People v. Hamilton CA2/3

Filed 10/16/15 P. v. Hamilton CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B260084

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA419120) v.

MANDALE HAMILTON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed. A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

INTRODUCTION A jury found defendant and appellant Mandale Hamilton guilty of assault causing great bodily injury and of second degree burglary. As to the burglary, the jury found true a gang allegation. Hamilton contends on appeal that there was insufficient evidence, first, to show he entered the building with an intent to commit a theft or a felony and, second, to support the true finding on the gang allegation. We disagree and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND I. Factual background. A. November 21, 2013: Hamilton steals a bag of chips. Kenneth Cho owns Marvin’s Liquor near the intersection of Jefferson and Denker in Los Angeles. Gaspar Martinez was the store’s cashier. About one week before November 20, 2013, Cho told Hamilton not to come to the store “[b]ecause he’s trying to keep shoplifting.” Despite being told he wasn’t welcome at the store, Hamilton returned on November 20 and stole a soda. The next day, November 21, 2013, Hamilton came into the store and took a bag of Doritos. When Martinez asked Hamilton to pay for the chips, Hamilton angrily refused. Hamilton made a gesture: he put his hands up at chest level with both thumbs up. This incident was captured by video surveillance, which was played for the jury. Martinez has known Hamilton “since he was a kid.” Hamilton never said he was a gang member. B. November 25, 2013: Hamilton assaults Cho. Hamilton returned to the store on November 25, 2013. Cho told him not to come in, but Hamilton stood “there and then he refused to go.” Hamilton did not say anything. When Cho started to walk outside to call the police, Hamilton hit Cho several times, rendering Cho unconscious.1