People v. Alamillo CA6

Filed 1/14/14 P. v. Alamillo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038668 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F21766)

v.

EDUARDO OVIEDO ALAMILLO,

Defendant and Appellant.

Defendant Eduardo Oviedo Alamillo appeals his conviction for felony second- degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))1 stemming from his removal of two packages of beer from a market in Watsonville. Defendant’s only contention on appeal is that there was insufficient evidence of taking the beer by force or fear to support the robbery conviction. For the reasons stated here, we will affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND This factual background is based on the testimony of Valente Arteaga, the manager of the market, offered during defendant’s one-day bench trial. On October 19, 2011, defendant entered the market with a companion. Arteaga recognized defendant because the market’s surveillance cameras had previously recorded defendant and another individual stealing a product from the market on one occasion and breaking store windows on another occasion. Because of defendant’s negative history 1 Unspecified statutory references are to the Penal Code.

with the market, Arteaga alerted other employees via a radio device of defendant’s presence. Defendant walked to the beer section of the market and appeared nervous, repeatedly looking toward the cash registers in the front of the store. Defendant’s companion remained near the cash registers and appeared to communicate with defendant by nodding and shaking his head. Defendant then walked over to Arteaga and told him he “knew” him and that Arteaga “shouldn’t get involved with [defendant’s] family.” Arteaga felt threatened and fearful because of these statements. Defendant’s companion then walked over to Arteaga but did not speak. Defendant then told Arteaga that he and his companion would be waiting for Arteaga outside, which Arteaga understood to mean that if he followed them, “something more serious would happen.” Although defendant was not yelling, Arteaga characterized the encounter as “[a] little combative.” After defendant finished talking to Arteaga, he and his companion returned to the beer section, took two packages of beer, and left the store. Neither Arteaga nor any other market employee confronted defendant or his companion, opting instead to report the matter to the police. Regarding his failure to confront or follow defendant following the theft, Arteaga stated that his “first concern is my safety and the safety of my employees . . . .” These safety concerns outweighed Arteaga’s concerns about the theft of a relatively small amount of merchandise. The decision not to follow defendant was also based on a store policy to report thefts to the police rather than attempting to stop shoplifters. Arteaga testified that this policy is borne of concerns for employee safety. Defendant was arrested, charged, and held to answer via amended information for: (Count 1) felony active participation in a street gang (§ 186.22, subd. (a)); (Count 2) felony second-degree robbery (§§ 211, 212.5, subd. (c)); (Count 3) felony dissuading a witness from testifying by force or threat of force (§ 136.1, subd. (c)(1)); (Count 4) felony second-degree commercial burglary (§§ 459, 460, subd. (b)); (Count 5) felony