermín Rivera of auto burglary. (§ 459.) He admitted serving a prior prison term. (§§ 667.5, subd. (b), 668.) The court sentenced him to prison for three years: the two-year middle term for burglary, enhanced one year for the prior prison term. Rivera contends the trial court erred in denying the motion for acquittal and there is insufficient evidence to support the conviction.

Facts

Between 1:00 a.m. and 2:00 a.m. on January 9, 2002, San Diego Police Officer Richard Widner responded to a reported vehicle break-in. He saw Rivera and a companion sitting in a parked Ford Escort. Rivera came out of the Ford and threw some papers and a screwdriver to the ground. The window of the car was broken out and its interior was in disarray. Rivera turned and ran. Officers apprehended him in an alley near the parked Ford.

The owner of the Ford was not available to testify. His friend testified she had been with him during the afternoon before the break-in and the car’s window was not broken.

Discussion

“In a case tried before a jury, the court on motion of the defendant or on its own motion, at…