P. v. Gaines
Filed 11/7/13 P. v. Gaines CA2/8
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opinion has not been certified for publication or ordered published for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
EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
RODNEY LOUIS GAINES,
Defendant
and Appellant.
B245974
(Los Angeles
County
Super. Ct.
No. MA056644)
APPEAL
from the judgment of the Superior Court
of
County. Richard E.
Naranjo, Judge. Affirmed.
Marilee
Marshall, 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, Assistant Attorney General, Scott A. Taryle and
Pamela C. Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.
* *
* * * * * * * *
A
jury found defendant and appellant Rodney Louis Gaines guilty of
evidence supporting his conviction for burglary, specifically no evidence
showing an intent to commit a felony upon entering the business establishment
where the incident occurred. We conclude
there is substantial evidence in the record supporting the judgment of
conviction and therefore affirm.
At
around 11:00 p.m. on June 24, 2012, Luis Gomez-Alcala
(Alcala) was working as a cashier at a gas station on West Avenue K in Lancaster. The gas station included a small convenience store
selling drinks, cigarettes, snacks and similar items. Mr. Alcala was inside the store assisting a
customer when the customer told him there was a man outside near the gas pumps
asking for money and bothering the customers.
Part of Mr. Alcala’s assigned job duties was to tell panhandlers at
the station to leave the premises.
After
the customer finished paying, Mr. Alcala went outside and saw defendant near
the gas pumps. Defendant had a black
backpack, as well as a bicycle with several bags on it. Mr. Alcala told defendant to stop
“molest[ing] my customer[s];†that if he did not stop he would have to call the
police or he would get in trouble with his manager. Defendant responded calmly, said “okay†and
left the premises.
After
some time had passed, two more customers complained there was a man bothering
them outside and asking for money. Mr.
Alcala looked out the window and saw that defendant had returned and was again
by the gas pumps. He again went outside
and told defendant to leave. Defendant
was angry, spoke in a loud voice and mocked Mr. Alcala. Mr. Alcala raised his voice as well and reiterated
that he had to leave. Mr. Alcala
then went back inside the store, but saw that defendant still had not
left. He went back outside and told
defendant he had to go. Defendant “was
more aggressive. . . . He [got]
madder.†Defendant told Mr. Alcala he
was only trying to get money to eat and Mr. Alcala had no right to tell him to
leave or call the police. Defendant
eventually left the gas station. On
cross-examination, Mr. Alcala conceded he may have testified at the
preliminary hearing that he only dealt with defendant twice, and not three
times.
Around
1:00 a.m., Mr. Alcala was inside the
store, waiting for a couple of customers to decide what they were going to
purchase. While behind the register, Mr. Alcala
was not protected by any bullet-proof glass, nor did he have access to any
weapon to use in self-defense. Defendant
entered the store, wearing the same black backpack Mr. Alcala had seen him with
earlier. Defendant immediately began
yelling at Mr. Alcala, as well as pointing and gesturing in his direction. The couple that was in the store appeared to
Mr. Alcala to be scared by defendant’s conduct and left.
Mr.
Alcala felt nervous because of defendant’s aggressive behavior, and he did not
know if defendant had some sort of weapon.
Mr. Alcala started to back away and grabbed his cell phone so he could
call 911. Mr. Alcala was afraid and
thought defendant was going to hurt him.
Mr. Alcala became more scared because defendant kept yelling louder and
coming closer to him. Defendant yelled
obscenities at Mr. Alcala, such as “Don’t you ever f----n talk to me like you
did before you bitch . . . if you, f--- you and the cops mother f----n
bitch. If you ever talk to me like that
again I’m gonna go over this counter and beat the f--- out of you, punk. Think I’m lying, you think I’m lying? I’m gonna beat your mother f----n ass, you
bitch. F--- you.†“I’m a soldier, mother f----r. Call the cops you bitch. You don’t know who you’re f----g with,
dude.†Mr. Alcala felt defendant had threatened
to hit him and “beat†him. Portions of
the video surveillance tapes from inside the store showing the incident,
including the words defendant yelled at Mr. Alcala, were played for the
jury.
Defendant
then picked up one of the empty cash register trays and threw it at Mr. Alcala. Mr. Alcala moved quickly to one side and
avoided being hit in the face. Mr. Alcala
told defendant he needed to control himself or he would call the police. Defendant was only about four feet away and
did not stop yelling at Mr. Alcala, so he called 911. Defendant then abruptly left the store and Mr.
Alcala saw him riding his bike down West Avenue K. The deputy sheriffs arrived in a few minutes. Defendant was detained about a mile from the
gas station, no weapons were found on him, and the arresting deputy did not
believe he appeared to be under the influence.
Defendant
was charged by amended information with one count of making criminal threats
(Pen. Code, § 422, subd. (a)
name="_ftnref1" title="">[1];
count 1), one count of assault with a deadly weapon (§ 245, subd. (a)(1); count
2), and one count of second degree burglary (§ 459; count 3). It was also specially alleged defendant had
suffered four previous convictions that qualified as serious felonies pursuant
to section 667, subdivision (a)(1), and as strike priors pursuant to sections
667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through
(d). Nine prior convictions were alleged
to qualify as prior prison term convictions pursuant to section 667.5,
subdivision (b). Defendant pled not
guilty and moved to represent himself.
The court made the requisite admonitions and determined defendant
voluntarily and intelligently waived his right to appointed counsel.
The
case proceeded to trial by jury in November 2012. The jury returned a verdict acquitting
defendant on counts 1 and 2, but convicting defendant on the lesser included
charge of misdemeanor assault (§ 240) as to count 2. The jury also convicted defendant of second
degree burglary in count 3.
Defendant
waived his right to a jury trial on
the bifurcated prior conviction allegations.
In a separate proceeding, the trial court struck the prison priors based
on evidence the most recent prior from 2006 had been overturned on appeal. As for the prior strikes, the court determined
that, pursuant to the Three Strikes Reform Act of 2012, the case qualified only
as a second strike case for sentencing purposes.
The
court sentenced defendant to state prison for four years, consisting of the midterm
of two years, doubled because of a prior strike. The court imposed and stayed a concurrent
six-month jail term for the simple assault.
Defendant was awarded total presentence custody credits of 381 days, and
ordered to pay various fines and fees.
This
appeal followed.
title="">[2]
Defendant’s
sole contention on appeal is that there is insufficient evidence supporting his
conviction for burglary. Specifically,
defendant argues his conviction for burglary is not supported by substantial
evidence of the requisite specific intent.
We are not persuaded.
“In assessing a
claim of insufficiency of evidence, the reviewing court’s task is to review the
whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence--that is, evidence that is reasonable,
credible, and of solid value--such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.†(People
v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“ ‘Although we must ensure the evidence is reasonable, credible, and of
solid value, nonetheless 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 on which that determination depends. [Citation.]
Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of
a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]â€
(People v. Ochoa (1993) 6
Cal.4th 1199, 1206.)
The
jury found defendant guilty of second degree burglary. “The crime of burglary consists of an
act--unlawful entry--accompanied by the ‘intent to commit grand or petit
larceny or any felony.’ (§ 459.)â€
(People v. Montoya (1994) 7
Cal.4th 1027, 1041, italics added.) As
defendant concedes, “[o]ne may [be] liable for burglary upon entry with the
requisite intent to commit a felony or a theft . . . whether any felony or
theft actually is committed.†(
No. 1700.)
At
trial, defendant did not contest he entered the store where Mr. Alcala was
working behind the register. Plainly,
the video surveillance tape shown to the jury established he did so. Defendant contended he did not enter the
store with the specific intent to commit either a criminal threat or assault
with a deadly weapon.
“Because
intent is rarely susceptible of direct proof, it may be inferred from all the
facts and circumstances disclosed by the evidence.†(People
v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)
The jury was presented with the testimony of Mr. Alcala, supported by
the surveillance video, that after encounters between defendant and Mr. Alcala
escalated in hostility over more than an hour, defendant returned to the
store. Defendant entered and immediately
pointed and yelled at Mr. Alcala, frightening the two customers into leaving
the store. Defendant acted increasingly
aggressively, moving toward Mr. Alcala, and eventually throwing a cash register
tray in the direction of Mr. Alcala’s head. The record and reasonable inferences
therefrom solidly support a determination that defendant entered the store with
the specific intent to criminally threaten Mr. Alcala and put him in fear of
defendant. Defendant has not persuaded
us there is any basis for disturbing the jury’s verdict. “ ‘Before a judgment of conviction can be set
aside for insufficiency of the evidence to support the trier of fact’s verdict,
it must clearly appear that upon no hypothesis whatever is there sufficient
evidence to support it.’ [Citation.]†(Ibid.)
The
judgment of conviction is affirmed.
GRIMES,
J.
We
concur:
BIGELOW,
P. J.
FLIER,
J.
name="_ftn1" title="">[1] All
further undesignated section references are to the Penal Code.
name="_ftn2" title="">[2] On
February 13, 2013, defendant filed, in pro. per., a petition for writ of
habeas corpus (case No. B246805). We
dispose of the petition by separate order.
