Filed 3/16/15 P. v. Gerardo CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B252957

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA129242)
         v.

JERAMY GERARDO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, John T.
Doyle, Judge. Reversed in part and remanded.
         Davina T. Chen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer and
Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.


                                      ____________________________
       Jeramy Gerardo was convicted of first degree burglary with a person present
(Pen. Code,1 §§ 459, 667.5, subd. (c)(21)); misdemeanor assault (§ 240); misdemeanor
false imprisonment (§ 236); and vandalism in an amount under $400 (§ 594, subd. (a)).
He challenges the burglary conviction on several grounds and also argues that there was
insufficient evidence to support the false imprisonment conviction. We reverse the
finding that a person other than an accomplice was present during the burglary, strike the
finding that the burglary constituted a violent felony, and remand the matter to the trial
court for the recalculation of Gerardo’s presentence custody credits.


                 FACTUAL AND PROCEDURAL BACKGROUND

       On April 1, 2013, Gerardo was seen in a car that had been reported stolen.
Gerardo fled on foot when he saw the police and entered a nearby mobile home that was
occupied by Richele Nichols. Nichols was in the bathroom when she heard a very loud,
booming noise. She left the bathroom to investigate. As she walked toward the living
room, she felt Gerardo “grab right here,” indicating the top portion of her shoulder.
Nichols described his arm reaching around her body, crossing her neck, then touching the
opposite shoulder.
       Nichols ran from the mobile home to the police who had gathered outside in
pursuit of Gerardo. Gerardo remained inside for at least 45 minutes. During that time,
banging sounds emanated from within the mobile home. Gerardo was apprehended after
officers saw him emerge from beneath the mobile home and run away.
       Gerardo was charged with first degree residential burglary with a person present;
assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)); false
imprisonment by violence (§ 236); vandalism causing damage less than $400; and
unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)).
       At trial, there was conflicting testimony about how Gerardo touched Nichols.
Nichols testified that his grasp “wasn’t real strong.” “He wasn’t holding super tight or


1      Unless otherwise indicated, all further statutory references are to the Penal Code.

                                              2
anything like that. He didn’t have me in, like, a super grip or anything hurtful.” Nichols
“froze for a moment,” frightened. “I didn’t know what to do. And then I ended up just
going running down the hall exiting the front slider.” Nichols did not have to push to
break free; she was not restrained. Gerardo’s touch left no marks.
       Deputy Sheriff David Berry, who had spoken with Nichols on the day of
the incident, testified that Nichols told him that when she exited the bathroom, “she felt
a—an arm grab her from behind. I believe he had—said right arm grab her from behind.
She was held there I believe she said for a few minutes. I think she said it felt like longer.
And as soon as she felt the grip loosen, she bolted for the door, frantically ran towards the
door, ran outside, looked for the nearest deputy.” After reviewing his report, Berry
testified that Nichols had not in fact stated how long the interaction took, only that she
said it felt like hours. When questioned about Berry’s account of her statements, Nichols
testified that she did not recall telling Berry that Gerardo was holding her, that she felt a
grip, or that she had to break free in order to leave; but it was possible she had said those
things. She confirmed that Gerardo had not removed his hand before she left but that he
had not held her in a grip, nor was there any resistance when she walked forward.
       The owner of the mobile home, Carrie Johnson, described the scene after the
incident as being “like a tornado had ripped through my house.” There was a hole
through her bathroom floor where the linoleum and wood subflooring had been ripped
up. Berry testified that the hole in the bathroom floor was big enough that he could
probably fit through it. The closet doors in the spare bedroom were ripped off and things
were on the floor. The door where Gerardo entered the mobile home was damaged. A
kitchen pipe had been broken. Johnson estimated that it would cost $500 to $600 to
replace the carpet in the house, and that repairing the hole in the bathroom would
“probably cost around a couple hundred dollars.” She did not know how much it would
cost to repair or replace the closet doors but estimated that repairing the paneling in the
bedroom would cost $80 to $90.
       Gerardo testified at trial. He testified that he had not stolen the car, but that he had
only removed a cellular phone from it. He ran when he saw the police. He claimed that

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he knocked on the door of the mobile home with the plan to ask to use the telephone.
Gerardo claimed that Nichols answered the door and let him in when he said, “Look,
ma’am. Can I please come in [and] make a phone call or can I please use your phone to
make a phone call? I don’t have intentions to hurt you, touch you, take anything. I’m
just scared for my life. The police are chasing after me.[] They have their weapons out.”
Gerardo said that Nichols directed him to the back room. He did not see her again.
       Gerardo testified that he had waited for Nichols in the back room for ten minutes
or so, and then looked for her in the mobile home. He saw that there were police outside.
He sat on the floor assessing the situation and heard a helicopter and police
announcements telling him to come out with his hands up. Then the police announced
that a dog would be deployed, which alarmed Gerardo. Gerardo continued, “So that’s
when I seen—I seen some tools on the floor, and the plywood is real cheap right there. I
actually used to live in a mobile home in Rancho Dominguez for a few years with my
grandmother. And mobile homes are pretty cheap under the bottom held by support
beams. And I decided I want to get out of here and I don’t want to take a chance getting
bit by the dog. I’m scared once they introduced the dog to the whole situation. I got
scared. [¶] And that’s when I basically—I’ve actually done construction work before; so
I know exactly how to do it. There was like a tool box right there. I actually cut a small
hole in the bathroom floor and I escaped underneath. And I just went underneath the
house.”
       Gerardo was convicted of first degree burglary with a person present;
misdemeanor assault; misdemeanor false imprisonment; and vandalism in an amount
under $400. He admitted that he had suffered a prior felony conviction falling within the
“Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and requested that the
court exercise its discretion pursuant to section 1385 to dismiss this prior strike. The
court declined to exercise its discretion to strike the prior strike conviction. The court
sentenced Gerardo to eight years in state prison for the first degree burglary, representing
the middle term of four years doubled under the “Three Strikes” law. Gerardo received a
consecutive five-year sentence enhancement pursuant to section 667, subdivision (a)(1)

                                              4
due to his prior conviction for first degree burglary, for a total prison term of 13 years.
For the three misdemeanor counts, the court sentenced Gerardo to concurrent sentences
of 235 days with credit for time already served. Based on the jury’s finding that a person
other than an accomplice was present at the time of the first degree burglary, the trial
court designated the offense a violent felony pursuant to section 667.5, subdivision
(c)(21) and limited Gerardo’s presentence custody credits to 15 percent under section
2933.1, subdivision (a). Gerardo appeals.


                                       DISCUSSION

       I.       Alleged Variance in Theory of Burglary Between Preliminary Hearing
                and Trial

       Gerardo argues that his burglary conviction was a conviction for “a different
burglary” than was charged in the information and proven at the preliminary hearing. 2
His claim that he was convicted of a different burglary is premised on his assertion that
the information “charged the burglary that was proved at the preliminary hearing: entry
into the mobile home with intent to commit felony assault or felony false imprisonment.”
Ultimately, the prosecutor argued at trial that the burglary consisted of the entry into the
bathroom of the mobile home with the intent to commit felony vandalism. Gerardo
argues that these were different crimes and that therefore his conviction for burglary
cannot stand.
       It is well-established that “a defendant may not be prosecuted for an offense
not shown by the evidence at a preliminary hearing or arising out of the transaction
upon which the commitment was based.” (People v. Burnett (1999) 71 Cal.App.4th 151,
165-166.) For instance, after possession of a .38 caliber revolver had been established by
the evidence at a preliminary hearing, at trial the prosecutor could not prove the charge of
possession of a firearm by a felon by means of evidence of a separate incident of

2    The preliminary hearing was held with respect to these charges in Case No.
TA127639. Subsequently, that case was dismissed and refiled with the present case
number. The parties waived a new preliminary hearing.

                                              5
possession of a .357 magnum revolver. (Id. at pp. 164-171.) Similarly, when one
unauthorized use of a motor vehicle was proven at the preliminary hearing, at trial the
prosecution could not properly offer evidence of a separate unauthorized use of the
vehicle as an alternative basis for conviction. (People v. Dominguez (2008) 166
Cal.App.4th 858, 866.)
       Here, however, Gerardo was not punished for a separate incident from that proven
at the preliminary hearing because all the facts concerning what Gerardo was alleged to
have done in the incident were presented at the preliminary hearing. At that hearing,
evidence was offered that Nichols was in the mobile home when she heard a loud bang.
When she left the bathroom to see what had happened, Gerardo briefly grabbed her
before she escaped. Gerardo was in the home after Nichols ran away. Gerardo admitted
to the police that “he ended up tunneling his way underneath the mobile home.”
Evidence was presented of damage to the mobile home, and specifically in the bathroom:
furniture had been upended, carpet torn up in the living room, the kitchen flooded by a
broken water pipe, a “large hole [made] in the bathroom” floor, closet doors pulled off
bedroom closets, and damage done to the paneling in one bedroom. Nichols told the
police that the damage had not been there before the man entered the mobile home and
that she had not given him permission to enter.
       When combined with the information charging Gerardo with burglary, the
transcript of the preliminary hearing “‘afford[ed] defendant practical notice of the
criminal acts against which he must defend.’” (People v. Jones (1990) 51 Cal.3d 294,
317.) Those acts included, inter alia, entering the bathroom and damaging the floor.
Accordingly, Gerardo was “advised of the charges against him so that he ha[d] a
reasonable opportunity to prepare and present his defense and not be taken by surprise by
evidence offered at his trial,” as due process requires. (Ibid.) Gerardo was prosecuted
only for offenses “shown by the evidence at the preliminary hearing or transactionally
related to the offense that formed the basis for the commitment order.” (Burnett, supra,
71 Cal.App.4th at p. 171, fn. 9.) Due process was not violated here.



                                             6
       Gerardo asserts that the theory of burglary presented at trial was advanced but
rejected at the preliminary hearing. He claims that “[a]lthough the People attempted at
the preliminary examination to prove entry into the mobile home with the intent to
commit felony vandalism, that charge was unproved.” This assertion is not supported by
the record. The court ruled that the evidence did not support a charge of felony
vandalism under section 594(a) because there was insufficient evidence of the dollar
amount of damage done inside the mobile home. It made no statements and no rulings
concerning entry into the mobile home with the intent to commit felony vandalism.
       Gerardo’s assertion that the preliminary hearing gave him notice only that “the
criminal act against which he must defend was the entry into the mobile home
accompanied by the intent to commit felony assault or false imprisonment” is similarly
unsupported by the record of the preliminary hearing. At no time was the burglary
limited to that theory by any participant. The prosecutor did not articulate any specific
theory of burglary at the preliminary hearing and there was no argument by any counsel
as to the burglary count. The court ruled after the presentation of evidence that there was
sufficient cause to believe that Gerardo had committed burglary, but it did not specify
any particular theory of the crime. Gerardo has not established any error here.


       II.    Sufficiency of the Evidence of Burglary

       To be guilty of burglary, a person must enter a dwelling, or a room within the
dwelling, with the intent to commit a theft or any felony. (§ 459.) Gerardo argues that
his conviction for burglary cannot stand because there was insufficient evidence that he
entered the mobile home, or a room within the mobile home, with the intent to commit
theft or any felony. “In reviewing a claim for sufficiency of the evidence, we must
determine whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
or special circumstance beyond a reasonable doubt. We review the entire record in the
light most favorable to the judgment below to determine whether it discloses sufficient
evidence—that is, evidence that is reasonable, credible, and of solid value—supporting

                                             7
the decision, and not whether the evidence proves guilt beyond a reasonable doubt.
[Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses.
[Citation.] We presume in support of the judgment the existence of every fact the jury
reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably
justify the findings made by the trier of fact, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding.” (People v. Jennings (2010) 50 Cal.4th 616, 638-639 (Jennings).)
       The evidence here was sufficient for the jury to conclude that Gerardo entered the
mobile home bathroom with the intent to commit felony vandalism. Gerardo testified
that after Nichols left the mobile home he sat inside for a period of time trying to “assess
the situation.” Law enforcement announcements concerning a police dog and the sound
of a police dog pawing at the door frightened Gerardo, and that was when he saw tools
and decided to escape by tunneling through the bathroom floor. Gerardo then ripped a
hole in both the linoleum and the underlying wood subflooring that was large enough for
an adult male to fit through. The jury was shown a photograph of the damage to the
bathroom. The owner of the mobile home estimated that to repair the bathroom floor
would “probably cost around a couple hundred dollars,” but she had not obtained any
formal estimates for repair work.
       The jury was not bound by Johnson’s opinion of what repair costs might be for the
damage to the bathroom floor. (See People v. Pena (1977) 68 Cal.App.3d 100, 103.)
CALCRIM No. 1860, as given here, provides, “A witness gave her opinion of the value
of the property she owned. In considering the opinion, you may but are not required to
accept it as true or correct. Consider the reasons the witness gave for any opinion, the
facts or information on which she relied in forming that opinion, and whether the
information on which the witness relied was true and accurate. You may disregard all or
part of any opinion that you find unbelievable or unreasonable. You may give the
opinion whatever weight, if any, you believe it deserves.” The jury could reasonably
have concluded despite Johnson’s estimate that a hole of that size and magnitude would
have cost more than $400 to repair and that Gerardo intended to do damage of that extent

                                             8
when he entered the bathroom. The evidence was sufficient to support Gerardo’s
conviction.

       III.   Sufficiency of the Evidence that a Person Was Present During the
              Burglary

       First degree burglary is a serious felony (§ 1192.7, subd. (c)(18)) and a strike
under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). A first
degree burglary is defined as a violent felony only when “it is charged and proved that
another person, other than an accomplice, was present in the residence during the
commission of the burglary.” (§ 667.5, subd. (c)(21).) The jury convicted Gerardo of
first degree burglary with a person present,3 and based upon this finding, the court
designated the burglary a violent felony and limited Gerardo’s presentence custody
credits to 15 percent pursuant to section 2933.1, subdivision (a).
       Gerardo argues that the evidence was insufficient that any person was present in
the residence during the commission of the burglary. We review the record in the light
most favorable to the judgment to determine whether the jury could have found beyond a
reasonable doubt that a person was present at the time of the burglary. (Jennings, supra,
50 Cal.4th at pp. 638-639.)
       We find no evidence in the record from which the jury could have concluded that
there was a person present in the mobile home when Gerardo committed burglary—that
is, at the time he entered the bathroom with the intent to commit felony vandalism by
ripping a hole in the floor. All the evidence at trial was that Nichols fled the house
almost immediately upon Gerardo’s entry, and that it was not until some time later that
Gerardo tunneled through the bathroom floor to escape. It is undisputed that Gerardo
was alone in the mobile home by the time the burglary occurred.


3      Gerardo was convicted of first degree burglary because the jury concluded that the
mobile home was inhabited and that it was a trailer coach as defined by the Vehicle
Code. (§ 460.) A trailer coach is inhabited if someone uses it as a dwelling, whether or
not someone is inside at the time of entry. (CALCRIM No. 1701.) Gerardo does not
challenge the jury’s verdict that the burglary was of the first degree.

                                              9
       The Attorney General argues that it is sufficient that Nichols was in the mobile
home when Gerardo entered it, relying on People v. Garcia (2004) 121 Cal.App.4th 271
(Garcia), in which two defendants broke into a house late at night and stole items from
within. The occupants within the house fled after hearing the sounds of the defendants
prying open the back door. (Id. at p. 275.) This court concluded that because the
insertion of a prying tool into the door jamb constituted the entry into the home, and
because the occupants were inside the house at the time of that entry, the evidence was
sufficient to establish that a person other than an accomplice was present during the
burglary. (Id. at p. 281.)
       In Garcia, supra, 121 Cal.App.4th 271, the entry into the home itself constituted
the burglary because it was made with the intent to commit theft. But here, in contrast to
Garcia, the burglary was not committed when Gerardo initially entered the home. As the
prosecutor admitted, there was no evidence that Gerardo’s initial entry into the mobile
home was committed with the intent to commit theft or any felony. The prosecutor
argued instead that after he had entered the mobile home, Gerardo entered the bathroom
with the intent to commit felony vandalism. The record is unequivocal that at that point
in time Gerardo was alone in the mobile home.
       As there was no evidence in the record that any other person was present in the
mobile home at the time Gerardo entered the mobile home bathroom with the intent to
commit felony vandalism, the evidence is insufficient to support the finding that a person
other than an accomplice was present in the residence during the burglary. Accordingly,
we reverse the jury’s finding under section 667.5, subdivision (c)(21). On remand, the
trial court is directed to recalculate Gerardo’s custody credits.


       IV.    Sufficiency of the Evidence of False Imprisonment

       Gerardo was acquitted of felony false imprisonment but convicted of misdemeanor
false imprisonment. He argues that the evidence was insufficient to support this
conviction because there was insufficient evidence that he restrained Nichols or forced
her to stay or go anywhere against her will.

                                               10
       “As defined in section 236, ‘False imprisonment is the unlawful violation of the
personal liberty of another.’ Without more, the conduct described in section 236 is a
misdemeanor offense. (§ 237.) If effectuated by ‘violence, menace, fraud or deceit,’
false imprisonment is elevated to a felony. (§ 237.)” (People v. Henderson (1977) 19
Cal.3d 86, 93, overruled on another ground in People v. Flood (1998) 18 Cal.4th 470,
484-490.) “The misdemeanor offense requires no force beyond that necessary to restrain
the victim. All that is necessary is that ‘the individual be restrained of his liberty without
any sufficient complaint or authority therefor, and it may be accomplished by words or
acts . . . which such individual fears to disregard.’ [Citation.] ‘“Any exercise of force, or
express or implied threat of force, by which in fact the other person is deprived of his
liberty or is compelled to remain where he does not wish to remain, or to go where he
does not wish to go, is false imprisonment.”’ [Citation.]” (People v. Babich (1993) 14
Cal.App.4th 801, 806.)
       Sufficient evidence supports the conviction for misdemeanor false imprisonment.
Nichols testified that Gerardo came up behind her and put his arm around her, crossing
her neck and grabbing her opposite shoulder. He had not removed his hand when she ran
away. Berry testified that on the day of the incident, Nichols said that Gerardo grabbed
her from behind and held her for what seemed like a long time. He also testified that as
soon as she felt Gerardo’s grip loosen, she bolted for the door and ran out to the police.
This evidence was sufficient to permit the jury to convict Gerardo of misdemeanor false
imprisonment.
       Gerardo argues that the evidence was insufficient to permit a false imprisonment
conviction because Nichols denied at trial that he had restrained her or compelled her to
stay or go anywhere. In the next sentence, however, he acknowledges that Berry
“testified that she had told him otherwise.” He argues that no rational juror could have
believed Berry over Nichols and that the evidence was insufficient to support the
conviction because Nichols never testified that she was restrained.
       It is the jury’s role, not ours, to resolve conflicts in the evidence and to assess
witnesses’ credibility. “To warrant the rejection of the statements[] given by a witness

                                              11
who has been believed by a trial court, there must exist either a physical impossibility
that they are true, or their falsity must be apparent without resorting to inferences or
deductions. (Citing cases.) 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.” (People v. Lyons (1956) 47 Cal.2d 311,
319-320.) As long as “the circumstances reasonably justify the findings made by the trier
of fact, reversal of the judgment is not warranted simply because the circumstances might
also reasonably be reconciled with a contrary finding.” (Jennings, supra, 50 Cal.4th at
pp. 638-639.)

                                       DISPOSITION

       With respect to count 1, the finding that a person other than an accomplice was
present at the time of the burglary is reversed and the judgment is modified to strike the
finding that the burglary was a violent felony under section 667.5, subdivision (c)(21). In
all other respects, the judgment is affirmed. The matter is remanded and the trial court is
directed to recalculate Gerardo’s custody credits to reflect the modification of the
judgment, to prepare a corrected abstract of judgment, and to forward a certified copy of
the abstract of judgment to the Department of Corrections and Rehabilitation.




                                                   ZELON, J.
We concur:




       PERLUSS, P. J.                              FEUER, J.*



*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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