Opinion
F074581
08-26-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LOPEZ, Defendant and Appellant.
Caitlin M. Plummer and Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall, F. Matt Chen and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF314447)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Caitlin M. Plummer and Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall, F. Matt Chen and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
Before Smith, Acting P.J., Snauffer, J. and DeSantos, J.
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INTRODUCTION
Appellant Anthony Lopez stands convicted of petty theft with a prior, pursuant to Penal Code sections 484, subdivision (a) and 666, subdivision (a). The court found true a prior strike conviction, three prior prison terms, and five felony convictions within the meaning of section 1203, subdivision (e)(4). Lopez contends his conviction must be reversed because section 459.5 precludes alternate charging. Alternatively, he contends defense counsel rendered ineffective assistance by failing to object to the alternate charging.
All statutory references are to the Penal Code. --------
We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On February 12, 2015, Lopez and a female companion were inside a Walmart store. Lopez was observed placing a home stereo unit and several small items inside a Walmart bag in a shopping cart. Lopez did not pay for the items before exiting the store. Outside the store, an asset protection officer stopped Lopez; Lopez admitted he had not paid for the items. The value of the unpaid items was determined to be $496.37.
Lopez told police he had gone to Walmart to purchase a few items, but only had five dollars with him. Lopez claimed he had no intention of stealing anything prior to entering the store but formed the intent to steal once inside. He admitted placing items inside his cart and leaving the store without paying for them.
On March 12, 2015, a complaint was filed charging Lopez with shoplifting in violation of section 459.5. Because Lopez is a section 290 registrant, the count was charged as a felony. (§ 459.5, subd. (a).) In addition, the complaint alleged that Lopez had been convicted of multiple prior felonies and served prior prison terms.
At the September 17, 2015, preliminary hearing, the People commenced by stating, "we'll be looking for a bindover for PC 666 as well. 459.5 on the rap also supports PC 666." At the conclusion of testimony, the trial court stated:
"If you wanted to enter a plea, I'd be inclined to maybe put the sentencing over for a couple months so he can get his affairs in order, if he wants to take advantage of the two-year sentence.
"Otherwise, I'll bind it over on both counts and he's probably looking at three years with the prior prison commitment, possibly four given his prior record. Looks like he's been to prison a couple times."
At this point, there was a pause in the proceedings, after which defense counsel stated Lopez "would like to proceed with his case." The People then moved to hold Lopez to answer to the charge of shoplifting in the complaint, and the additional charge of petty theft with a prior. The trial court inquired if defense counsel had any response, and defense counsel replied, "Submitted." The trial court replied, "The Court will hold him to answer on both those charges with all the special allegations."
In an information filed on September 28, 2015, the People charged Lopez with felony shoplifting pursuant to section 459.5, subdivision (a) and petty theft with a prior pursuant to sections 484, subdivision (a) and 666, subdivision (a). The information also alleged Lopez had suffered a prior strike conviction; served three prior prison terms within the meaning of section 667.5, subdivision (b); and had five prior felony convictions within the meaning of section 1203, subdivision (e)(4).
Before trial, Lopez asked the trial court to exercise its authority pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to strike the prior strike allegation. The trial court heard and granted the motion on June 30, 2016.
A jury trial commenced on August 29, 2016. During closing argument, the People argued the facts showed Lopez had an intent to steal when he entered the Walmart store because he only "had $5 on him when he came to Wal-Mart, but then he also brought a [Walmart] plastic bag with him." The People argued that Lopez bringing a Walmart bag with him "seemed to indicate that he had decided previously to commit the theft."
The defense argued that the shoplifting charge was "a little more specific" than the petty theft charge because the People had to prove "what his intention was the moment he walked into the store."
After retiring to deliberate, the jury asked for a read back of testimony. The jury then asked a question, "Can we use the instructions from 1800 to determine the intent from the shoplifting charge? We just need clarification." The trial court discussed with both counsel the appropriate response to the question and provided a response to the jury.
A second question was asked by the jury, "[C]an we use the prior conviction we used to show the intent for shoplifting?" The trial court again discussed the appropriate response with both counsel and provided a response to the jury. A third question was received from the jury asking, "Does number 2 of 1700 mean prior intent or intent once he enters the store?" Again, the trial court discussed the response to be provided to the jury with both counsel.
On August 30, 2016, the jury indicated they had reached a verdict as to one count and were unable to reach a verdict on the other count. The jury returned a verdict of guilty on count 1, the charge of petty theft with a prior. No verdict was reached on the count 2 charge of shoplifting. The trial court declared a mistrial as to count 2 and the People dismissed count 2.
In a bifurcated court trial on the allegations, the trial court found all the remaining allegations true. The trial court imposed a total term of two years at the November 10, 2016, sentencing.
Lopez filed a timely notice of appeal on November 15, 2016. Our opinion filed on July 27, 2018, affirmed the judgment, concluding prosecutors retained the discretion to charge in the alternative after Proposition 47.
Lopez appealed to the Supreme Court, which in People v. Lopez (2020) 9 Cal.5th 254 (Lopez) vacated our opinion and remanded the case to this court, holding that section 459.5 precludes prosecutors from charging shoplifting and petty theft in the alternative, but does permit shoplifting to be charged in language that would encompass petty theft as a lesser included offense. Our Supreme Court did not address the issue of forfeiture or ineffective assistance of counsel.
After remand, both parties submitted supplemental briefs.
DISCUSSION
Lopez contends his conviction should be reversed because section 459.5, subdivision (b) prohibited the People from charging him with any offense other than shoplifting. He contends that if we conclude this issue is forfeited, defense counsel rendered ineffective assistance.
Forfeiture
The People amended the charges at the preliminary hearing to add the petty theft with a prior count, in addition to the shoplifting charge. There was no objection by Lopez. The People contend Lopez has forfeited any challenge to the filing of the amended information and the additional charge of petty theft with a prior. Generally, a defendant's failure to object to an amended information forfeits his right to assert the error on appeal. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057; People v. Carbonie (1975) 48 Cal.App.3d 679, 691; People v. Spencer (1972) 22 Cal.App.3d 786, 799-800; People v. Collins (1963) 217 Cal.App.2d 310, 313.)
In the case of People v. Goldman (2014) 225 Cal.App.4th 950, the defendant was charged with and convicted of discrete sexual offenses against his niece and one count of continuous sexual abuse. (Id. at p. 952.) On appeal, the defendant alleged he had been illegally convicted of a discrete sexual act that occurred during the same period of the continuous abuse, citing section 288.5, subdivision (c). (Id. at pp. 954-955.) The appellate court concluded the prosecutor was legally barred from charging both the discrete act and continuous abuse, but the issue was forfeited by failure to demur in the trial court. (Id. at p. 956.)
We conclude Lopez has forfeited this issue by failing to object or demur to the amended information in the trial court.
No Ineffective Assistance of Counsel
Because we conclude the issue is forfeited, we address the ineffective assistance of counsel claim. The standard of review when questioning whether a defendant received effective representation is well established. "In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. [Citation.] To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance ' " ' "fell below an objective standard of reasonableness ... under prevailing professional norms." ' " ' [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mickel (2016) 2 Cal.5th 181, 198.)
In Lopez, supra, 9 Cal.5th at p. 268, the Supreme Court held that section 459.5, subdivision (b) "unambiguously prohibits charging shoplifting and theft of the same property, even in the alternative." Consequently, for purposes of this discussion, we assume defense counsel's performance was deficient by failing to object or demur to the amendment charging shoplifting and theft in the alternative.
We now address whether Lopez suffered prejudice as a result of defense counsel's allegedly deficient performance and conclude he did not. To establish prejudice, Lopez must show that it is reasonably probable he would have received a more favorable result if not for defense counsel's deficient performance. (In re Hardy (2007) 41 Cal.4th 977, 1018.)
Had defense counsel objected or demurred, the prosecutor could have amended the information pursuant to sections 739 and 1009. The Supreme Court held that prosecutors could avoid the unintended consequence of potentially allowing a defendant to escape criminal liability for wrongdoing when the evidence is unclear on whether the offense committed was shoplifting or theft by "charging shoplifting such that petty theft is an uncharged lesser included offense under the accusatory pleading test." (Lopez, supra, 9 Cal.5th at pp. 269-273.) Under these circumstances, the trial court would have been obligated to instruct the jury on both offenses. (People v. Shockley (2013) 58 Cal.4th 400, 403.)
Therefore, even if an objection had been made in the trial court, the prosecutor likely would have amended the information to charge shoplifting in such a manner that petty theft would be a lesser included offense, and the jury would have been instructed on both charges. Consequently, Lopez cannot establish that he would have received a more favorable result and thus he has not established prejudice. (People v. Mickel, supra, 2 Cal.5th at p. 198.)
DISPOSITION
The judgment is affirmed.