Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1238414, Donald E. Shaver, Judge.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
After stealing a pair of sunglasses from a mall kiosk, defendant Jeffrey Young Norman was convicted of petty theft with a prior. On appeal, he contends (1) the trial court erred by admitting evidence of his prior criminal acts, (2) the trial court erred by failing to instruct the jury to view admissions with caution, and (3) the trial court miscalculated his custody credits. We will modify the judgment by awarding one additional day of custody credit, and affirm the judgment as modified.
PROCEDURAL SUMMARY
On March 5, 2008, the Stanislaus County District Attorney charged defendant with one count of petty theft with a prior (Pen. Code, § 666). The information further alleged that defendant had served four prior prison terms.
All statutory references are to the Penal Code unless otherwise noted.
A jury found defendant guilty as charged, and the trial court found the prison term allegations true. The trial court sentenced defendant to six years in prison, with 374 days’ custody credit.
FACTS
On December 13, 2007, Cindy was working at the Hallmark Store in the mall. The shop was very busy because of the holiday season. There were three employees working and it was difficult to watch every customer in the store. The employees kept their personal belongings in the back office, which was unlocked.
At some point during Cindy’s shift, she received a call from her credit card company, asking if she was making a purchase at Lundstrom Jewelers. She said she was not. She looked in her purse and saw that her Discover Card was gone. Some of her checks were missing too.
Maria worked at Lundstrom Jewelers in the same mall. Her store was also very busy that night. She and her manager, Denise, were working in the store. At about 9:00 p.m., defendant and Gia Stanley came into the store. Stanley wanted to buy some gold earrings. She stood at the counter and defendant sat right next to her. She was trying on earrings and defendant was telling her what looked good on her. When Stanley handed Maria a Discover Card, defendant kept talking to Maria, asking her where she was from and what languages she spoke. Maria was suspicious because Stanley seemed nervous and defendant appeared to be trying to distract Maria. Maria suspected that the credit card did not belong to Stanley. Maria asked Stanley for identification, which she did not have. Maria went to the back of the store, wrote down the credit card number and asked Denise to call the credit card company. Maria told Denise that she was a little uncomfortable with a customer she was helping.
Denise called the credit card company while Maria returned to Stanley and told her she could not accept the card without identification. Stanley explained that she must have left her wallet somewhere. Defendant said he would go back to Radio Shack, the last place they had been. While he was gone, Maria offered to clean one of Stanley’s rings. Defendant returned 10 or 15 minutes later and said the wallet was not at Radio Shack. He said he was going to JC Penney to look there and he left again. Maria returned the Discover Card to Stanley and told her she could not complete the sale without identification. Stanley left in another direction. She returned briefly and said she had canceled her checks and everything was fine. Denise was still on the telephone with the credit card company and did not yet know the card was stolen. Maria watched Stanley join defendant at the Sunglass Hut kiosk, just feet from the jewelry store, and saw defendant trying on sunglasses. When the credit card company told Denise that the Discover Card had been stolen, Denise told the company to block the Discover Card because it was about to be used to purchase sunglasses.
Matthew, who worked at the Sunglass Hut kiosk, had noticed defendant and Stanley when Stanley was in the jewelry store. At that time, Matthew noticed that defendant was circling around and looking at the Sunglass Hut kiosk. When defendant and Stanley approached the kiosk, Matthew unlocked the cases and showed them various sunglasses to try on. Defendant asked Matthew to show Stanley some glasses he wanted her to try on, and he also wanted to try some on himself. Matthew removed the sunglasses from the cases and set them on the counter. Matthew took out two sunglasses from the special feature case for Stanley and six from another case for defendant. Defendant tried on a few pairs of sunglasses. He was interested in a pair of Versace sunglasses. Stanley stood right next to him and tried on other sunglasses. The sunglasses at the kiosk ranged in price from about $79 to $500.
Defendant and Stanley selected a pair of women’s sunglasses to purchase. Stanley gave Matthew a credit card in Cindy’s name. Meanwhile, defendant continued trying on sunglasses. Matthew asked Stanley for identification and Stanley showed him the checks in Cindy’s name. Matthew agreed to take the credit card, but it was declined by the processing company. Defendant immediately asked Stanley if she could “just write a check for it.” Matthew said he could not accept the check without another form of identification, which Stanley could not produce. Stanley told Matthew they would come back after they took care of whatever needed to be done and they both hurried off. The sunglasses were still out on the counter. No one else had been near them. Matthew started putting the sunglasses away and realized the Versace sunglasses were missing from the group of sunglasses defendant had been trying on. The missing sunglasses were worth $210. As with all the sunglasses at the kiosk, the missing pair had a price tag on the left arm. But on the missing pair, the information on the tag was handwritten, probably because the pair had previously been returned.
About the time Matthew realized a pair of sunglasses had been stolen, Denise approached and asked if his previous customers had tried to buy something. He said they had, and Denise told him their credit card was fraudulent.
At that moment, Cindy arrived at the jewelry store. She and Denise followed defendant and Stanley at a distance, tracking them halfway down the mall. Along the way, Cindy and Denise found a security officer and told him to contact the police because these people had committed fraud.
The responding police officer, who was stationed at the mall, caught up to a security officer who was still following defendant and Stanley into Macy’s. They matched the descriptions the officer had received, so he detained them. The officer was investigating the fraudulent use of the credit card; he did not yet know about the stolen sunglasses. When the officer searched Stanley, he found numerous credit cards, including two that did not match her identification. One belonged to Cindy. When the officer searched defendant, he found in the internal breast pocket of his jacket a pair of sunglasses, still bearing a price tag. The officer found no receipts. He called Denise and Cindy to come to Macy’s. Denise was able to identify both Stanley and defendant, but Cindy did not remember seeing them in her store. The officer then went to the jewelry store to speak to Maria, who directed him to the Sunglass Hut. There, Matthew told the officer about the stolen sunglasses and showed him an identical pair, which the officer believed matched the pair he had found on defendant. The officer told Matthew the sunglasses would be returned the next day.
The Hallmark store had closed at 9:30 p.m., but Cindy continued to work. At about 11:00 p.m., the police returned her Discover Card and all but one of her checks. Cindy had not given anyone permission to use her credit card that evening.
The next day, an officer returned the Versace sunglasses to Matthew. They were the same pair that had been stolen, still bearing the handwritten price tag. When any pair of sunglasses was sold from any Sunglass Hut, it was the store policy to remove the price tag and clean the glasses well.
DISCUSSION
I. Prior Bad Acts
Defendant contends the trial court erred by admitting evidence of the bad acts he committed at the mall before stealing the sunglasses. Defendant argues that the prosecutor used the evidence to establish defendant’s propensity to commit crimes. In light of defense counsel’s failure to object to the evidence, defendant asserts that counsel provided ineffective assistance. We conclude the evidence was properly admitted.
Although Evidence Code section 1101 prohibits the admission of evidence of other offenses to prove propensity or bad character, subdivision (b) of section 1101 allows this evidence when relevant to prove some fact such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. However, evidence admissible under section 1101, subdivision (b), may be excluded “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) We review the court’s evidential rulings for an abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1149.)
The prosecution argued that the evidence of the prior bad acts showed motive, as follows:
“Motive, that’s part of why you heard the entire story in this case, part of why you heard from Cindy … and why her card was stolen. That’s why you heard about the attempted fraud, the use of the credit card [at] Lundstrom’s Jewelers. [¶] The defendant and …, his lady friend, were out to steal. After all, the defendant could not pass for Cindy. [¶] Now, the defendant’s not charged with those crimes involving the stolen credit card. Gia Stanley, the defendant’s friend, is not involved in this trial. [¶] … [¶] … Your only charge here is to make a determination on the defendant’s guilt, not for whether or not he stole [credit] cards, not whether or not she stole [credit] cards. It’s whether or not he stole those sunglasses from Sunglass Hut on December 13th, 2007. That’s your question. That’s the focus on the deliberation.
“But this other stuff goes to motive. These people went on a crime spree. They were—they were motivated to steal. He and Ms. Stanley were together at the mall. He [sic] tried to use a credit card when he was there. [¶] Monica …, who testified in this case, told us she felt the defendant was trying to distract her while Stanley was attempting to use a stolen credit card. She had such a feeling they were attempting to steal, that she said she wasn’t going to let them see her write down the credit card information.
“The couple was clearly in cahoots. They were clearly together. When Stanley was attempting to purchase some glasses at the Sunglass Hut, she was diverting attention away from the defendant. [¶] The evidence has shown these people worked together that night. They were opportunists. The defendant attempted to take advantage of the opportunity he had at the Sunglass Hut. It was a crime spree.”
Later in his argument, the prosecutor returned to the subject, as follows:
“What are the other relevant circumstances in this case? It’s important to note, I think very important, as far as a relevant circumstance, that [CALCRIM No.] 376 allows us to consider, is the woman, Stanley, and the defendant, were not out holiday shopping here. They were together. He was right there at the jewelry store when the clerk testified she felt the defendant was trying to distract her, and she was processing a fraudulent card to use at Lundstrom’s Jewelers. They were together a short time later when his friend attempted to use the fraudulent card at the Sunglass Hut.
Judicial Council of California Criminal Jury Instructions (2006-2007).
“Okay. So he’s with his friend, the card is rejected because they don’t have ID. They go to the Sunglass Hut. It’s rejected. What does he do? He asks if she can write a check. This is a man who has been with her, at least through Lundstrom’s, knows the credit card is rejected, wants her to write a check, and the checks are Cindy[’s] …. It’s very relevant. It’s a crime spree. They were partners in crime. They served as distractions for one another.
“Quite simply, Matthew … showed the glasses to the defendant. The defendant tried them on. The defendant took them. [Stanley’s] fraudulent card was refused, and they left the store saying they would be back later after they got it straightened out.”
We believe the prosecution’s theory was in reality more a common design or plan theory than a motive theory. Nevertheless, evidence of defendant’s prior uncharged acts was admissible to show that defendant “committed the charged offense pursuant to the same design or plan used in committing the uncharged criminal acts.” (People v. Ewoldt (1994) 7 Cal.4th 380, 399 (Ewoldt).) “‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ [Citation.] For example, a letter written by the defendant stating he planned to commit a certain offense would be relevant evidence in a subsequent prosecution of the defendant for committing that offense. [Citation.] The existence of such a design or plan also may be proved circumstantially by evidence that the defendant has performed acts having ‘such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation.] Evidence of a common design or plan, therefore, is not used to prove the defendant’s intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense.” (Ewoldt, supra, at pp. 393-394, fn. omitted.) “For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution.” (Id. at p. 394, fn. 2.)
A motive is a reason for committing a crime, such as supporting a drug addiction, avoiding apprehension, getting revenge, and silencing a victim. “‘Motive is itself a state-of-mind or state-of-emotion fact. Motive is an idea, belief, or emotion that impels or incites one to act in accordance with his state of mind or emotion. Thus, evidence, offered to prove motive, that defendant committed an uncharged offense meets the test of relevancy by virtue of the circumstantial-evidence-reasoning process that accepts as valid the principle that one tends to act in accordance with his state of mind or emotion.’ [Citation.]” (People v. Pic’l (1981) 114 Cal.App.3d824, 855-856, italics added, disapproved on another ground in People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12.) The prosecutor does not appear to have been arguing that defendant engaged in the acts because he had an uncontrollable compulsion to steal.
“[I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation.] … [¶] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]” (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
Here, evidence of the acts defendant committed before he took the sunglasses showed that he and Stanley had a plan to steal merchandise at the mall that evening, either by pretending to pay for it with a stolen credit card or by simply taking it. The prior acts occurred on the same evening, in the same mall, with the same companion—something of a crime spree, as the prosecutor argued. Stanley possessed a credit card that had been stolen from a store in the mall that evening, and she and defendant engaged in two similar attempts to use the stolen credit card—one at the jewelry store and the other at the sunglasses kiosk. The two incidents were highly similar. In both incidents, the two companions looked at and decided to buy expensive merchandise. One companion utilized diversionary tactics to facilitate the efforts of the other. When the credit card was refused, they legitimized the rejection by pretending Stanley had lost her identification and stating they would return after finding it. In the charged offense, defendant had the lucky opportunity to simply take the sunglasses while Matthew was distracted by Stanley and the credit card. As in Ewoldt, we conclude that “evidence of defendant’s uncharged misconduct shares sufficient common features with the charged offense[] to support the inference that both the uncharged misconduct and the charged offense[] are manifestations of a common design or plan. Such evidence is relevant to establish that defendant committed the charged offense[] in accordance with that plan.” (Ewoldt, supra, 7 Cal.4that p. 403.) The trial court did not err in admitting the evidence.
Furthermore, the highly probative value of the evidence to show defendant’s plans to steal merchandise at the mall was not outweighed by the risk of confusing or misleading the jury, as defendant claims. Contrary to defendant’s claims, the prior acts were similar to the charged act. Moreover, although there was no evidence that defendant stole the credit card, there was overwhelming evidence that the credit card was stolen and he knew it. We see no risk of confusion.
In sum, we are confident this evidence was properly admitted and would not have been excluded had defendant raised an objection pursuant to Evidence Code section 352.
Because we find no error here, defendant’s claim that defense counsel was ineffective for failing to object to the evidence also fails. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 697 [defendant must show prejudice and we can adjudicate an ineffective assistance claim solely on the issue of prejudice]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218 [same].)
II. Instruction to View Admissions with Caution
Defendant argues that the trial court erred by failing to instruct the jury to view admissions cautiously. Defendant points to Matthew’s testimony that after Stanley attempted to buy sunglasses with Cindy’s credit card, defendant asked Stanley if she could “just write a check for it.” This testimony, defendant asserts, made him appear more than a passive participant because it suggested he knew the credit card and checks were stolen and he endorsed Stanley’s use of them. The People respond that the failure to instruct was harmless, and we agree.
CALCRIM No. 358 admonishes the jury to “[c]onsider with caution any statement made by [the] defendant tending to show [his] guilt unless the statement was written or otherwise recorded.” If there is evidence of an oral admission by a criminal defendant, the trial court has the sua sponte duty to instruct the jury that it should view the evidence of any such admission with caution. (People v. Carpenter (1997) 15 Cal.4th 312, 392-393, super ceded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107; People v. Bunyard (1988) 45 Cal.3d 1189, 1224.) “‘The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.’ [Citation.]” (People v. Carpenter, supra, at p. 393.) An error in failing to give the instruction is harmless if no reasonable probability exists that appellant would have obtained a more favorable verdict had the instruction been given. (People v. Carpenter, supra, at p. 393.) In assessing the effect of a failure to instruct, we review the record for any evidence that the statement was not made, was fabricated, or was inaccurately remembered or reported. (Ibid.)
Assuming defendant’s question to Stanley amounted to an admission and the trial court was thus obligated to instruct with CALCRIM 358, we find no prejudice resulting from the omission. There was no evidence that defendant did not make the statement or that Matthew fabricated it or remembered it incorrectly. Furthermore, the evidence that defendant took the sunglasses was overwhelming. He tried them on, was interested in them, stood next to them at the counter while Stanley distracted Matthew, and was found carrying them minutes later. Defendant presented no evidence to controvert this evidence, but merely argued that the sunglasses found on his person were not the ones that had been stolen, an argument finding no support in the record. In addition, the jury was fully instructed on evaluating the credibility of witnesses with CALCRIM No. 226 on the believability of witnesses, No. 301 on the sufficiency of the testimony of a single witness, and No. 302 on evaluating conflicting evidence.
We conclude defendant has not carried his burden of showing a reasonable probability that he would have obtained a more favorable verdict had the instruction been given. (People v. Carpenter, supra, 15 Cal.4th at p. 393.) Any error was harmless.
II. Custody Credit
Lastly, defendant asserts that he is entitled to one additional day of custody credit. The People concede and we accept that concession.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment awarding one additional day of custody credit and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Poochigian, J.