Filed 7/7/15 P. v. Hudson CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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,                                                          B257539

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA128817)
                   v.

TREVIS HUDSON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Kelvin D. Filer, Judge. Affirmed.


         Sharon M. Jones, 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, Assistant Attorney General, Scott A. Taryle and Kimberly J.
Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.


                                              __________________
       Defendant Trevis Hudson appeals from the judgment of conviction for burglary.
He contends that the evidence was insufficient to establish the intent element of burglary,
in that he did not intend to assault the victim with a deadly weapon when he entered her
apartment. We conclude the evidence is sufficient and affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

       Defendant began dating C.H. while they were both working for Delta Airlines.
During their relationship, defendant helped C.H. find and pay for an apartment.
Defendant also purchased two televisions for C.H. to put in this apartment. On the
morning of June 20, 2013, C.H. had a phone conversation with defendant in which she
told him she “needed space.” Defendant asked her to return the TVs, but C.H. refused
because she believed they were a gift.
       Defendant continued to send C.H. text messages throughout the day, in which he
told her he would come to her apartment later that day. C.H. grew uneasy due to the text
messages and an incident that day at work where she saw defendant near her work area
after she told him to stay away. C.H. alerted her supervisors to the situation, and one of
the supervisors followed her home.
       That evening, defendant came to C.H.’s apartment with two sheriff’s deputies,
intending to retrieve the TVs. C.H. told the deputies that she did not have any property
belonging to defendant, and the deputies told defendant he would have to go through civil
court to obtain the TVs. Defendant continued to text C.H. that night. Defendant sent a
text saying, “I have nothing else to lose. Smart move.” C.H. felt that defendant was
threatening her with “more consequences.” She asked, “Is that a threat?” Defendant did
not respond.
       Around 11:45 p.m., defendant returned to C.H.’s apartment building, grabbed a
hammer from the backseat of his car, and climbed up to C.H.’s balcony. He used the
hammer to break the lock on her window and kicked through the glass. Once inside the
apartment, defendant went into C.H.’s bedroom, where C.H. was talking on the phone to


                                             2
her ex-boyfriend. Defendant swung the hammer at C.H., but she blocked it from hitting
her and knocked the hammer out of his hand.
       Defendant then dragged C.H. from her bed, punched her in the face several times,
and strangled her until she passed out. When C.H. regained consciousness, defendant
again assaulted her, this time with a knife from her kitchen. C.H. blocked the knife, and
after a struggle defendant dropped the knife. Defendant then forcefully inserted his
fingers into C.H.’s vagina. When C.H. screamed, defendant told her to shut up and again
strangled her until she passed out.
       When C.H. regained consciousness again, she ran toward the front door, where
defendant grabbed her. C.H. attempted to break free, and defendant slammed her down
into the broken glass by the balcony, where he strangled her for a third time until she
passed out. When C.H. regained consciousness, she escaped her apartment by climbing
over her balcony onto a neighboring apartment’s balcony. Defendant’s entire attack took
about 10 minutes.
       Defendant was charged with first degree burglary (Pen. Code, § 459), two counts
of assault with a deadly weapon (§ 245, subd. (a)(1)), assault to commit rape during the
commission of a first degree burglary (§ 220, subd. (b)), and forcible sexual penetration
by a foreign object (§ 289, subd. (a)(1)(A)). It was further alleged that forcible sexual
penetration by a foreign object was committed during the commission of burglary.
Defendant pleaded not guilty to all charges.
       At trial, defendant denied wanting to physically assault C.H. when he entered her
apartment. He admitted that he “got really mad” and felt “taken advantage of.” He stated
that seeing his boss at the apartment with C.H. when he went to retrieve the TVs upset
him because he felt like he would not be able to return to work. He also claimed that
once he climbed up to her balcony, he heard C.H. talking on the phone to her ex-
boyfriend, which “got me to have the overdrive to do what I did.” He admitted that when
he entered C.H.’s apartment, it was not about the TVs anymore. He also admitted that he
went in the apartment to hurt C.H. When asked what he meant by “hurt,” defendant said,
“As far as you go through all these emotions that I felt, so I wanted to physically, just,

                                               3
uh.” However, he then stated that physically assaulting C.H. was “the furthest thing from
my mind” when he entered the apartment. Defendant denied assaulting C.H. with the
hammer or knife, saying that he threw both aside willingly.
       Defendant was convicted of first degree burglary, both counts of assault with a
deadly weapon, and forcible sexual penetration by a foreign object, but found not guilty
of assault to commit rape during the commission of a burglary.1 The jury also found the
allegation true that forcible sexual penetration took place during the commission of a
burglary. Defendant was sentenced to 17 years, 4 months in prison. Defendant filed a
timely notice of appeal.

                                       DISCUSSION

       On appeal, defendant contends the evidence was insufficient to support the jury’s
finding that he entered C.H.’s apartment with the intent to assault her with a deadly
weapon. As a result, he contends the burglary count and the finding that the sexual
penetration was committed during the commission of a burglary cannot stand. We
disagree.

A.     Standard of Review

       When there is a challenge to evidentiary support of a conviction, we must review
the whole record in the light most favorable to the judgment to determine whether
substantial evidence existed for a reasonable trier of fact to find the defendant guilty
beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) While we
must “ ‘ensure the evidence is reasonable, credible, and of solid value,’ ” we must give
deference to the trier of fact’s conclusions about the truth of facts and the credibility of
witnesses. (Ibid.)


1      The prosecution alleged that defendant assaulted C.H. with the knife in an attempt
to rape her; however, C.H. could not testify to what happened after defendant sexually
assaulted her with his fingers because she passed out from strangulation.

                                               4
B.        Burglary

          First degree residential burglary is established when a defendant unlawfully enters
into a dwelling with the intent to commit a felony. The defendant must intend to commit
a felony at the time of entry.2 (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.)
          Intention of the defendant is a question of fact, which may be resolved by looking
at the conduct of the accused and the circumstances of a particular case. (People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1574.) If circumstances and conduct reasonably
indicate his intent was to commit a felony, a verdict of guilty will not be overturned.
(Ibid.)
          In People v. Clifton (1957) 148 Cal.App.2d 276 (Clifton), Division Two of this
District concluded that the defendant’s conduct before and after entering the victim’s
apartment was enough to establish intent to commit assault. The defendant visited the
victim’s apartment and asked to talk to her. (Id. at p. 277.) After she refused to open the
door, the defendant asked, “Are you going to open the door or do you want me to knock
it down and come in and get you?” (Ibid.) The victim escaped through another door
before the defendant broke in; once inside, the defendant vandalized the apartment. (Id.
at pp. 277-278.) The defendant was seen carrying a tire iron as he left the apartment. (Id.
at p. 278.) These facts were sufficient for burglary.
          Similarly to the defendant in Clifton, defendant made a threatening comment to
C.H. before climbing onto the balcony and breaking into her apartment when he texted
her that he had nothing to lose. When C.H. asked defendant if he was threatening her,
she did not hear from him again until he broke into her home and assaulted her with a

2       The jury was instructed that entry occurs when the defendant “penetrates the area
inside the building’s outer boundary,” and that “[a]n attached balcony designed to be
entered only from [the] inside of a private, residential apartment on the second . . . floor
of a building is inside a building’s outer boundary.” Under these instructions, the jury
likely concluded that defendant’s unlawful entry occurred when he entered the balcony,
not when he further entered the interior of C.H.’s apartment. On appeal, defendant makes
no argument that his intent upon entering the balcony was any different from his intent
upon entering the apartment.
                                               5
hammer. By defendant’s own admission at trial, he went into the apartment wanting to
hurt C.H. in some way. Defendant’s intent to assault C.H. is even clearer than the
defendant’s in Clifton, because defendant entered the apartment with the hammer he then
used to assault C.H. In Clifton, an inference had to be made that the defendant had
intended to use the tire iron he held as a weapon even though he did not confront the
victim face to face.
       The fact that defendant actually did commit assault with a deadly weapon upon
entering C.H.’s apartment is also evidence from which intent may be reasonably inferred.
(People v. Jones (1962) 211 Cal.App.2d 63, 71-72.) Defendant’s conduct before entering
and his subsequent commission of assault constitute sufficient evidence for the trier of
fact to reasonably infer that defendant entered C.H.’s apartment with intent to commit
assault with a deadly weapon.
       Defendant argues that his intent is not ascertainable from circumstances
surrounding his entry into C.H.’s apartment. However, a trier of fact could reasonably
decide otherwise given the evidence presented at trial. He also argues that the fact that he
had not previously attempted to assault C.H. or any other woman supports the conclusion
that he lacked intent to assault in this case. While defendant correctly asserts that a jury
may use evidence of past crimes to infer intent to commit the same crime (Evid. Code,
§ 1101, subd. (b); People v. Wilson (1991) 227 Cal.App.3d 1210, 1216), a lack of past
crimes does not undermine the conclusion that defendant had the required intent here.
The prosecution presented testimony from the victim, testimony from expert witnesses,
and several photographs corroborating the victim’s account. The only evidence
contradicting the conclusion that defendant had intent to commit assault as he entered
C.H.’s apartment is defendant’s own testimony about his thought process before he
entered the building. Even this testimony does not provide a clear counter-narrative as to
what defendant’s intent actually was if not to assault C.H. He admitted that when he
entered C.H.’s apartment, it was not about the TVs anymore and that he went in the
apartment to hurt C.H. In any event, the jury was free to disbelieve the totality of his
testimony.

                                              6
                                DISPOSITION

    The judgment is affirmed.




                                         RUBIN, J.
WE CONCUR:



          BIGELOW, P. J.



          FLIER, J.




                                     7
