Filed 7/22/14 P. v. Baldwin CA2/7
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                       DIVISION SEVEN


THE PEOPLE,                                                                   B249277

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. Nos. BA384561 and
          v.                                                                  BA405837)

LLOYD BALDWIN,

          Defendant and Appellant.




          APPEAL from a judgment of the Superior Court of Los Angeles County, Carol H.
Rehm, Jr., Judge. Affirmed as modified.
          Daniel R. McCarthy, 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, Paul M. Roadarmel, Jr.
and Connie H. Kan, Deputy Attorneys General, for Plaintiff and Respondent.


                                                 ______________________
                                    INTRODUCTION


       Defendant Lloyd Baldwin appeals from the judgment of conviction entered after a
jury found him guilty of second degree commercial burglary (Pen. Code, § 4591). The
trial court in a bifurcated trial found true the allegations that Baldwin had suffered eight
prior prison terms pursuant to section 667.5, subdivision (b). The trial court also found
that Baldwin violated probation on a prior conviction.
       On May 22, 2013 the trial court sentenced Baldwin to state prison for a term of
five years, consisting of the middle term of two years plus three one-year prior prison
term enhancements (§ 667.5, subd. (b)). The trial court awarded him a total of 317 days
of custody credit. The trial court imposed a restitution fine of $200 pursuant to
section 1202.4, a criminal conviction assessment fee of $30 pursuant to Government
Code section 70373, subdivision (a), a court security fee of $40 pursuant to
section 1465.8, subdivision (a)(1), a crime prevention fine of $10 plus penalty
assessments pursuant to section 1202.5, subdivision (a), and a DNA assessment of $20
pursuant to Government Code section 76104.7. The court also imposed and suspended a
parole revocation restitution fine of $200 pursuant to section 1202.45.
       For the probation violation the court imposed the five-year state prison sentence
that had been suspended pursuant to Baldwin’s plea agreement in connection with the
prior conviction. The court ordered that Baldwin serve the sentences concurrently. The
court also imposed a probation revocation restitution fine of $200 for Baldwin’s violation
of his probation, pursuant to section 1202.44.
       Baldwin argues that there is no substantial evidence to support his conviction for
burglary because he lacked the specific intent to commit theft when he entered the
building. We conclude that there was substantial evidence from which a jury could find
beyond a reasonable doubt that Baldwin had the requisite intent to commit burglary.



1      Undesignated statutory references are to the Penal Code.


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       The People argue that the clerk’s minute order and the abstract of judgment should
be amended to include $31 in mandatory penalties and surcharges associated with the $10
crime prevention fine the trial court imposed pursuant to section 1202.5, subdivision (a).
We do not reach this issue because the trial court erred in imposing the $10 fine without
determining Baldwin’s ability to pay, as required by section 1202.5, subdivision (a).
Given the disparity between the amount of the fine including penalty assessments and the
cost of a remand to determine Baldwin’s ability to pay, we strike the fine imposed
pursuant to section 1202.5, subdivision (a).


                  FACTUAL AND PROCEDURAL BACKGROUND


       A.     The Prior Incidents
       The Standard Hotel has a policy against allowing transients to collect trash and
recyclables on its property. Despite this policy, transients are able to gain access to the
hotel’s garbage and recycling containers where hotel employees bring empty bottles from
the bar. Baldwin lives off of money he collects from recycling, panhandling, and Social
Security Insurance. He regularly asks for money outside the Standard Hotel, which he
referred to as a “watering hole.”
       Standard Hotel employees caught Baldwin taking bottles of alcohol from the
lobby bar on at least two occasions prior to December 15, 2012. The first incident
occurred on May, 16, 2011. A security guard discovered Baldwin crouched behind the
closed-off lobby bar placing a wine bottle into a plastic bag. Baldwin did not have
permission to take the bottle, and the lobby bar was closed, “locked down” with a metal
chain. As a result of this incident, Baldwin pleaded guilty to petty theft with prior
convictions for theft pursuant to sections 666 and 667.5, subdivision (b). The trial court
in that case sentenced Baldwin to five years in state prison, suspended execution of the
sentence, and placed him on probation for a period of three years, subject to certain terms
and conditions. One of those terms and conditions was that Baldwin “stay away at least
100 yards . . . from the Standard Hotel . . . .”


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       The second incident occurred on August 15, 2012. Ricardo Choc, a Standard
Hotel valet, saw Baldwin walking away from the lobby bar, which was closed that
evening, and towards the exit of the hotel. Choc stopped Baldwin and found in
Baldwin’s possession two bottles of alcohol. Choc told Baldwin that he was not allowed
to take bottles from the bar and told him not to come back to the hotel. The hotel did not
report the incident to the police. At some point after this incident, the hotel’s head of
security saw Baldwin panhandling outside the hotel and told him that if he returned to the
hotel he would be arrested.


       B.     The December 15, 2012 Incident
       On December 15, 2012, at 4:30 a.m., Baldwin entered the Standard Hotel through
the side entrance, walked directly across the lobby, and jumped behind the lobby bar, all
in a matter of four to five seconds. The bar had not been open that night and was locked
with the metal chain. Baldwin claims that he was there only to retrieve recyclables from
the lobby bar and that he had permission from the hotel maintenance staff to do so.
According to Baldwin, the maintenance staff told him he could collect recyclables as long
as he could “circumvent the security.” Even though Baldwin had been warned on at least
three prior occasions not to enter the hotel and was subject to a stay-away order, Baldwin
“chose to go with what the maintenance people told [him] because it was more
beneficial” to him.
       Choc again found Baldwin crouched behind the closed-off lobby bar with a “full
bottle” of alcohol in one hand and three “full bottles” of alcohol next to his shoulder bag
on the bar. Choc took the bottle from Baldwin and told him to wait until hotel security
arrived. He said to Baldwin, “This is not the first time that I’m catching you, and you
know that.” Baldwin responded, “I know, man, I know.” Baldwin ultimately escaped
with his shoulder bag and without any bottles of alcohol.
       Baldwin was also caught on tape. The hotel’s head of security described the video
surveillance footage from the December 15, 2012 incident as “the same footage” as the



                                              4
video surveillance footage from the August 15, 2012 incident, meaning that Baldwin’s
actions on both nights were almost identical.


                                       DISCUSSION


       A.     Standard of Review
       In determining whether the verdict is supported by substantial evidence, “‘“we
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—from which a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citations.]”’ [Citation.]” (People v. Jones (2013) 57 Cal.4th 899,
960; accord, People v. Manibusan (2013) 58 Cal.4th 40, 87; People v. Abilez (2007) 41
Cal.4th 472, 504.) “‘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.]” (People v. Jones, supra, at p. 963.)
“‘“‘[I]t is the jury, not the appellate court, which must be convinced of the defendant’s
guilt beyond a reasonable doubt.’”’” (Id. at p. 961.) “‘Where the circumstances
reasonably justify the trier of fact’s findings, a reviewing court’s conclusion [that]
circumstances might also reasonably be reconciled with a contrary finding does not
warrant the judgment’s reversal. [Citation.]’ [Citation.]” (People v. Manibusan, supra,
58 Cal.4th at p. 87; see People v. Jones, supra, at p. 961; People v. Zamudio (2008) 43
Cal.4th 327, 357.)


       B.     There Is Substantial Evidence that Baldwin Intended To Commit
              a Theft When He Entered the Hotel
       Baldwin does not dispute that he entered the Standard Hotel and attempted to
carry out bottles of alcohol. He challenges only the jury’s finding that he had the specific
intent to commit a theft upon entering the building. We conclude that substantial



                                               5
evidence supported the jury’s finding that Baldwin had the specific intent to commit a
theft when he entered the Standard Hotel.
       A person is guilty of burglary when he or she enters a building or room with the
intent to commit a theft. (§ 459; People v. Tafoya (2007) 42 Cal.4th 147, 170.) Burglary
is a specific intent crime, such that conviction requires proof beyond a reasonable doubt
that the defendant acted with the specific intent to commit a theft. (People v. Ramirez
(2006) 39 Cal.4th 398, 463; People v. Waidla (2000) 22 Cal.4th 690, 734.) A person is
guilty of theft when he or she takes the personal property of another without the owner’s
consent with the intent to deprive the owner of it permanently. (§ 484; People v. Bacon
(2010) 50 Cal.4th 1082, 1117.) Even if a person does not commit a theft, he or she may
still be liable for burglary if upon entry he or she has the specific intent to commit a theft.
(People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042; see People v. Washington (1996)
50 Cal.App.4th 568, 577 [“[a]lthough in many cases the goal of a burglary is theft,
burglary occurs regardless of whether a theft is accomplished or even attempted”].)
       Here, there was substantial evidence to support the jury’s finding that Baldwin
intended to commit a theft when he entered the Standard Hotel. Baldwin admittedly
knew he did not have permission to enter or take anything from the hotel because he had
been ordered by a court and admonished by several hotel employees not to do so. He
nevertheless violated the court order and ignored the warnings. Moreover, Baldwin
entered at 4:30 a.m., a time when, as he knew from prior experience, it was likely that
few employees were working, and brought with him a bag that could be used, and in fact
was used on prior occasions, to attempt to carry out bottles of alcohol. In addition,
Baldwin jumped over and crouched behind the bar, which was closed and locked with a
metal chain, which are generally not actions a person takes if he or she had permission to
enter a building and take property. Therefore, based on the evidence, the jury reasonably
could have concluded that Baldwin had the specific intent to commit a theft when he
entered the hotel.
       Citing People v. Corral (1943) 60 Cal.App.2d 66, Baldwin argues that when a
defendant is convicted “of burglary of a location open to the public, there is usually


                                               6
significant independent evidence of preplanning on the part of the defendant.” Neither
Corral nor any other case cited by Baldwin, however, requires evidence of significant
planning in order to convict a defendant of burglarizing a location or business open to the
public. Burglary requires intent to commit a theft at the time of entry, not planning to
commit a theft at some point prior to the time of entry.
       Moreover Corral supports the conclusion that there was substantial evidence to
support the verdict in this case. In Corral the defendant entered and exited a clothing
store twice and stole a suit concealed in his pants each time. (People v. Corral, supra, 60
Cal.App.2d at pp. 68-69.) While the court acknowledged that the public is invited to
enter places of business, the court stated that “this invitation is not extended to those who
enter for the purpose of theft.” (Id. at p. 71.) The court found that there was substantial
evidence of specific intent to commit a theft upon entering the store based on evidence
that the defendant wore large trousers, was found in possession of property belonging to
the store, and “fail[ed] to give any explanation of that possession, but he spoke the words
‘I give up,’ which are indicative of guilt.” (Id. at pp. 71, 73.) Here, the evidence was that
Baldwin entered the hotel at 4:30 a.m. with a bag used to steal things, walked directly to
the lobby bar, and, when found in possession of bottles of alcohol, gave no explanation
and made statements indicative of guilt (“I know, man, I know”). Substantial evidence
supports the burglary conviction here, just as it did in Corral.
       Even if under People v. Corral, supra, 60 Cal.App.2d 66 the People were required
to present evidence of planning in order to prove Baldwin had the requisite specific intent
because the Standard Hotel is a business open to the public, there was such evidence
here. Although the hotel is open to the public, the closed and locked lobby bar was not.
The fact that Baldwin arrived with a bag for concealing bottles and at a time when few
hotel employees would be working, entered though a side door, and ran to a place he
knew from prior experience had full bottles of alcohol, was substantial circumstantial
evidence of planning.




                                              7
       C.     Additional Penalties and Surcharges
       The People argue that the trial court erred by failing to impose all seven
mandatory penalties and surcharges associated with the $10 crime prevention fine that the
trial court imposed pursuant to section 1202.5, subdivision (a). The People also contend
that, although the trial court imposed one such penalty, the DNA assessment, it did so
incorrectly. Specifically, the People argue that the minute order and the abstract of
judgment should be amended to include, in addition to the fine imposed pursuant to
section 1202.5, subdivision (a), the following: (1) a state penalty of $10 (§ 1464,
subd. (a)(1)), (2) a state surcharge of $2 (20 percent of the $10 crime prevention fee
pursuant to section 1465.7, subd. (a)), (3) a state court construction penalty of $5 (Gov.
Code, § 70372, subd. (a)(1)), (4) a county penalty fee of $7 (Gov. Code, § 76000,
subd. (a)(1)), (5) a penalty of $1 for implementing the DNA Fingerprint, Unsolved Crime
and Innocence Protection Act (Gov. Code, § 76104.6, subd. (a)(1)), (6) a DNA penalty of
$4 (Gov. Code, § 76104.7, subd. (a)), and (7) an emergency medical services penalty of
$2 (Gov. Code, § 76000.5, subd. (a)(1)). We conclude that, although the trial court erred
by failing to impose these mandatory penalty assessments, the trial court also erred by not
determining whether Baldwin had the ability to pay the underlying fine, as required by
section 1202.5, subdivision (a).2




2       The People may not appeal in a criminal case except under the limited
circumstances provided by section 1238. (§ 1238; People v. Chacon (2007) 40 Cal.4th
558, 564.) On a defendant’s appeal, section 1252 provides that an appellate court may,
“in addition to the issues raised by the defendant, consider and pass upon all rulings of
the trial court adverse to the State which it may be requested to pass upon by the Attorney
General.” (People v. Mendoza (2011) 52 Cal.4th 1056, 1076; People v. Braeseke (1979)
25 Cal.3d 691, 701.) In addition, although the failure to raise an issue in the trial court
generally waives the ability to raise it on appeal, “‘“unauthorized sentences”’” “are
reviewable ‘regardless of whether an objection or argument was raised in the trial and/or
reviewing court.’ [Citation.]” (People v. Smith (2001) 24 Cal.4th 849, 852.) Therefore,
“‘the People may challenge an “unauthorized sentence” even on a defendant’s appeal.’
[Citation.]” (People v. Smithson (2000) 79 Cal.App.4th 480, 503.)


                                             8
       The People and Baldwin both cite People v. Castellanos (2009) 175 Cal.App.4th
1524, and the case supports both sides’ arguments. In Castellanos, the court found that
the fine pursuant to section 1202.5, subdivision (a), is subject to seven additional
mandatory penalties and surcharges and that failure to impose them constitutes an
unauthorized sentence that the court may correct for the first time on appeal. (People v.
Castellanos, supra, at pp. 1530-1532.) In order to impose a fine pursuant to
section 1202.5, subdivision (a), however, the trial court must consider “the accused’s
ability to pay; ‘the amount of any other fine’; and the amount of any restitution ordered
paid to victims.” (People v. Castellanos, supra, at p. 1531.)
       Here, the trial court erred in failing to inquire into Brown’s ability to pay the $10
fine pursuant to section 1202.5, subdivision (a). In People v. Castellanos, supra, 175
Cal.App.4th at p. 1533 the Court of Appeal remanded the matter for the trial court to
determine the defendant’s ability to pay. The amount at issue in this case, however, is
$31. Possible imposition of a fine in this amount is not a sufficient justification for the
expenditure of public funds that would occur if we were to remand the matter to the trial
court to determine Baldwin’s ability to pay. In the interests of judicial economy and
conservation of the State’s resources, we strike the $10 fine imposed pursuant to section
1202.5, subdivision (a).




                                              9
                                     DISPOSITION


       The judgment is modified to strike the crime prevention fine of $10 imposed
pursuant to section 1202.5, subdivision (a), and otherwise is affirmed.



                                                 SEGAL, J.*


We concur:



              PERLUSS, P. J.



              ZELON, 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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