P. v. Lopez
Filed 10/17/13 P. v. Lopez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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opinion has not been certified for publication or ordered published for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,
Plaintiff and
Respondent,
v.
MIGUEL LOPEZ,
Defendant and
Appellant.
2d Crim. No.
B241615
(Super. Ct.
No. GA084426)
(Los
Angeles County)
Miguel Lopez appeals the
judgment entered after a jury convicted him of
Code,
found true allegations that appellant had suffered two prior serious or violent
felony convictions that qualified as strikes (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), and had served seven prior prison terms
(§ 667.5, subd. (b)). Appellant was
sentenced to seven years in state prison
and was awarded 284 days of presentence custody credit. He contends the evidence is insufficient to
support his conviction and that he is entitled to additional presentence
reflect an additional 100 days of presentence custody credit. Otherwise, we affirm.
STATEMENT OF FACTS
On the morning of October 2, 2011, Maria Gallardo and
Shena Villa were working at a CVS store in Glendale
when the store alarm sounded. Gallardo
and Villa looked toward the front of the store and saw a man run out the door
holding a basket filled with store merchandise.
Villa, who was working at the register closest to the exit, ran out the
door. Villa was unable to see where the
man had gone and returned to the store.
Thirty minutes later,
Villa was working at a cash register when appellant, who was wearing a green
baseball cap and a black leg brace, grabbed her arm and asked if someone had
stolen something. Villa called Gallardo
and told her what had happened. Gallardo
stepped just outside the front entrance and asked appellant if she could help
him.
basket of merchandise was standing a few feet behind appellant. Gallardo said she had no idea if anything had
been stolen and went back inside the store.
Gallardo reviewed the
store's surveillance video from earlier that morning, a recording of which was
played for the jury. The video depicts
the following: Appellant entered the
store, picked up a basket, and proceeded to walk toward aisle 5. Appellant returned to the front of the store
from aisle 1 without the basket. He
stood at the door for a couple of seconds, then reentered the store with the
man Gallardo had seen with appellant earlier that day. About 15 seconds later, appellant stood in
the path of the automated doors while the other man walked to aisle 1, returned
with a basket full of merchandise, and ran out of the store. Villa ran out the front door after the man. Villa reentered the store shortly thereafter,
and appellant followed right behind her.
Appellant stood near the second register, looked around for about 30
seconds, and left the store.
Gallardo called the
police. When the police arrived,
Gallardo showed them the video and reported her observations. She also gave a physical description of
appellant and his clothing, yet was unable to give a clear description of the
other man. Gallardo identified appellant
during an in-field showup later that day.
Gallardo and Villa also identified appellant in court as the man who had
asked them if anything had been stolen.
After he was arrested,
appellant acknowledged that he had gone to the CVS store that day and had
placed merchandise in his basket. He
claimed, however, that he had simply put the basket down near one of the aisles
and left after noticing that the cashier lines were too long.
DISCUSSION
Sufficiency
of the Evidence
Appellant contends the
evidence is insufficient to support his burglary conviction. He claims there is no evidence from which the
jury could have inferred he intended to aid and abet the theft that served as
the predicate offense for his conviction.
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. Streeter (2012) 54 Cal.4th 205, 241.) Our review is the same in prosecutions
primarily resting upon circumstantial
evidence. (Ibid.) "'An appellate
court must accept logical inferences that the jury might have drawn from the
evidence even if the court would have concluded otherwise.'" (Ibid.) Our review does not redetermine the weight of
the evidence or the credibility of witnesses.
(People v. Albillar (2010) 51
Cal.4th 47, 60.)
As relevant here, the
crime of burglary is committed when someone unlawfully enters a store with the
intent to commit a theft or any other felony.
(§ 459.) A defendant can
also commit burglary as an aider and abettor, which requires proof that entry
was made with the intent to encourage, facilitate, or assist someone else to
carry out the crime. (§ 31;
1038–1040.) To be found guilty on this
theory, the defendant must commit an act that "in fact assists the
achievement of the crime." (
1225.) Inferences based on factors such
as "'. . . presence at the scene of the crime, companionship, and conduct
before and after the offense'" may be reasonable if they support that the
accused in fact "'". . . aided the perpetrator by acts
gestures."'" (
402, 409, 411.)
Sufficient evidence
supports the finding that appellant entered the CVS store with the intent to
aid and abet the commission of a theft.
Appellant's arguments to the contrary essentially ignore the applicable
standard of review. Although the video
recording is of poor quality, it depicts appellant entering the store, picking
up a basket, and later exiting the store from aisle 1 without a basket. By appellant's own admission, he left a
basket full of items on the floor.
Shortly after appellant left, he is seen reentering the store with
another man. Moments after the two men
walked toward aisle 5, appellant returned to the entrance and held the
automatic door open while the other man walked over to aisle 1, returned with a
basket full of items, and ran out of the store.
Shortly thereafter, appellant reentered the store directly behind Villa,
to make it appear as if he had already been there when the incident took
place. In a further attempt to appear
uninvolved in the crime, appellant later returned to the store and asked if a
burglary had occurred. When Gallardo
spoke to appellant about this, the other man involved in the burglary was
standing nearby. Moreover, Gallardo
recognized appellant from a prior incident in which he attempted to steal items
from the store.
Although appellant notes
the evidence does not definitively establish that appellant's basket was the
one taken during the burglary, no such showing is necessary to sustain his
conviction. Appellant's interpretation
of the evidence as supporting a conclusion that the other man picked up his own
basket and filled it with items is similarly unavailing. The issue is whether the evidence, viewed in
the light most favorable to the judgment, supports a finding that appellant
aided and abetted the burglary that undeniably took place. It plainly does, and appellant's claim of
insufficient evidence accordingly fails.
Presentence
Custody Credits
Appellant asserts that
he is entitled to an additional 100 days of presentence custody credit. The People correctly concede the point.
The October 1, 2011,
amendment to section 4019 provides that prisoners who are confined to a county
jail for a crime committed on or after that date are entitled to
"one-for-one" credit, i.e., one day of work/conduct credit for every
day spent in actual custody. (
2011, so he is entitled to one-for-one credits.
(People v. Lara (2012) 54
Cal.4th 896, 906, fn. 9.) Appellant was
arrested on the date of his crime and was in continuous custody until he was
sentenced 192 days later on April 10, 2012.
He is thus entitled to 192 days of actual custody credit and 192 days
work/conduct credit. Because appellant
was only awarded 190 days actual custody credit and 94 days work/conduct
credit, we shall order the judgment modified to correct this error.
DISPOSITION
The judgment is modified
to reflect an award of 384 days of presentence custody credit, consisting of
192 days actual custody credit and 192 days good conduct credit. The superior court clerk shall prepare an
amended abstract of judgment and forward a copy to the
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Michael
D. Carter, Judge
Superior
Court County of Los Angeles
______________________________
Carey D. Gorden, 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, Scott A. Taryle, Supervising Deputy
Attorney General, Tannaz Kouhpainezhad, Deputy Attorney General, for Plaintiff
and Respondent.
name="_ftn1" title="">[1] All further undesignated statutory references
are to the Penal Code.
incident. About two months earlier,
appellant entered the store and filled a basket with deodorants. Gallardo subsequently approached appellant
and told him she would hold the basket at the front register for him. Appellant followed Gallardo as she carried
the basket and asked if she would give him a discount. Gallardo said she knew what appellant was
doing and asked him to leave the store.
Appellant mumbled something and left without purchasing anything.
