People v. Aguilar CA2/8

Filed 12/21/20 P. v. Aguilar CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B301781

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA121067) v.

HECTOR IVAN AGUILAR

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Stacy L. Wiese, Judge. Affirmed.

Jason M. Howell, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION Appellant challenges his conviction of second-degree robbery and shoplifting. On appeal, he argues: (1) substantial evidence does not support the robbery conviction; and (2) the trial court prejudicially erred by failing to instruct the jury sua sponte on the lesser included offense of grand theft. We disagree and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In an Information filed June 14, 2019, appellant Hector Ivan Aguilar was charged with the second degree robbery of Douglas Tu, a violation of Penal Code1 section 211, and shoplifting from Los Compadres Market, a violation of Penal Code section 459.5. The Information further alleged pursuant to section 667.5, subdivision (b) that appellant suffered two prior convictions. Appellant entered pleas of not guilty to both counts. On August 1, 2019, trial by jury commenced. The evidence at trial established that on May 16, 2019, at 9:04 a.m., appellant entered Los Compadres Market in Baldwin Park, walked straight to the last refrigerator at the back of the store, picked up a chocolate milk from the refrigerator, and put it in his backpack. The market’s owner Frank Chen was working at the cash register that morning; he observed appellant “walk[] past the cash register without paying, and . . . as he was walking, he also picked up a loaf of bread and . . . left the store.” Chen observed appellant take the chocolate milk on the video surveillance camera.