P. v. Resto

Filed 11/27/06 P. v. Resto CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for
publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H028483
Plaintiff and Respondent, (Monterey County
Superior Court
v. No. SS042365A)
LUIS ANTHONY RESTO,
Defendant and Appellant.
_____________________________________/
Defendant was convicted by jury trial of carrying a concealed firearm on his
person (Pen. Code, § 12025, subd. (a)(2)), carrying a loaded unregistered firearm (Pen.
Code, § 12031, subd. (a)(1)) and commercial burglary (Pen. Code, § 459). The court
found true a prior serious felony (Pen. Code, § 1170.12) allegation, and it committed
defendant to state prison for a six-year term. On appeal, defendant challenges the
sufficiency of the evidence to support the burglary count, and he claims that the trial
court violated his constitutional rights in imposing an upper term for the carrying a
concealed firearm count. We reject his contentions and affirm the judgment.

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I. Evidence At Trial
On August 30, 2004, at about 1:00 a.m., Genaro Estrada, the night crew
manager of Food 4 Less, was working stocking the shelves of the store. There were
six or seven other employees in the store. The store was not busy at that time, so all of
the employees were working stocking the shelves. Estrada saw defendant approach
the chips section. There was an “emergency door” next to the chips section.
Defendant picked up some chips and walked toward the checkstand. As he did so,
defendant “kept looking at” Estrada.
About two minutes later, Estrada saw defendant by the newspapers with a
group of four to seven guys walking “right behind him.” Defendant walked toward the
candy section with the group of guys following three or four steps behind him.
Defendant stopped at the candy section, and he “was looking all around.” Defendant
looked at Estrada, who was about ten steps away from defendant, and he also looked at
the emergency door by the chips section. The group of guys who had been following
defendant proceeded toward the beer section, which was out of Estrada’s sight, about
40 feet away.
Six or seven seconds later, the alarm on the emergency door near the beer
section went off. Estrada ran toward that emergency door because he knew from
experience that sometimes people would grab beer and run out the emergency door.
Innocente Ybarra, the store’s security guard, and three other store employees, Danny
Sanchez, Luis Herrera and Jose Casares, also ran to that emergency door. Ybarra saw
two men leaving the store with a six-pack of beer. The store employees followed the
men out the door and saw a light brown truck “pulling out” as the guys who had been
behind defendant were “trying to get on the truck.” One of the guys dropped a bottle
of tequila, and then the guys got into the truck, and the truck drove away. The five
store employees walked around the store to the front door and reentered the store.

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Between one and five minutes had passed since the alarm had gone off.
Defendant was at the checkstand buying candy and chips. He paid with exact change.
Estrada told Ybarra that defendant had been with the guys who had stolen the beer,
and Ybarra detained defendant. Defendant was compliant. Ybarra asked defendant if
he had been with the men who had taken the beer, and defendant admitted that he had
been with them. Defendant also told Ybarra that he “was buying his items and that he
had a receipt for it” and “why would he be with them if he was shopping.” Defendant
denied stealing anything. Defendant sat for a while. Then he stood up, looked around,
took a gun out from under his clothing and put the gun in a garbage bag. A few
minutes later, Sanchez told Ybarra that he had seen defendant place a gun in a bag, and
Ybarra handcuffed defendant.
About two minutes after he was handcuffed, defendant ran out the front door of
the store. Estrada and the other four employees pursued defendant. They caught him
about a block away, and they brought him back to the store. By that time, the police
had arrived. A police officer arrested defendant and searched him. The officer found
a police scanner in defendant’s back pocket and a cell phone. A wire was running
from the scanner under defendant’s clothing up to an earpiece. The scanner was
turned on and tuned to the police department’s “primary channel.” The gun that
defendant had discarded was recovered, and it proved to be a loaded .22 caliber pistol.
Defendant was not the registered owner of the pistol.
II. Procedural Background
Defendant was charged by information with carrying a concealed firearm on his
person (Pen. Code, § 12025, subd. (a)(2)), carrying a loaded firearm (Pen. Code,
§ 12031, subd. (a)(1)) and commercial burglary (Pen. Code, § 459), and it was
specially alleged that defendant was not the registered owner of the firearm (Pen.
Code, § 12025, subd. (b)(6), 12031, subd. (a)(2)(F)). The information further alleged

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that defendant had suffered a prior serious felony juvenile adjudication within the
meaning of Penal Code section 1170.12. The prior serious felony allegation was
bifurcated, and defendant waived his right to a jury trial on that allegation.
The jury deliberated for more than a day. It found defendant guilty of all three
counts and found true the special firearm allegations. The court found the prior
serious felony allegation true. Defendant was committed to state prison to serve
concurrent doubled upper terms of six years. He filed a timely notice of appeal.
III. Discussion
A. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence to support the burglary
conviction.
“The crime of burglary consists of an act—unlawful entry—accompanied by
the ‘intent to commit grand or petit larceny or any felony.’ (§ 459.) One may be liable
for burglary upon entry with the requisite intent to commit a felony or a theft (whether
felony or misdemeanor), regardless of whether the felony or theft committed is
different from that contemplated at the time of entry, or whether any felony or theft
actually is committed.” (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042.)
Here, the theory at trial was not that defendant intended to perpetrate a theft
himself but that he aided and abetted his compatriots. Liability as an aider and abettor
requires “proof that [the] aider and abettor act[ed] with knowledge of the criminal
purpose of the perpetrator and with an intent or purpose either of committing, or of
encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35
Cal.3d 547, 560.) Where the underlying offense is a specific intent crime, as burglary
is, the aider and abettor must “share” the perpetrator’s intent. (Beeman, at p. 560.)
“[A]n aider and abettor will ‘share’ the perpetrator’s specific intent when he or she
knows the full extent of the perpetrator’s criminal purpose and gives aid or

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encouragement with the intent or purpose of facilitating the perpetrator’s commission
of the crime.” (Beeman, at p. 560.) Such intent “is rarely susceptible of direct proof
and must usually be inferred from all of the facts and circumstances disclosed by the
evidence.” (People v. Holt (1997) 15 Cal.4th 619, 669, internal quotation marks
omitted.)
“‘[T]he relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” (People v. Johnson
(1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319,
emphasis in original.) “[The] appellate court must view the evidence in the light most
favorable to respondent and presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3
Cal.3d 421, 425; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) “[W]e
must review the entire record, and drawing all reasonable inferences in favor of [the
judgment], . . . determine whether a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. [Citations.] [¶] Reversal on this
ground is unwarranted unless it appears that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].” (People v. Manriquez
(2005) 37 Cal.4th 547, 576-577, internal quotation marks omitted.)
At 1:00 a.m., defendant entered a store carrying both a loaded pistol and a
police scanner concealed under his clothing. The scanner was hooked up to a wire that
ran up to an earpiece and was tuned to the local police department’s “primary
channel.” His possession of the gun and scanner was indicative of an intent to engage
in criminal activity. Defendant repeatedly looked at the store employee nearest one of
the emergency doors. He first grabbed a package of chips and made it appear as if he
was headed for the checkstand. However, he subsequently reappeared at the head of a
group of men walking across the store. Defendant’s apparent surveillance activity and

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misdirection suggested that he was about to engage in criminal activity within the
store.
Defendant then positioned himself near the same store employee he had been
watching, looked at the store employee again, looked at an emergency door and
scanned the entire area. This conduct suggested that defendant was acting as a
lookout. Meanwhile, the group of young men who had been following defendant
proceeded to the back of the store where they stole alcohol and ran out a rear
emergency door. Defendant admitted that he had been with the group of men who
perpetrated the theft. The fact that defendant surveilled one emergency door that was
near a store employee and then maintained a lookout while other members of his group
perpetrated a theft and escaped through an emergency door reflected that defendant
was well aware of the group’s intent to steal, shared that intent and was acting to
facilitate the theft.
The reasonable inferences that a rational trier of fact could draw from this
evidence clearly include the hypothesis that defendant was the advance man for the
group of men who entered the store and perpetrated the theft. All of his activity was
consistent with knowledge of the group’s intent to steal and of his intent to aid and
encourage them in doing so. His possession of a gun and police scanner strongly
corroborated his intent. Substantial evidence supports the burglary conviction.
B. Sentencing
Defendant claims that the trial court violated his federal constitutional rights in
sentencing him to an upper term for the carrying a concealed firearm count.
The prosecution made an in limine motion requesting that the jury be asked to
make findings on aggravating circumstances. Defendant objected to any aggravating
circumstances being presented to the jury for findings. The court denied the
prosecution’s request.

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At the sentencing hearing, the prosecution argued that the offenses were
aggravated. Defendant’s trial counsel argued that the prosecution was precluded from
seeking aggravated terms because the court had rejected the prosecution’s request to
place aggravating circumstances before the jury. The court responded: “There are a
number of issues surrounding sentencing and how Blakely versus Washington may
apply. [¶] The Court will not be taking into consideration, out of abundance of
caution, any factors in aggravation except for those that the Court feels are specifically
excluded by the Apprendi decision, and [the] Court is talking about Apprendi versus
New Jersey, 530 U.S. 466, and also mentioned in Blakely versus Washington at 124
Supreme Court 2531. And those deal with prior convictions. But any of the other
aggravation factors will not be considered by the Court.”
Defendant’s trial counsel then argued that the court should not utilize
defendant’s prior felony both as an aggravating factor and to double his term because
the prior had occurred when defendant was “barely 16” and he had been doing well on
parole.
The court rejected defendant’s argument. It imposed a doubled upper term of
six years for the carrying a concealed firearm count. It found “one factor in
aggravation . . . and that is that the defendant was on misdemeanor probation and CYA
parole at the time that the crime was committed.”1
Defendant acknowledges that his challenge to the upper term sentence imposed
for the carrying a concealed firearm count is foreclosed by both People v. Black (2005)
35 Cal.4th 1238 [imposition of upper term without jury finding on aggravating
1 The court selected a concurrent doubled upper term of six years for the burglary
count. The court stated no reason for imposing this upper term, and defendant does
not challenge this term on any ground. A doubled midterm of four years was imposed
for the carrying a loaded firearm count, but the court stayed this term under Penal
Code section 654.

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circumstances does not violate federal constitution] and Almendarez-Torres v. United
States (1998) 523 U.S. 224 [prior conviction allegations are sentencing factors for
court findings, not jury findings]. He “raises this argument for federal court review,
and in the hopes that the U.S. Supreme Court will overrule both cases.” Since Black
and Almandarez-Torres have not been overruled by the U.S. Supreme Court and we
are bound by them (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455), we must reject his challenge.
IV. Disposition
The judgment is affirmed.
_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Rushing, P.J.
_____________________________
Elia, J.

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