People v. Alcalde CA2/8

Filed 8/14/14 P. v. Alcalde CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B252111

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA085595 v.

CALEB J. ALCALDE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark S. Arnold, Judge. Affirmed.

Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_______________________

Defendant Caleb J. Alcalde appeals from the judgment entered following a jury trial that resulted in his conviction of assault by means likely to produce great bodily injury (GBI), and a related enhancement. Based on our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), we affirm both the conviction and the enhancement.

FACTS

A. The People’s Case Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357-358 (Zamudio)), the evidence established that in December 2011, defendant lived with his father, David Alcalde (Alcalde Sr.), on the 1600 block of Crenshaw Boulevard, in Torrance. At the time, Javier Vicencio was the general manager and partial owner of a gas station and mini market located two doors south of the Alcalde home, on the corner of Crenshaw and Carson Boulevards. Sometime prior to December 7, 2011, a business dispute caused Vicencio to forbid defendant from being on the gas station premises. Assault victim Brian Willett had worked at the gas station since 2007. Over the years, Willett had become friendly with Alcalde Sr., who was a frequent customer at the gas station. Willett knew defendant as both a customer and as Alcalde Sr.’s son. He knew that defendant was not allowed on the premises. Willett was on duty the evening of December 7, 2011. At about 6:10 p.m., Willett and Alcalde Sr. were sitting on the tailgate of Willett’s truck, which was parked in view of the gas pumps and store, smoking and talking. When defendant got off the bus at a little after 6:00 p.m., Alcalde Sr. waved him over and they included him in the conversation. During discussion of the aforementioned business dispute, Willett said jokingly to defendant something like, “Suck my dick, asshole” and either “I’ll kick your ass” or “I could kick your ass.” Alcalde Sr. laughed—it was not unusual for the friends to use coarse language. After a while, Willett put his cigarette down on the tailgate and went inside to help a customer. When Willett returned, he picked up his cigarette and sat back down on the tailgate. Willett noticed that defendant’s demeanor had changed since