Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA304430. Anne H. Egerton, Judge.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Victor Jackson appeals from the judgment entered following a jury trial that resulted in his conviction of one count of petty theft with a prior prison term for an earlier theft-related conviction. (Pen. Code, § 666.) He contends that the prosecution did not offer sufficient evidence to prove that he specifically intended to deprive the victim of his property permanently, and that the record shows sufficient evidence to prove a necessity defense as to the alleged theft. We affirm the judgment.
All undesignated statutory references are to the Penal Code.
BACKGROUND
On the morning of April 16, 2006, Brandon Weil was driving home from a shopping trip when he saw Jackson sitting on a sidewalk in his neighborhood, smoking a cigarette. Weil thought he recognized Jackson as the person he had seen two months earlier rummaging through a car parked in the neighborhood that had been broken into. Weil enlisted a neighbor’s help, and they returned to Jackson’s location in Weil’s full-size pickup truck. Weil, still in the truck, said, “It’s you again,” and told Jackson to stay where he was and wait for the police to arrive.
Instead, Jackson began to walk down the street toward Sunset Boulevard. Weil and his neighbor called the police and followed Jackson in Weil’s truck, though they exchanged no further words with Jackson. Jackson walked to Sunset, then boarded a bus. Weil followed the bus in his truck. Near Echo Park Boulevard, Jackson got off the bus, hopped over a little wall, ran through the parking lot, and entered a Walgreen’s drug store. Weil stopped his truck at the store’s front entrance. A man came out and told them that he had seen Jackson run in the front entrance and run out the back entrance. Weil, still in his truck, sighted Jackson and followed him again. Jackson ran up a residential street, jumped the fence between two properties, then doubled back toward Sunset on a different street. Weil continued to follow Jackson, saw him walk up a driveway, then come back out riding a child’s bicycle.
Weil made a U-turn, followed Jackson back toward the Walgreen’s parking lot, and attempted to flag down police officers. Shortly thereafter, an unidentified individual knocked Jackson off the bicycle. The police found Jackson walking along Sunset, stopped him, and detained him. An unidentified onlooker brought the bicycle to the police, and Weil guided them to the owner’s home, where the police returned the bicycle to him. The owner had not given Jackson permission to take the bicycle, worth $200.
The Los Angeles County District Attorney filed an information charging Jackson with violating section 666, petty theft with a prior conviction of a theft-related offense for which he served a prison term. At a jury trial, in addition to various other standard trial instructions and an instruction regarding petty theft by larceny (CALCRIM No. 1800), the trial court instructed the jury on CALCRIM No. 3403 regarding the necessity defense. Jackson did not testify. The jury found Jackson guilty of the petty theft, and he admitted the prior prison term conviction. The court sentenced Jackson to the middle term of two years in prison, awarded him credit for 255 days in actual custody and good time/work time served, and required him to pay various court fines. (§§ 1202.4, subd. (b), 1202.5, 1202.45, and 1465.8, subd. (a)(1).) Jackson timely appealed.
DISCUSSION
Jackson contends that there is insufficient evidence to prove that he intended to permanently deprive the bicycle owner of his property. We disagree.
CALCRIM No. 1800, on which the trial court instructed the jury, provides that in order to convict a defendant of petty theft by larceny, the prosecutor must prove that the defendant took possession of the property of another without the owner’s consent, moved the property even a small distance and kept it even a short period of time, and that “[w]hen the defendant took the property he intended to deprive the owner of it permanently or to remove it from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property[.]” If a defendant takes property with the intent to use it temporarily and then abandon it in circumstances making it unlikely the owner will recover it, then specific intent to permanently deprive the owner is sufficiently established. (People v. Avery (2002) 27 Cal.4th 49, 56.)
“‘[I]ntent is inherently difficult to prove by direct evidence. Therefore, the act itself, together with its surrounding circumstances must generally form the basis from which the intent of the actor may legitimately be inferred.’” (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.) Thus, the specific intent with which an act is performed is a question of fact that we review for substantial evidence. (See In re Albert A. (1996) 47 Cal.App.4th 1004, 1008.) We must “examine the whole record in the light most favorable to the judgment to determine whether it discloses . . . evidence that is reasonable, credible and of solid value . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (See ibid.) The same standard applies whether the conviction rests primarily on direct or circumstantial evidence. (See id. at p. 1503.)
Here the evidence supports a reasonable inference that when Jackson took the bicycle, he either intended to deprive the owner of the bicycle permanently or to use it and then abandon it regardless of whether the owner ever got it back. That Jackson ultimately abandoned the bicycle relatively close to where he found it, and in the presence of onlookers who knew where to return it, is a coincidence that does not defeat either of these inferences. Thus, substantial evidence supports the jury’s finding that Jackson had the specific intent to deprive the owner of the bicycle permanently when he took it.
Jackson also contends that because he was being relentlessly pursued by Weil, sufficient evidence supports a finding that he took the bicycle out of necessity to flee his pursuers. Again, we disagree.
The trial court instructed the jury on necessity with CALCRIM No. 3403, which states that a defendant is not guilty if he proves by a preponderance of the evidence that “1. He acted in an emergency to prevent a significant bodily harm or evil to himself; [¶] 2. He had no adequate legal alternative; [¶] 3. The defendant’s acts did not create a greater danger than the one he avoided; [¶] 4. When the defendant acted, he actually believed that the act was necessary to prevent the threatened harm or evil; [¶] 5. A reasonable person would also have believed that the act was necessary under the circumstances; [¶] AND [¶] 6. The defendant did not substantially contribute to the emergency.” Necessity is an affirmative defense (People v. Kearns (1997) 55 Cal.App.4th 1128, 1134), and a defendant bears the burden of proof as to all elements of an affirmative defense (see People v. Salas (2006) 37 Cal.4th 967, 971).
Here the jury reasonably could have rejected every required element of the defense. For example, the evidence permitted an inference that Jackson was not in fear of Weil or his passenger inflicting any harm or evil, let alone significant bodily harm or evil, on him. Weil told Jackson to wait for the police to arrive, and although he followed him in his truck, neither Weil nor his passenger ever exited the truck or threatened Jackson with any physical harm. Likewise, the jury reasonably could reject that Jackson had no other reasonable legal alternative to protect himself. The evidence showed that he had the opportunity to enlist police help while remaining in the safety of the bus or the Walgreen’s store. Instead he exited the bus, ran through the store, trespassed on private residential property, and absconded with a child’s bicycle.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P.J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)