Filed 11/7/13 P. v. Gaines CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B245974

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. MA056644)
                   v.

RODNEY LOUIS GAINES,

                         Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles 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.



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       A jury found defendant and appellant Rodney Louis Gaines guilty of second
degree burglary and simple assault. He appeals, contending there is insufficient 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.
                 FACTUAL AND PROCEDURAL BACKGROUND
       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



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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



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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)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.




1      All further undesignated section references are to the Penal Code.


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       This appeal followed.2
                                       DISCUSSION
       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.]” (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.)” (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.” (Id. at pp. 1041-1042; see also CALCRIM 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



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.


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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.)
                                       DISPOSITION
       The judgment of conviction is affirmed.


                                                           GRIMES, J.


       We concur:
                      BIGELOW, P. J.




                      FLIER, J.




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