Filed 9/25/20 P. v. Andrade CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B295695
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA468226)
v.
KEVIN ANDRADE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Richard S. Kemalyan, Judge. Affirmed.
N. Noelle Francis, 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, Supervising Deputy Attorney General,
and Michael J. Wise, Deputy Attorney General, for Plaintiff and
Respondent.
Defendant Kevin Andrade appeals from a judgment of conviction
after a jury convicted him of first-degree residential burglary (Pen.
Code, § 459), but hung as to codefendants Douglas Perez and Katherine
Fiallos.1 Defendant contends the trial court erred when it admitted
evidence of defendant’s participation in a prior burglary, because the
incident was unduly prejudicial and had no tendency to prove intent.
He also asserts error in the court’s admission of unredacted evidence of
another prior burglary involving Fiallos and an unknown male.
Defendant contends these errors were cumulative and resulted in an
unfair trial. Finally, defendant contends insufficient evidence supports
a finding that he intended to commit theft to support his burglary
conviction.
We find no error in the admission of the prior burglaries, and
conclude that sufficient evidence supports the finding that defendant
intended to commit theft. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
By information, defendant, Perez, and Fiallos were each charged
with committing first-degree residential burglary (§ 459) of an
apartment complex located on Mariposa Avenue. The three
codefendants were jointly tried before a jury.
1 Unspecified references to statutes are to the Penal Code. Perez and
Fiallos are not parties to this appeal.
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1. Prosecution Evidence
A. The Mariposa Burglary
Around 5:00 a.m. on May 19, 2018, the property manager of an
apartment complex located on Mariposa Avenue called 911 to report
that a stranger had entered the complex’s subterranean laundry room
without permission. The property manager informed the police that the
laundry room could be accessed only through the complex’s
subterranean parking garage, which was locked.
After the property manager unlocked the parking garage door to
let Los Angeles Police Department Officers Terrel Maston and Antonio
Velasco inside the garage, the officers walked to the laundry room and
found defendant and Perez inside the room with the lights turned off.
After defendant and Perez were detained, an officer who conducted a
pat-down search of defendant found a flathead screwdriver and three
gloves. Fiallos was later detained after a third officer saw her walking
away from the apartment complex.
The prosecution played video footage from the complex front door
and subterranean parking garage. Maston summarized the footage as
follows. Around 4:00 a.m., defendant approached the apartment
complex front door while pushing a bicycle. Wearing gloves, defendant
used a screwdriver to pry open the door before walking with his bicycle
to an elevator. Defendant took the elevator down to a subterranean
parking garage. After exiting the elevator, defendant stopped inside
the laundry room before walking to the garage door a short distance
away. When defendant opened the door to let Fiallos inside, both
individuals walked into the laundry room. As Fiallos remained inside
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the laundry room, defendant walked into the parking garage
emptyhanded, and began “zigzagging in and out of the cars” before
returning to the laundry room holding unknown items. Defendant
repeated this three times. Thereafter, Perez entered the apartment
complex front door defendant had opened, and joined defendant and
Fiallos inside the laundry room.
Approximately 10 minutes after the police left the apartment
complex with defendant and Perez in custody, the property manager
inspected the laundry room. During his inspection, he noticed that the
coin slides to both laundry machines had been pushed “all the way in,”
and were in a different position than when he had seen them one or two
days before the incident.
When Velasco conducted an inventory search of defendant’s
backpack at the station, he recovered a collapsible baton. According to
Maston, a baton could be used to break windows during the commission
of a burglary. Maston also testified that gloves (used to shield
fingerprints or DNA) and a flathead screwdriver (used to pick or break
a lock) could also be used as burglary tools.
B. The Prior Leeward Avenue Burglary
To establish defendant’s intent and the absence of mistake or
accident, the prosecutor apprised the court in his trial brief that he
would seek to introduce evidence of defendant’s participation in an
August 9, 2017 vehicular burglary inside an apartment complex
parking garage located on Leeward Avenue. Before the prosecution
called its first witness, defense counsel objected. He argued that that
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evidence of the Leeward Avenue burglary was not sufficiently similar to
establish intent in this case, and would be used as propensity evidence.
The prosecutor replied that the prior burglary inside an apartment
complex parking garage was sufficiently similar, because in the
Leeward Avenue burglary defendant had walked around the parking
garage with a bicycle (as in the instant case) before receiving stolen
items that his cohort had taken from a parked car. Defendant pleaded
guilty to second degree vehicular burglary and was on probation when
he was arrested for burglary in this case.
The court found the Leeward Avenue burglary sufficiently similar
to the charged offense to establish intent and absence of mistake. The
court further found that the probative value of the prior burglary was
not substantially outweighed by the danger of prejudice under Evidence
Code section 352, as the jury would be instructed on the limited purpose
of the prior burglary under CALCRIM No. 375.2 Nevertheless, the court
prohibited the prosecutor from referencing defendant’s conviction for
the prior burglary.
2 Prior to ordering the jury into deliberations, the court instructed the
jury under CALCRIM No. 375 as follows: “You may consider this evidence
only if the People have proved by a preponderance of the evidence that
[defendant] in fact committed the uncharged offenses. . . . [¶] If the People
have not met this burden, you must disregard this evidence entirely. [¶] If
you decide that [defendant] committed the uncharged offense[], you may, but
are not required to, consider that evidence for the limited purpose of deciding
whether: [¶] A. The defendant acted with the intent to commit a theft in
this case, or [¶] B. The defendant’s alleged actions were not the result of
mistake or accident. [¶] . . . [¶] Do not consider this evidence for any other
purpose.”
5
During trial, the prosecutor called Erika Renoj to testify about the
Leeward Avenue burglary. Around 1:30 p.m. on August 9, 2017, as she
was approaching her parked car inside the apartment complex where
her mother lived, she noticed a “bent” above the door handle to the front
passenger’s side door. When she got closer, she saw the car door and
glove compartment had been opened, and realized that registration
papers, a toolbox, and $21 were missing.
Video surveillance of the burglary was played for the jury. The
video surveillance, which we have reviewed, depicts two male
individuals walking through the parking garage. One individual is
pushing a bicycle while the other individual approaches Renoj’s car
before walking out of site. Approximately one minute later, one of the
males reappears, crouches down near the front passenger door, and
uses a tool to open the door. The front headlights of the car start
flashing, and the individual walks a short distance away before
returning and sitting in the front passenger’s seat. The individual
hands several items to the man holding the bicycle. Both individuals
walk away from the car and exit the parking garage and apartment
complex.
An investigating officer of the Leeward Avenue burglary used the
video surveillance to create close-up photographs and crime flyers of the
suspects. Following his arrest in the instant case for the burglary of the
Mariposa Apartment complex, defendant told the investigating
detective that he was depicted on the Leeward Avenue video
surveillance as the man who was holding a bicycle and who received the
items taken by the other individual from the parked car.
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2. Defense Evidence
Fiallos was the only defendant who testified. She and defendant
went to the Mariposa Avenue apartment complex because they were
looking for a place to sleep, and both had previously been inside the
laundry room. After entering the laundry room, Fiallos asked
defendant to step outside so that she could defecate in the sink. When
defendant returned, Fiallos asked whether defendant had anything she
could use to clean herself. Defendant left the laundry room and
returned with a roll of paper towels, and left again after Fiallos asked
for privacy. Defendant left and returned multiple times with a bottle of
bleach and other cleaning solution.
3. Verdict and Sentencing
The jury found defendant guilty as charged. The jury was
deadlocked as to Fiallos and Perez, and the court declared a mistrial as
to both codefendants.3 The court sentenced defendant to the middle
term of four years imprisonment. At the time of the offense, defendant
was on formal probation for the Leeward Avenue burglary. The court
terminated probation and imposed the previously suspended sentence of
three years in state prison, to be served concurrently with the sentence
in this case. The court imposed but stayed fines, fees, and assessments,
based on defendant’s inability to pay.
3 The jury foreperson informed the court that the jury was 10-2 in favor
of guilt for both codefendants.
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DISCUSSION
1. Admission of the Leeward Avenue Burglary
Defendant contends the trial court abused its discretion by
admitting evidence of the Leeward Avenue burglary. He asserts the
prior burglary was unduly prejudicial and did not have the tendency to
prove his intent to commit theft. We disagree.
A. Governing Law and Standard of Review
“‘Subdivision (a) of [Evidence Code] section 1101 prohibits
admission of evidence of a person’s character, including evidence of
character in the form of specific instances of uncharged misconduct, to
prove the conduct of that person on a specified occasion. Subdivision (b)
of section 1101 clarifies, however, that this rule does not prohibit
admission of evidence of uncharged misconduct when such evidence is
relevant to establish some fact other than the person’s character or
disposition.’ (People v. Ewoldt (1994) 7 Cal.4th 380, 393 [(Ewoldt)].)
‘Evidence that a defendant committed crimes other than those for which
he is on trial is admissible when it is logically, naturally, and by
reasonable inference relevant to prove some fact at issue . . . .
[Citations.]’” (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).)
The trial judge has the discretion to admit such evidence after
weighing the probative value against the prejudicial effect. (Fuiava,
supra, 53 Cal.4th at p. 667.) “‘When reviewing the admission of
evidence of other offenses, a court must consider: (1) the materiality of
the fact to be proved or disproved, (2) the probative value of the other
crime evidence to prove or disprove the fact, and (3) the existence of any
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rule or policy requiring exclusion even if the evidence is relevant.
[Citation.]’ [Citation.]” (Ibid.)
B. Analysis
The trial court did not abuse its discretion in finding the evidence
of the Leeward Avenue burglary was sufficiently similar to the charged
offense to establish intent.
Evidence of a prior act is material if the prosecution seeks to use it
to prove an element of the charged offense, such as intent. (People v.
Hendrix (2013) 214 Cal.App.4th 216, 239–240 (Hendrix).) The principal
question affecting the probative value of an uncharged prior act is its
nature and the degree of similarity to the charged offense. (People v.
Zepeda (2001) 87 Cal.App.4th 1183, 1211.) The “least degree of
similarity” between an uncharged act and the charged offense is
required to prove intent. (Ewoldt, supra, 7 Cal.4th at p. 402.)
Because evidence of the Leeward Avenue burglary was used to
establish defendant’s intent in the Mariposa Avenue burglary, the least
degree of similarity between both burglaries was required. (Ewoldt,
supra, 7 Cal.4th at p. 402; Hendrix, supra, 214 Cal.App.4th at pp. 240–
241.) In both burglaries, defendant unlawfully entered an apartment
complex with a cohort and walked through a parking garage around
parked cars. That defendant received items stolen from a car by an
accomplice during the Leeward Avenue burglary is relevant to prove in
the instant case that, as he was “zigzagging in and out of the cars”
inside the Mariposa Avenue parking garage, he did so with the intent to
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steal, and that he possessed that intent when he broke into the
apartment complex. (See People v. Rocha (2013) 221 Cal.App.4th 1385,
1394 [“the question . . . is not the number of points of similarity but
their logical relevance to establish the mental element of the charged
offense”].)
Nor did the trial court abuse its discretion when admitting the
evidence under Evidence Code section 352. (See People v. Lewis (2009)
46 Cal.4th 1255, 1286 [trial court’s ruling will not be disturbed unless
its exercise of discretion was “‘“arbitrary, capricious, or patently absurd
[and] resulted in a manifest miscarriage of justice”’”].) Evidence of the
Leeward Avenue burglary was no more inflammatory than evidence
supporting the charged offense. (People v. Leon (2015) 61 Cal.4th 569,
599–600.) In the Leeward Avenue burglary, defendant received stolen
property after his cohort broke into a parked car. Defendant’s role in
the burglary in this case was far more active: he forcibly broke into the
apartment complex and let Fiallos and Perez inside. While walking
through parked cars, defendant possessed a flathead screwdriver,
gloves, and a collapsible baton, each of which were identified as
potential burglary tools.
Quoting People v. Gibson (1976) 56 Cal.App.3d 119, 130 (Gibson),
defendant asserts it would be “the essence of sophistry and lack of
realism” to believe the jurors were capable of following the limiting
instruction so as to refrain from improperly considering the evidence as
propensity evidence.
But Gibson has been held to be “inapposite” where “[t]here is no
evidence that the jury ignored the court’s instructions and committed
10
misconduct by using limited evidence for an improper purpose. ‘In the
absence of evidence to the contrary, the presumption [that the jury
adhered to the limiting instructions] will control.’” (People v. Zack
(1986) 184 Cal.App.3d 409, 416 (Zack).) Defendant has not identified
anything in the record to suggest that the jury disregarded the limiting
instructions, and we presume it did not do so.
2. Admission of Unredacted Video and Photographs of the Ardmore
Avenue Burglary Against Fiallos
Despite the prosecution’s use of the prior Ardmore Avenue
burglary against Fiallos only, and despite the court’s limiting
instruction that the jury could not consider evidence of the Ardmore
Avenue burglary against defendant, defendant contends that the
evidence was unduly prejudicial to him under Evidence Code section
352, and that the trial court erred in admitting it. The contention is
meritless.
A. Relevant Proceedings
During trial, and outside the presence of the jury, defense counsel
informed the court that the prosecution could soon introduce evidence
regarding a prior burglary involving Fiallos and an unknown male on
Ardmore Avenue in April 2018. Because the jury could infer that the
unknown male depicted in video surveillance was defendant, counsel
requested that the court limit the evidence to depict only Fiallos’s
presence and conduct. Despite the prosecutor’s statement that the
evidence would be used only against Fiallos, the court requested that
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the parties draft a stipulation that the People were not claiming the
individual was defendant.
On the next day of trial, the court excused the jury so that it could
hold an evidentiary hearing. Outside the presence of the jury, the
prosecutor called Officer Alberto Vazquez to testify about the Ardmore
Avenue burglary. Vazquez summarized video surveillance of the
footage as follows. A male and female approached the apartment
complex front door on bicycles. As the unknown male pried open the
front door with a screwdriver, the female, later identified as Fiallos,
stood behind and watched. After the unknown male opened the door, he
and Fiallos entered the lobby area where the male took a package
sitting atop a mailbox. During a subsequent interview with police,
Fiallos admitted she had taken a hammer from the Ardmore apartment
complex. Fiallos did not identify her male cohort.
Following Vazquez’s testimony, defense counsel again requested
that the court eliminate depictions of the unknown male. The
prosecutor replied that the unknown male’s participation during the
incident showed that he and Fiallos acted in concert, which was
relevant to its theory that Fiallos had acted in concert with defendant
and Perez during the Mariposa Avenue burglary. Nevertheless, the
prosecutor agreed to stipulate to a statement that the unknown male
depicted in the Ardmore Burglary was not defendant.
The court found the evidence to be admissible against Fiallos
under Evidence Code section 1101, subdivision (b) to show intent,
absence of mistake or accident, and a common plan or scheme.
Concerned about the potential prejudicial effect of the evidence against
12
defendant, the court proposed giving an oral instruction to the jury
before the introduction of evidence, and a written instruction for the
jury to use during deliberations.
The court proposed and defense counsel agreed to the following
oral instruction: “Today they are going to hear testimony as to an
address on Ardmore as this evidence is not offered as to either Mr.
Andrade or Mr. Perez. [¶] There is a male in a video and photograph.
[¶] . . . [¶] It is not alleged at this time that the male is Mr. Andrade.
[¶] For your purposes, it is an unknown male and can only be
considered in this context.” The court utilized the language “[i]t is not
alleged at this time that the male is Mr. Andrade” because the parties
informed the court that defendant could potentially be charged in the
future, as the investigation of the Ardmore Avenue burglary was
ongoing.
Prior to hearing testimony from Vazquez and the Ardmore Avenue
apartment complex property manager, the court instructed the jury
with the agreed upon limiting instruction.4 During witness testimony,
the prosecutor played the surveillance footage and showed still
photographs of Fiallos and the unknown male holding a screwdriver.
4 “Today you are about to hear testimony from a third location, this
location, I believe, is on Ardmore, A-R-D-M-O-R-E. This evidence is not
offered against Mr. Andrade nor is it offered against Mr. Perez. [¶] There is
a male in the video and photographs that I anticipate you will see, but it is
not alleged that the male is Mr. Perez. It is not alleged at this time that the
male is Mr. Andrade. [¶] For your purposes, this is an unknown male and
can only be considered in that context. As a result, it is apparent that this
evidence that the People intend to offer is against Ms. Fiallos alone.”
13
Prior to closing argument, the court provided the following written
instructions to the jury:
“During the trial certain evidence was admitted for a limited
purpose. You may consider that evidence only for that purpose and for
no other.
“I instructed you during the trial that certain evidence was
admitted only against certain defendants. You must not consider that
evidence against any other defendant. [¶] . . . [¶]
“The People presented evidence that defendant . . . Fiallos
committed the offense of burglary that was not charged in this case.
Specifically the People presented evidence . . . [of] South Ardmore
Avenue address as to Katherine Fiallos. You may consider this
evidence only if the People have proved by a preponderance of the
evidence that the individual defendant[] referenced above in fact
committed the uncharged offenses. [¶] . . . [¶]
“Testimony and exhibits were presented in regard to an incident
occurring on April 17, 2018, at 331 Ardmore in Los Angeles. . . . This
testimony and the exhibits were admitted for the limited purpose as the
court has instructed you. The evidence only relates to the case against
Katherine Fiallos. This evidence does not relate to the cases against
Kevin Andrade and does not relate to the case against Douglas Perez.
Only consider the evidence against Katherine Fiallos. When
14
considering your verdicts as to Kevin Andrade and Douglas Perez, do
not consider this evidence.”5
In his closing argument, the prosecutor referenced the Ardmore
Avenue burglary to argue that Fiallos had again acted as a lookout
during the Mariposa Avenue burglary: “And in the video that you saw,
defendant Fiallos rides up, takes a peek in before going out of view,
standing behind acting like as a lookout while the unknown male
approaches and pries the front door open with a screwdriver.”
B. Analysis
It is undisputed that evidence of the Ardmore Avenue incident
was admissible against Fiallos to establish her participation in a
common scheme as a lookout. Her role as lookout could not be
established without depicting who she was looking out for (i.e. the
unknown male). Because the evidence was admissible against Fiallos
for this limited purpose, the question is “whether the defendant was
properly protected from the danger of this evidence being misused by
the jury, and considered by them as proof of matters other than that for
proving which it was admitted.” (Adkins v. Brett (1920) 184 Cal. 252,
259.)
Absent any suggestion by the prosecution that the unknown male
was defendant, and considering the numerous limiting instructions, we
conclude that defendant was adequately insulated from the danger that
5 The court gave a nearly identical instruction regarding the limited
relevance of the Leeward Avenue burglary as against defendant only.
15
the jury would misuse the evidence against him. (See People v. Young
(2005) 34 Cal.4th 1149, 1202; Evid. Code, § 355.) As provided
throughout trial, the instructions clearly instructed the jury that it
could not consider the Ardmore Avenue burglary against defendant for
any purpose. Without any evidence that the jury ignored the
instructions to use the evidence for an improper purpose, we presume
the jury adhered to the limiting instructions. (Zack, supra, 184
Cal.App.3d at p. 416.)
We reject defendant’s argument that the court’s initial limiting
instruction (“[i]t is not alleged at this time that the male is
[defendant]”) was prejudicial because it suggested the prosecution was
more likely to allege in the future that the unknown male was
defendant. Defendant’s failure to object to the language, despite the
court’s inquiry to defense counsel whether he had any objection,
constituted a forfeiture of any challenge to the instruction. (See People
v. Chism (2014) 58 Cal.4th 1266, 1308.) Nevertheless, defendant’s
interpretation of the instruction, taken out of context, is unreasonably
technical and inconsistent with the instructions as a whole. (People v.
Lucas (2014) 60 Cal.4th 153, 282, disapproved on another ground by
People v. Romero and Self (2015) 62 Cal.4th 1, 53–54, fn. 19; People v.
Kainzrants (1996) 45 Cal.App.4th 1068, 1074.)
Even were we to conclude that the language of the instruction is
reasonably susceptible to defendant’s interpretation, defendant has not
established that it was reasonably probable a result more favorable to
him would have been reached in the absence of the error. (People v.
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Zunis (2005) 134 Cal.App.4th Supp. 1, 4; People v. Watson (1956) 46
Cal.2d 818, 836.) The case against defendant was strong without any
use of the Ardmore Avenue burglary. Wearing gloves, defendant pried
open the front door to the Mariposa Avenue apartment complex with a
screwdriver before he walked down to the garage and opened the door
for Fiallos. Defendant provided no reasonable explanation for why he
had walked through parked cars multiple times, the behavior that was
consistent with his previous participation in the Leeward Avenue
burglary. That he did not use the baton he had in his backpack to
break into a car does not mean that he did not previously harbor an
intent to do so. (See People v. Southard (2007) 152 Cal.App.4th 1079,
1090 [possession of items that qualify as burglary tools supports
inference defendant possessed felonious intent].) The jury could also
readily infer that defendant, who had previously been inside the
laundry room, not only intended but attempted to steal coins from the
laundry machine (the property manager noted that the coin slots had
been tampered with). Further, the jury’s deadlock on Fiallos’s guilt
suggests that it did not consider evidence of the Ardmore Avenue
burglary to be particularly powerful evidence. Thus, any error was
harmless.
3. Cumulative Error
As discussed, we either found no error with respect to any of
defendant’s claims, or that any error was harmless. There being no
error to accumulate, defendant’s assertion that cumulative error
17
resulted in an unfair trial necessarily fails. (People v. Valdez (2004) 32
Cal.4th 73, 139.)
4. Sufficiency of Evidence to Support the Burglary Conviction
Finally, defendant contends there is insufficient evidence to
support the finding that he intended to commit theft at the time he
entered the Mariposa Avenue apartment complex.
“‘When the sufficiency of the evidence to support a conviction is
challenged on appeal, we review the entire record in the light most
favorable to the judgment to determine whether it contains evidence
that is reasonable, credible, and of solid value from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.’
[Citation.]” (People v. Gomez (2018) 6 Cal.5th 243, 278 (Gomez).) We
presume in support of the judgment “‘“the existence of every fact the
jury could reasonably have deduced from the evidence.”’ [Citation.]”
(Ibid.) We do not resolve credibility issues or evidentiary conflicts; the
relevant inquiry is whether, in light of all the evidence, a reasonable
trier of fact could have found the defendant guilty beyond a reasonable
doubt. (Ibid.)
Burglary requires an unlawful entry into a building “with intent
to commit grand or petit larceny or any felony.” (§ 459; see § 460 [first-
degree burglary requires entry of an inhabited dwelling with requisite
intent].) The crime of burglary is complete upon entry with the
requisite intent “regardless of whether . . . any felony or theft actually is
committed.” (People v. Montoya (1994) 7 Cal.4th 1027, 1041–1042.)
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The existence of felonious intent is rarely shown by direct proof
and may be inferred from the facts and circumstances. (People v. Holt
(1997) 15 Cal.4th 619, 669; People v. Sanghera (2006) 139 Cal.App.4th
1567, 1574.)
As discussed, sufficient evidence supported defendant’s intent to
commit theft at the time he entered the Mariposa Avenue apartment
complex. Considering the evidence, the jury could readily infer that
that defendant broke into the apartment complex intending to steal
items from parked cars, or from coins inside the laundry machines.
(See People v. Taylor (2010) 48 Cal.4th 574, 627–628 [jury need not be
unanimous as to what offense defendant was intending to commit when
entering the premises].) Defendant interprets the facts in a manner
contrary to the jury’s verdict. That is not our role in this appeal; we do
not reweigh the evidence or reevaluate witness credibility, but review
the record in the light most favorable to the judgment. (Gomez, supra, 6
Cal.5th at p. 278.) Doing so here, we conclude sufficient evidence
supports the burglary conviction.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY J.
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