Filed 7/30/14 P. v. Villalobos CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR



THE PEOPLE,                                                                       B249485

          Plaintiff and Respondent,                                               (Los Angeles County
                                                                                  Super. Ct. No. KA097714)
          v.

CARLOS YUVINI VILLALOBOS,

          Defendant and Appellant.




          APPEAL from a judgment of the Superior Court of Los Angeles County,
Juan Carlos Dominguez, Judge. Affirmed.
          Ann Krausz, under appointment by the Court of Appeal, for Defendant and
Appellant.
          No appearance for Plaintiff and Respondent.
       The jury convicted defendant Carlos Villalobos of second degree robbery and
second degree commercial burglary. In this appeal from the judgment, we conclude the
convictions are supported by substantial evidence, and we affirm.
       On January 24, 2012, a man entered a 7-Eleven store and took a case of beer
without paying for it. He ran out of the store and ignored a store employee’s shouts to
come back. The store posted the man’s photograph, which was taken from a surveillance
videotape, on the wall behind the cash register.
       Two months later, a detective with the Baldwin Park Police Department, Julio
Alvarez, saw the picture on the wall of the store and thought the man in the photo
resembled defendant, a suspect in another case. Alvarez knew that defendant had been
accused by an acquaintance, Jesse Lepe, of taking his silver chain and pendant by force.
       In order to determine whether defendant was the person who committed the 7-
Eleven burglary, Alvarez showed the store employee who witnessed the crime, Rodil
Velasco, a photo lineup that included defendant’s photograph.1 Velasco selected
defendant’s photograph and identified him as the person who had stolen the case of beer
from the store.
       Defendant was charged with second degree robbery as to Lepe, and second degree
commercial burglary as to the 7-Eleven store. (Pen. Code, §§ 211, 459.)2
       At trial, Lepe identified defendant as the acquaintance who had hit him several
times before robbing him of a silver chain and pendant. Defendant’s friend, Mario
Mercado, testified that he had confronted defendant, who was staying at his apartment,
after finding a silver chain in the toilet at the apartment. According to Mercado’s
testimony, the chain had a pendant with an Aztec calendar, which matched the
description of the necklace stolen from Lepe. Mercado testified that when he confronted
defendant about the necklace, defendant stated that he had done Mercado a favor by
beating up Lepe and taking his chain. Mercado explained that defendant was trying to

       1   The photo lineup was admitted into evidence at trial.

       2   All further undesignated statutory references are to the Penal Code.
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help him because Lepe had punched and assaulted him and called him names.
       Velasco testified that defendant was the person who had run from the 7-Eleven
store with a case of beer. On cross-examination, Velasco testified that he was able to see
defendant’s face when he entered the store. Velasco denied seeing any marks on
defendant’s face or a scar over his left eye. Velasco, who is far-sighted, testified that he
was wearing glasses during the burglary.3 The jury was also shown the store’s
surveillance videotape of the burglary and the photograph, which was printed from the
videotape, of the burglary suspect.
       Defendant did not present any witnesses at trial. In closing argument, his counsel
argued that Lepe’s testimony regarding the robbery was not credible and was not
supported by corroborating evidence such as a receipt or photograph of the chain and
pendant. Defense counsel also argued that defendant was not the person depicted in the
7-Eleven store’s surveillance videotape and photograph. Counsel asserted the videotape
was unreliable because there was “something” blocking the view of the suspect and the

       3 The jury received the following instruction on eye witness identifications
(CALCRIM 315): “You have heard eyewitness testimony identifying the defendant. As
with any other witness, you must decide whether an eyewitness gave truthful and
accurate testimony. In evaluating identification testimony consider the following
questions: Did the witness know or have contact with the defendant before the event?
How well could the witness see the perpetrator? What were the circumstances affecting
the witness’s ability to observe, such as lighting, weather conditions, obstructions,
distance, and duration of observation? How closely was the witness paying attention?
Was the witness under stress when he or she made the observation? Did the witness give
you a description and how does that description compare to the defendant? How much
time passed between the event and the time when the witness identified the defendant?
Was the witness asked to pick the perpetrator out of a group? Did the witness ever fail to
identify the defendant? Did the witness ever change his or her mind about the
identification? How certain was the witness when he or she made an identification? Are
the witness and the defendant of different races? Was the witness able to identify other
participants in the crime? Was the witness able to identify the defendant in the
photographic or physical lineup? Were there any other circumstances affecting the
witness’s ability to make an accurate identification? The People have the burden of
proving beyond a reasonable doubt that it was the defendant who committed the crime. If
the People have not met this burden, you must find the defendant not guilty.”

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item he was carrying. In addition, he argued that “no officer was able to [say] whether
they could see a scar or not on that face.”
       The jury convicted defendant of second degree robbery and second degree
burglary. The trial court imposed a base mid-term sentence of three years for the robbery
conviction (§ 213, subd. (a)(2)), and a consecutive eight months for the burglary
conviction (1/3 the mid-term of two years) (§§ 461, 1170, subd. (h)(1)). He received a
total sentence of three years and eight months.
       Defendant timely appealed from the judgment. We appointed counsel to represent
him. After reviewing the record, counsel filed an opening brief that requested our
independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441.
We directed counsel to send the record and a copy of the opening brief to defendant, and
notified defendant that he had 30 days within which to submit any contentions or issues
that he wished us to consider.
       We received defendant’s one-page, handwritten letter in which he challenged the
sufficiency of the evidence to support his convictions. His letter argued that the
prosecution’s evidence failed to establish that he had committed either crime. His letter
pointed out that he has a “pretty big” scar on his face; it also stated, without providing
any explanation, that he had an alibi as to the robbery.
       The applicable standard of review for evaluating the sufficiency of the evidence is
as follows: “When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains 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. [Citation.]” (People v. Lindberg (2008)
45 Cal.4th 1, 27.) “A judgment challenged on appeal is presumed correct, and it is the
appellant’s burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal
defendant claims insufficiency of the evidence on a particular element of the crime of
which he was convicted, we presume the evidence of that element was sufficient, and the
defendant bears the burden of convincing us otherwise. To do so, the defendant must

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present his case to us in a manner consistent with the substantial evidence standard of
review. That is, the defendant must set forth in his opening brief all of the material
evidence on the disputed element in the light most favorable to the prosecution, and then
must persuade us that that evidence cannot reasonably support the jury’s verdict.
[Citation.]” (People v. Battle (2011) 198 Cal.App.4th 50, 62.)
       Measured by these standards, defendant’s letter falls short of raising a proper
challenge to the sufficiency of the evidence. As to the burglary conviction, defendant
restricts his analysis to the evidence most favorable to himself—his facial scar—and fails
to consider the prosecution’s reasonable, credible, and solid evidence from which a
reasonable jury could find that he had stolen the carton of beer from the store. As to the
robbery conviction, defendant mentions an alibi defense that he does not explain or
contend was presented at trial.
       We have conducted our own review of the record and are convinced the
prosecution’s evidence provided substantial support for defendant’s convictions of the
burglary and robbery charges. The identification evidence was strong and the jury was
properly instructed as to the factors to be considered when evaluating eyewitness
identification testimony. Also, the scar on defendant’s face was brought to the jury’s
attention during defense counsel’s closing argument. The jury was thus well-equipped to
evaluate the significance of the facial scar in relation to the store employee’s
identification testimony and the store’s surveillance videotape and photograph of the
suspect. We conclude the jury’s finding that defendant committed the burglary is
supported by substantial evidence.
       As to the robbery, Lepe, who was acquainted with defendant, identified him in
court as the person who had robbed him of the necklace after hitting him several times.
Defendant’s friend Mercado testified that he had found the necklace hidden in the toilet at
his apartment where defendant was staying. Moreover, Mercado testified that defendant
had admitted beating up Lepe and taking his necklace. Defendant’s cryptic reference to
an alibi fails to cast doubt on the validity of his conviction because there is nothing to


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indicate that an alibi defense was presented to the jury. We conclude the jury’s finding
that defendant committed the robbery is supported by substantial evidence.
       For all of the above reasons, we are satisfied that defendant’s attorneys have fully
complied with their responsibilities and that no arguable appellate issue exists. (Smith v.
Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 110.)


                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EPSTEIN, P. J.
We concur:



       WILLHITE, J.



       MANELLA, J.




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