People v. Lopez CA2/6

Filed 10/17/13 P. v. Lopez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B241615 (Super. Ct. No. GA084426) Plaintiff and Respondent, (Los Angeles County)

v.

MIGUEL LOPEZ,

Defendant and Appellant.

Miguel Lopez appeals the judgment entered after a jury convicted him of second degree commercial burglary (Pen. Code,1 §§ 459/461, subd. (b)). In a bifurcated proceeding, the trial court found true allegations that appellant had suffered two prior serious or violent felony convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served seven prior prison terms (§ 667.5, subd. (b)). Appellant was sentenced to seven years in state prison and was awarded 284 days of presentence custody credit. He contends the evidence is insufficient to support his conviction and that he is entitled to additional presentence custody credit. We shall order the judgment modified to reflect an additional 100 days of presentence custody credit. Otherwise, we affirm.

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

STATEMENT OF FACTS On the morning of October 2, 2011, Maria Gallardo and Shena Villa were working at a CVS store in Glendale when the store alarm sounded. Gallardo and Villa looked toward the front of the store and saw a man run out the door holding a basket filled with store merchandise. Villa, who was working at the register closest to the exit, ran out the door. Villa was unable to see where the man had gone and returned to the store. Thirty minutes later, Villa was working at a cash register when appellant, who was wearing a green baseball cap and a black leg brace, grabbed her arm and asked if someone had stolen something. Villa called Gallardo and told her what had happened. Gallardo stepped just outside the front entrance and asked appellant if she could help him.2 The man who had run out of the store with the basket of merchandise was standing a few feet behind appellant. Gallardo said she had no idea if anything had been stolen and went back inside the store. Gallardo reviewed the store's surveillance video from earlier that morning, a recording of which was played for the jury. The video depicts the following: Appellant entered the store, picked up a basket, and proceeded to walk toward aisle 5. Appellant returned to the front of the store from aisle 1 without the basket. He stood at the door for a couple of seconds, then reentered the store with the man Gallardo had seen with appellant earlier that day. About 15 seconds later, appellant stood in the path of the automated doors while the other man walked to aisle 1, returned with a basket full of merchandise, and ran out of the store. Villa ran out the front door after the man. Villa reentered the store shortly thereafter, and appellant followed right behind her. Appellant stood near the second register, looked around for about 30 seconds, and left the store.