Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF50476 Harold W. Hopp, Judge.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Maxine Cutler, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
A jury found appellant and defendant Daniel Jordan Lamonte guilty of petty theft (Pen. Code, § 484, count 2), and battery as to Juan Gonzalez. (§ 242, count 3.) The trial court imposed a sentence of 180 days in county jail on the petty theft conviction and a concurrent 180 days on the battery conviction.
All further statutory references will be to the Penal Code, unless otherwise noted.
The record reflects that, after filing the information, the court granted the prosecutor’s oral motion to amend the complaint to add count 3, battery (§ 242) and dismiss count 1, which charged defendant with robbery.
On appeal, defendant contends that: 1) the court erred in restricting his defense by prohibiting him from asking witnesses whether he ever stated that someone was going to pay for the liquor he took from the store; 2) there was insufficient evidence to support the petty theft conviction; and 3) the court erred in refusing to give instructions on attempted petty theft and self-defense. We affirm.
FACTUAL BACKGROUND
On April 8, 2005, Victor Rodriguez and Juan Gonzalez were managers at a Stater Brothers Market in Riverside. Both managers had the authority from Stater Brothers to stop a theft and retrieve the merchandise being stolen. At around 10:00 p.m., Rodriguez had just locked the south side exit doors when he noticed defendant, who was holding two bottles of liquor, unsuccessfully try to leave the store through those doors. Meanwhile, a courtesy clerk told Gonzalez that someone had attempted to walk out the door that was just locked. Rodriguez observed defendant walk by an open check stand and head toward the other exit doors. Defendant did not hesitate or attempt to pay for the liquor. Rodriguez waited for defendant to walk a little closer to the exit, and then confronted him. Rodriguez asked defendant if he was going to pay for the liquor bottles, and defendant said “no.” Defendant told Rodriguez to move out of his way. Rodriguez complied and let defendant take a few more steps toward the exit to see how far he would go. Rodriguez grabbed defendant from behind and held him in a bear hug. Defendant forcefully resisted and tried to escape. He did not hand the bottles over. A store security guard grabbed one of the bottles from defendant’s hand. Rodriguez held defendant, lifted him up off the ground, and “took him down.” Defendant continued to struggle and hold onto the other bottle. That bottle finally came out of his hands while he was fighting to get away from Rodriguez. Gonzalez called the police.
While waiting for the police to arrive, defendant told Rodriguez to let him go, since he (Rodriguez) already had the bottles back. Rodriguez would not let him go. Rodriguez went to the safe room, and Gonzalez stayed with defendant before the police came. Suddenly, defendant pushed Gonzalez out of the way in an attempt to leave the store. Other people came to assist Gonzalez in restraining defendant. Rodriguez grabbed defendant from behind to pull him back into the store. Defendant held onto a candy machine and knocked it over. Finally, Rodriguez subdued defendant.
Officer Molly Heffernan arrived and arrested defendant. She searched him and checked to see if he had a wallet. She discovered that defendant was 19 years old, and that he had no currency in his wallet. At trial, Officer Heffernan testified. The prosecutor asked the officer if, while she was at the scene of the crime, anyone came in to the store to tell her that he or she was defendant’s friend, and he or she was going to pay for the liquor. Officer Heffernan said, “No.”
At trial, Rodriguez testified and confirmed that the store policy with regard to shoplifters required managers to wait until the suspect exits the store before contacting him. However, in this case, Rodriguez deviated from the policy because he knew defendant was going to walk out of the store without paying for the liquor. Rodriguez had just asked defendant if he was going to pay, and defendant said “no.”
Stater Brothers had surveillance cameras in the store that took videos of defendant on the night of the incident. A security video was played for the jury at trial. The video showed defendant walk to the liquor department of the store, take two bottles, and walk past the cash registers toward the exit doors. A video taken by a security camera near the exit showed defendant and Gonzalez struggling.
ANALYSIS
I. The Trial Court Properly Prohibited Defense Counsel From Asking Witnesses If Defendant Told Them Someone Else Was Going to Pay for the Liquor
Defendant argues that the court violated his constitutional rights to a fair trial and to present a defense when it ruled that defense counsel could not ask any witness whether defendant stated that someone else was going to come and pay for the liquor. We conclude that the court properly limited defense counsel’s questions, and that defendant was not prejudiced.
A. Background
During pretrial discussions, the prosecutor informed the court that both Gonzalez and Rodriguez said defendant did not tell them his friend was going to come to the store to pay for the liquor. The prosecutor asked the court to bar the defense from asking Gonzalez or Rodriguez if defendant made any such comment to them. The prosecutor added that the only person to whom defendant made that comment was the police officer. The prosecutor was concerned that a leading question on the subject would place before the jury the “illusion” of a defense that defendant believed someone else was going to pay for the liquor. Defense counsel thought it would be premature to make a ruling in advance. The court asked defense counsel not to ask any leading questions on this topic. Defense counsel agreed.
During the direct examination of Officer Heffernan, the prosecutor asked her if, while she was at the crime scene, anyone came in to the store to say he or she was defendant’s friend and he or she was going to pay for the liquor. She said, “No.”
Next, during the direct examination of Rodriguez, the prosecutor asked him if defendant ever said to him, “hold on, hold on, sir, my friend is coming to pay for this.” Rodriguez said, “No.”
Later on in the trial, during the cross-examination of Gonzalez, defense counsel asked for a sidebar to clarify the court’s previous instruction. The court reiterated that defense counsel could not ask any leading questions about defendant saying someone was coming to pay for the liquor. Defense counsel asked if he could say, “Isn’t it true that [defendant] said someone else is going to come in and pay?” The court responded that that was a leading question, and the court expressed its concern that such question would suggest to the jury that defendant did in fact make that statement. Furthermore, the court did not want defense counsel to ask a leading question without any basis for thinking the witness would say yes. Defense counsel said he felt he was being prevented from performing his cross-examination by not being allowed to ask leading questions. Defense counsel proffered as a basis for the question his belief that during one point in the security video, defendant pointed to the outside of the store and told Rodriguez that his friend was going to pay for the liquor. The court ruled that defense counsel could not ask a question suggesting that defendant said someone else was coming to pay for the liquor but was free to ask the prosecution witnesses if defendant said “anything else.” Despite the ruling, defense counsel continued his cross-examination of Gonzalez and asked him if defendant looked out the store window and told him that the person outside was going to come in and pay for the liquor. Gonzalez said, “No.” Gonzalez testified that defendant only said his girlfriend was outside waiting for him.
During the redirect examination, the prosecutor asked Gonzalez if anyone ever came into the store on behalf of defendant, during the incident, to offer to pay for the merchandise. Gonzalez said, “No.”
B. The Court Properly Excluded Defense Counsel’s Question
“[A] trial court retains broad discretion over the conduct of trial. In the context of its duty to supervise the questioning of trial witnesses, it has wide discretion to limit questions that are marginally relevant and cumulative.” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.) In other words, the court can impose reasonable limits on cross-examination based on concerns about interrogation that is repetitive. (Ibid.)
Here, the trial court properly excluded the leading cross-examination question to the effect of “Isn’t it true that [defendant] said that someone else was going to come in and pay?” As pointed out by the People, defendant’s only basis for asking this question was defense counsel’s conjecture about what defendant said to Gonzalez during the part of the security video that showed him pointing outside the store window. However, Gonzalez testified that, during that portion of the video, defendant looked outside and said that his girlfriend was waiting outside for him. Moreover, defendant was not prejudiced by the court’s decision to prohibit the question. Despite the court’s ruling to the contrary, defense counsel went ahead and asked Gonzalez on cross-examination if defendant looked out the store window and told him that the person outside was going to come in and pay for the liquor. Gonzalez said, “No.” Thus, not only did defense counsel ask the question that the court had just barred, but the answer to the question was “no.”
In his reply brief, defendant claims that the People incorrectly argue the only basis for asking the question was defense counsel’s conjecture about what defendant said to Rodriguez during the portion of the security video showing him pointing outside the store. Defendant then asserts in his reply brief that the basis offered in his opening brief was that the prosecutor informed the court that “[t]he only person he made those comments to were [sic] the police officer.” Regardless of the basis offered by defendant in his opening brief, the record clearly shows that the only basis proffered at trial was defense counsel’s belief that defendant told Rodriguez that his friend was outside and was going to pay for the liquor. Moreover, Rodriguez testified on direct examination that defendant never said to him that his friend was coming to pay for the liquor. Similarly, Officer Heffernan and Gonzalez testified on direct examination that no one ever came into the store on behalf of defendant, during the incident, to offer to pay for the merchandise.
Defendant specifically complains that defense counsel was never allowed to ask Officer Heffernan the question at issue on cross-examination. He argues that he should have been allowed to ask the question, since the prosecutor mentioned to the court that the only person to whom defendant made the comment at issue was Officer Heffernan. However, the “isn’t it a fact” method of questioning would have been improper here because the question was apparently being employed for the purpose of bringing to the jury’s attention a matter that was not in evidence. (See Love v. Wolf (1964) 226 Cal.App.2d 378, 390-391.) Despite defendant’s claim to the contrary, the prosecutor’s representation to the court that defendant told Officer Heffernan someone else was coming to pay for the liquor was not evidence.
Thus, the court did not abuse its discretion in limiting defense counsel’s cross-examination, since there was no evidence to believe someone else was coming to pay for the liquor, and further questioning on the issue would have been repetitive.
II. There Was Sufficient Evidence to Support the Petty Theft Conviction
Defendant contends that there was insufficient evidence that he intended to deprive Stater Brothers of its property, and that he took the property without the owner’s agent’s consent. We disagree.
A. Standard of Review
“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) The same standard of review applies in cases where the People rely primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) “‘Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [Citations.]’ [Citation] A jury may infer a defendant’s specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors. [Citation.] . . . When the evidence is sufficient to justify a reasonable inference that the requisite intent existed, the jury’s finding of that intent will not be disturbed on appeal. [Citation.]” (People v. Ferrell (1990) 218 Cal.App.3d 828, 834.)
B. The Evidence Was Sufficient
“The elements of theft by larceny are: (1) the defendant took possession of personal property owned by someone else; (2) the defendant did so without the owner’s consent; (3) when the defendant took the property, he or she intended to deprive the owner of it permanently; and (4) the defendant moved the property, even a small distance, and kept it for any period of time, however brief. [Citations.]” (People v. Catley (2007) 148 Cal.App.4th 500, 505.) Thus, “one need not remove property from the store to be convicted of theft of the property from the store. [Citations.] One need only take possession of the property, detaching it from the store shelves or other location, and move it slightly with the intent to deprive the owner of it permanently. [Citation.]” (People v. Shannon (1998) 66 Cal.App.4th 649, 654 (Shannon).)
The evidence here showed that defendant took two bottles of liquor from the Stater Brothers liquor department, walked through the store toward the locked exit, and then toward the unlocked exit, passing the cash registers without stopping to pay for the items. Defendant told Rodriguez that he was not going to pay for the liquor and told him to move out of his way. Defendant then took a few more steps toward the store exit before Rodriguez restrained him. Defendant forcefully resisted and tried to escape, while he was still holding the bottles. Defendant had no money in his wallet.
Viewing this evidence in the light most favorable to the judgment, as we must, we conclude that there was more than enough evidence to support defendant’s petty theft conviction.
III. The Court Properly Refused to Instruct the Jury on Self-defense and Attempted Petty Theft
Defendant argues that the court violated his constitutional rights to due process and a fair trial in refusing to instruct the jury on self-defense and attempted petty theft. We find no error.
A. Defendant’s Request for a Self-defense Instruction
Defendant requested an instruction on self-defense. The prosecutor objected and explained that while defendant was sitting and waiting for the police to arrive, no one was bothering him; then, defendant got up and “rush[ed]” Gonzalez. (This conduct was the basis for defendant’s battery conviction.) Gonzalez fought with defendant to try to get him to sit down. Defense counsel simply argued that defendant was acting in self-defense because he was trying to exit the store, and Gonzalez was preventing him from doing so. The court asked how self-defense related to these facts, since defendant was trying to escape. Defense counsel agreed that defendant was not permitted to get away. The court then asked defense counsel if there was any evidence to support a finding that defendant reasonably believed that he was in imminent danger or of being touched unlawfully, at the time he had contact with Gonzalez. Defense counsel said no. The court refused to give the self-defense instruction.
B. Defendant Was Not Entitled to a Self-defense Instruction
On appeal, defendant contends that Rodriguez acted in excess of any legal authority when he assaulted him and threw him to the ground. As such, he argues that he was “legally justified in resisting his illegal assaults.” Defendant concludes that the court should have instructed the jury on self-defense, since it was up to the jury to decide whether he had been subjected to an unlawful detention and was therefore entitled to resist it. He further reasons that if the citizen’s arrest and detention were illegal, then any force later used by Gonzalez to keep him detained was also unlawful. He thus asserts that it was up to the jury to decide whether he had a right to self-defense when he was waiting for the police to arrive, and Gonzalez “interfered with [defendant’s] right to leave.” In support of this convoluted claim, he asserts that: 1) neither Rodriguez nor Gonzalez identified themselves as store employees; 2) Rodriguez did not make a proper citizen’s arrest because it was not reasonable for him to assume defendant was engaged in the commission of an offense, since he was in an area of the store where customers were allowed to roam freely before paying; and 3) even if the citizen’s arrest was valid, Rodriguez had no authority to assault him and throw him to the ground.
At the outset, we note that defendant did not previously request a self-defense instruction with regard to when Rodriguez detained him. Rather, he requested the court to instruct on self-defense with regard to when he tried to escape from the store, while waiting for the police to arrive, and Gonzalez tried to stop him. Thus, defendant’s claim that the court erred in refusing this request is groundless, since he never requested such instruction.
In any event, defendant’s claim is meritless. A private person may arrest another “for a public offense committed or attempted in his presence.” (§ 837, subd. (1).) In other words, “A citizen may arrest another if a felony has in fact been committed and he has reasonable cause to believe that the person to be arrested committed it. [Citation.]” (People v. Fosselman (1983) 33 Cal.3d 572, 579 (Fosselman).) A private person making such arrest is not required to advise the offender of his intention to arrest him when “the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, . . .” (§ 841.) Furthermore, “there is no right to ‘defend’ against a valid arrest. [Citation]” (Fosselman, supra, at p. 579.) Here, defendant committed an offense in Rodriguez’s presence by attempting to leave the store without paying for the two bottles of liquor he was holding. As discussed above, there was sufficient evidence to show that defendant committed a petty theft. (See ante, § II.) Thus, when Rodriguez restrained defendant by “bearhugging” him from behind, it was defendant’s duty not to resist. (Fosselman, supra, at p. 579; People v. Score (1941) 48 Cal.App.2d at 495, 498.) Instead, defendant forcefully resisted. Gonzalez was entitled to use reasonable force to detain defendant (§ 835), and the jury inferentially found that Gonzalez’s method of “bearhugging” him, picking him up, and forcing him to the ground was reasonable under the circumstances. (See Fosselman, supra, at p. 579.) Thus, it appears on these facts that the jury would have rejected defendant’s claim of self-defense.
Consequently, defendant’s related claim that he had a right to self-defense against Gonzalez, who later stopped him from leaving while waiting for the police, is also meritless. Moreover, defendant was the aggressor, since he pushed Gonzalez out of the way in an attempt to leave the store. There was no self-defense involved.
C. Defendant Was Not Entitled to an Instruction on the Lesser Included Offense of Attempted Petty Theft
Defendant finally argues that the court’s failure to give an instruction on attempted petty theft removed from the jury’s consideration the factual determination of whether he had completed the theft. The court previously rejected the same argument. We agree with the trial court.
“‘The trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.’ [Citation.]” (People v. Hardy (1992) 2 Cal.4th 86, 184 (Hardy).)
Here, defendant was charged by information with robbery in count 2. The court instructed the jury on the elements of robbery, as well as on the elements of theft, a lesser included offense of robbery. (The jury found defendant guilty of the lesser included offense.) Defense counsel requested an instruction on attempted petty theft, a lesser included offense of petty theft, arguing that defendant did not complete the theft since he did not exit the store. The court properly rejected defendant’s request, since there was sufficient evidence that all of the elements of the petty theft were present. (See ante, § II.) Contrary to defendant’s claim, the completed crime of theft does not require the removal of the property from the store. The perpetrator only needs to take possession of the property “and move it slightly with the intent to deprive the owner of it permanently. [Citation.]” (Shannon, supra, 66 Cal.App.4th at p. 654; People v. Khoury (1980) 108 Cal.App.3d Supp. 1, 4.)
Defendant further argues that he was entitled to an instruction on attempted petty theft because it was the policy of Stater Brothers that suspected shoplifters should not be apprehended until they left the store. He contends that because Rodriguez apprehended him in an area of the store where customers were allowed to possess merchandise without yet paying, the element of his intent to deprive was not met. At trial, Rodriguez confirmed that the store policy required managers to wait until a shoplifting suspect exited the store before contacting him. However, he explained that he deviated from the policy because he knew defendant was going to walk out of the store without paying for the liquor. Rodriguez had just asked defendant if he was going to pay, and defendant said, “No.” Moreover, defendant had just tried to exit the store with the liquor bottles, but the exit was locked, and he was heading toward an unlocked exit when Rodriguez apprehended him. There was more than enough evidence of his intent to deprive.
Therefore, the court properly refused to instruct the jury on the lesser included offense of attempted petty theft, since there was no question as to whether all of the elements of theft were present, and there was no evidence that would justify a conviction of attempted petty theft. (Hardy, supra, 2 Cal.4th at p. 184.)
DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., MILLER J.