Opinion
D057957
01-10-2012
THE PEOPLE, Plaintiff and Respondent, v. RODNEY LEE RIGGINS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN260586)
APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Affirmed in part, reversed in part, and remanded with directions.
I.
INTRODUCTION
Defendant Rodney Lee Riggins appeals from a judgment of conviction entered after a jury convicted him of robbery, grand theft, petty theft, and burglary. Riggins contends that the trial court erred in (1) failing to instruct the jury sua sponte with a defense of property instruction; (2) instructing the jury that it could infer his guilt based on his hiding of evidence; (3) instructing the jury that it could infer his guilty based on his attempt to flee from police; and (4) failing to strike the grand theft conviction because that offense was based on the same conduct as his conviction for robbery, for which the theft is a lesser included offense.
The People concede that the trial court erred in not striking Riggins's grand theft conviction, and we accept the concession. We reject Riggins's other claims. We therefore reverse Riggins's conviction for grand theft, and affirm the judgment in all other respects. We remand the matter to the trial court with directions that the court enter an amended abstract of judgment reflecting the reversal of Riggins's conviction for grand theft.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
At approximately 6:00 p.m. on April 15, 2009, Riggins entered an Adidas store at the Carlsbad Premium Outlets in San Diego County. Riggins was wearing a jacket and holding a large duffel bag. He approached a sales associate who was at a cash register.
The sales associate handed Riggins two empty shopping bags. Riggins then went into a footwear aisle of the store, removed a pair of shoes from a shoe box, and placed the empty box back on the shelf.
These facts are based on a surveillance video from the store. The record does not indicate why the sales associate handed Riggins the empty shopping bags.
Riggins proceeded to pick up a white shirt and place it inside his duffel bag. Riggins then placed multiple pairs of shoes into the empty shopping bags. Riggins picked up his duffel bag and the shopping bags, which were now full, and walked out of the store.
Riggins did not pay for any of the merchandise that he took from the Adidas store. The total value of the stolen merchandise was $359.88.
Between 6:00 and 7:00 p.m. that same evening, Riggins walked into the Gap store at the same shopping mall. He was carrying a duffel bag that was nearly empty, and two full Adidas shopping bags.
Before Riggins entered the Gap store, Terence Wilkerson, a loss prevention agent for the Gap, noticed Riggins. The fact that Riggins was walking around the mall with an empty duffel bag caught Wilkerson's eye because, in Wilkerson's experience, people who shoplift tend to engage in this kind of behavior. Wilkerson followed Riggins into the Gap store.
Once Riggins was inside the Gap store, he entered the women's department and began looking at some women's denim pants and some shirts. He placed his bags on the floor and interacted with several of the store's sale associates. Riggins told the sales people that he needed help finding "something for his girlfriend or his wife." Riggins selected three pair of women's pants and two women's shorts, and then pulled out his wallet. Riggins told a sales associate that he did not have any money and thanked her for the assistance. He said that he would return later to pick up the merchandise.
After the sales associate headed toward the back of the store, Riggins picked up the merchandise that he had gathered with the associate's help, and took that merchandise, together with his duffel bag and the two Adidas shopping bags, over to the men's department of the store. Riggins set down his duffel bag and the Adidas shopping bags behind a building fixture, and then placed the women's clothing on top of the duffel bag. After waiting for other shoppers to leave the vicinity, Riggins bent down, unzipped his duffel bag, and put the women's clothing inside the duffel bag.
After he placed the women's clothing in the duffel, Riggins stood up, looked around, and headed toward a wall of men's denim pants. Riggins "grabbed a stack of men's denim" and placed the merchandise on top of the duffel bag. He again waited for other customers to leave the area, and then bent down and placed the pants in his duffel bag.
Wilkerson had been observing Riggins from several feet away. Based on his prior experience, Wilkerson was fairly certain that Riggins was about to leave the store with the concealed items. Wilkerson informed the store's management team that he was planning to apprehend Riggins. Wilkerson then exited the store and waited immediately outside the store, so that he could maintain an unobstructed view of Riggins.
Riggins eventually walked past the cash registers without making any attempt to pay for the merchandise that he had placed inside his duffel bag. As Riggins approached the front of the store, Wilkerson was about to apprehend him exiting the store when a man and two children effectively "cut [Wilkerson] off." Wilkerson stopped abruptly, and Riggins also stopped abruptly. Riggins allowed the man and his children to enter the store, made eye contact with Wilkerson, turned around, and walked toward the back of the store. Wilkerson continued to wait outside.
After walking around the store, Riggins eventually walked toward the front of the store and placed his duffel bag and the two full Adidas bags on the floor, about 15 feet away from the front doors to the store. Riggins walked outside and started talking on his cell phone. Wilkerson overheard Riggins ask, "Where are you at?" and "You almost here?" Riggins then ended the call and approached Wilkerson. Riggins struck up a conversation with Wilkerson, asking him whether he worked in the area and what he did for work. Wilkerson did not want to "blow [his] cover," so he told Riggins that he worked for TaylorMade, a golf company. Wilkerson mentioned that he was waiting for his girlfriend, and the two continued to make small talk.
In the meantime, the store manager, who had noticed Riggins's "very shifty behavior" while he was in the store, had seen Riggins place the duffel bag and two Adidas shopping bags on the floor near the entrance to the store. The store manager started asking to whom the bags belonged, and Riggins entered the store and said that they were his bags. Riggins then picked up all three bags and walked out of the store.
Wilkerson approached Riggins outside the store, identified himself as the store's loss prevention agent, and said that they needed to talk about the merchandise that Riggins was concealing inside his duffel bag. Wilkerson asked Riggins if he could look inside the duffel bag to see what was in there. According to Wilkerson, Riggins became loud and obnoxious, and started to yell. Riggins denied that he had stolen anything and stated that the items in the bags belonged to him.
Wilkerson tried to grab the duffel bag, but Riggins also grabbed the bag. After trying to rip the bag from Wilkerson's hand, Riggins reached his hand into one of his pockets and pulled out a box cutter. Riggins told Wilkerson to back up, while he motioned toward Wilkerson's chest with the exposed blade. Fearing for his safety, Wilkerson let go of the bag and said, "[I]t's yours, take it."
Riggins proceeded to head north, through the mall, at "a fairly high rate of speed." He was carrying the duffel bag, which was filled with the Gap merchandise that he had not paid for, as well as the two Adidas shopping bags, which were filled with the Adidas merchandise that he had not paid for.
Wilkerson called 911 on his cell phone. He explained to the operator what had just occurred and described Riggins. While Wilkerson was on the phone with the 911 operator, he, together with Brad Hunter, an off-duty Oceanside police detective who happened to be in the Gap store when the events transpired, followed Riggins through the mall, in the direction of some nearby car dealerships. Once Wilkerson reached one of the dealerships, he no longer had Riggins in sight and told the operator that he was unable to follow Riggins any farther. A few minutes later, Carlsbad Police Sergeant Greg White met Wilkerson at the car dealership. Wilkerson described Riggins's clothing and the bags that he was carrying. Sergeant White then drove northbound and entered another car dealership, approximately a half mile from the shopping center.
At that dealership, Sergeant White spotted Riggins in between some cars in the middle of the parking lot. Riggins moved to a position behind a car where Sergeant White could not see him. Riggins then briskly walked away from Sergeant White and another officer, who was also pursuing him. Riggins became distracted by the other officer, and Sergeant White was able to catch up with him. Riggins refused to comply with Sergeant White's order to put his hands on a car. Riggins complied only when the other officer arrived with a taser. By this time, Riggins had changed his appearance. He was still wearing jeans and yellow cowboy boots that Wilkerson had seen him wearing, but he had removed a baseball cap and glasses, and had put on a white sweatshirt.
The officers arrested Riggins. Wilkerson and Hunter positively identified Riggins as the person who had taken the items from the Gap store without paying. Wilkerson also identified the duffel bag and two Adidas shopping bags as the bags that Riggins had been carrying. Officers found the bags behind one of the dealership's cars, in a different area of the dealership from where Riggins had been detained. The brown jacket that Riggins had been wearing was found lying on top of the duffel bag. Inside the duffel bag were Riggins's North County Transit District photo identification card, some of Riggins's mail and bank statements, the box cutter that Riggins had used against Wilkerson, and the Gap merchandise that Riggins had taken.
Wilkerson and a Carlsbad police officer returned to the Gap store with the merchandise that Riggins had placed in his duffel bag. The value of the merchandise was $575.11. B. Procedural background
A jury convicted Riggins of robbery (Pen. Code, § 211; count 1); grand theft (§ 487, subd. (a); count 2); petty theft (§ 484; count 3); and burglary (§ 459; count 4). The jury also found that Riggins personally used a deadly weapon (a box cutter) in the commission of the robbery (§§ 1192.7, subd. (c)(23), and 12022, subd. (b)(1)).
Further statutory references are to the Penal Code unless otherwise indicated.
The trial court found true the allegations that Riggins had suffered three prior prison term convictions (§§ 667.5, subd. (b), 668), three serious felony prior convictions (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and one prior strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12).
On August 17, 2010, the trial court sentenced Riggins to a term of 42 years to life. Riggins filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court did not err in not instructing the jury on defense of property
Riggins contends that the trial court erred in failing to instruct the jury on the defense theory of the case, i.e., that when Riggins struggled with Wilkerson over the duffel bag, Riggins believed he was protecting the stolen property from another thief, as opposed to a store security officer. On appeal, Riggins asserts that the trial court should have instructed the jury, sua sponte, with CALCRIM No. 3476, an instruction on the defense of property. According to Riggins, his theory at trial was that his use of force against Wilkerson in pulling out the box cutter was motivated not by an intent to steal the merchandise, but, rather, by the desire to defend his own property (i.e., the identification card, mail and other small items in the duffel bag) and/or the stolen merchandise. Riggins acknowledges that he did not request an instruction on defense of property but nevertheless asserts that the court should have given the instruction because his attorney argued that Riggins did not have the requisite intent in using force to be convicted of robbery.
CALCRIM No. 3476 provides, in relevant part: "The owner [or possessor] of (real/[or] personal) property may use reasonable force to protect that property from imminent harm."
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We conclude that the trial court did not err in not instructing the jury, sua sponte, on the specific defense of defense of property, since there was not substantial evidence to support that defense. In order for Riggins to have been entitled to a specific instruction on the defense of property, there would have had to have been sufficient evidence to show that Riggins's use of force against Wilkerson was done "[t]o prevent an illegal attempt by force to take or injure property in [Riggins's] lawful possession." (Pen. Code, § 693, italics added [lawful resistance].) However, the evidence demonstrated that the property that Riggins was purportedly defending was not property that was lawfully in his possession, but instead, was property that Riggins had illegally taken from the stores.
Although Riggins contends on appeal that he could have been protecting his own property that was also in the duffel bag (i.e. some mail, a transit card, etc.), those items were mingled with property that was clearly not in Riggins's lawful possession. Riggins simply had no right to defend the stolen property against someone else's attempt to possess it. He was not entitled to an instruction on defense of property, since that is not a defense to taking stolen property by force or fear. The trial court did not err in failing to instruct the jury on defense of property. B. The trial court did not err in instructing the jury that it could infer Riggins's guilt from his hiding evidence
Riggins contends that the trial court erred in giving CALCRIM No. 371, over his attorney's objection, because there was no showing that he hid his duffel bag. CALCRIM No. 371 allows the jury to consider whether efforts by a defendant to suppress or hide evidence raised an inference of consciousness of guilt. The written instruction that the court gave to the jury was as follows: "If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
"A defendant's willful suppression of evidence, or willful attempt to suppress evidence, is admissible to prove consciousness of guilt." (People v. Edelbacher (1989) 47 Cal.3d 983, 1007, citing Evid. Code, § 413.) " 'It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. [Citation.] [¶] Whether or not any given set of facts may constitute suppression or attempted suppression of evidence from which a trier of fact can infer a consciousness of guilt on the part of a defendant is a question of law. Thus in order for a jury to be instructed that it can infer a consciousness of guilt from suppression of adverse evidence by a defendant, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference.' [Citation.]" (People v. Hart (1999) 20 Cal.4th 546, 620 (Hart).)
On appeal, a reviewing court looks at the record to determine whether there is substantial evidence supporting the trial court's decision to give an instruction on an attempt to hide evidence. (Hart, supra, 20 Cal.4th at p. 620.)
Riggins contends that there was no evidence from which the jury could have inferred that he hid or attempted to hide evidence. According to Riggins, the fact that he did not have the bags with him at the moment he was apprehended "does not lead to the inference that he suppressed evidence." The bags were found underneath the rear bumper of a car that was located toward the entrance to the northern driveway of the car dealership lot, and Riggins was apprehended some distance away from the bags, in an area described as the east end of the parking lot, toward the back of the dealership. The parking lot was filled with approximately 60 cars. This constitutes substantial evidence to support the trial court's decision to give the instruction regarding an attempt to hide evidence. The jury could have reasonably inferred from the fact that Riggins placed the stolen merchandise behind a car in the large dealership and then left the merchandise while he headed off in another direction, that Riggins was attempting to hide that evidence and distance himself from the stolen merchandise. The trial court thus did not err in instructing the jury that it could infer consciousness of guilt from Riggins's attempt to hide evidence in this case. C. The trial court did not err in instructing the jury that it could infer Riggins's guilt from his flight from police
Riggins contends that because there was no evidence that he fled, the trial court erred in instructing the jury that it could infer his guilt from his flight from police. We disagree.
Over defendant's objection, the trial court instructed the jury with CALCRIM No. 372 as follows: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
Evidence that a defendant tried to hide after the crime is relevant to show consciousness of guilt. (People v. Vu (2006) 143 Cal.App.4th 1009, 1030.) A flight instruction " 'is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 982.) Further, " 'flight requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.' [Citation.]" (People v. Visciotti (1992) 2 Cal.4th 1, 31.)
On appeal, a reviewing court determines whether there was sufficient evidence presented from which a jury could have reasonably inferred that the defendant fled after the crime. (People v. Lutz (1980) 109 Cal.App.3d 489, 498.)
Riggins argues that there was insufficient evidence of flight to warrant the flight instruction. He contends that he did not run away from the store or flee in a vehicle, but instead, simply walked through the mall and across the street. He also suggests that the police found him walking and standing. Contrary to Riggins's contentions, there was abundant evidence of flight. Wilkerson and Hunter watched as Riggins "fled" the scene at a "fairly high rate of speed." In addition, Riggins went straight into a car dealership, where he maneuvered between cars and at one point moved into a position where an officer's view of him was blocked by a vehicle. All of this is sufficient evidence of flight from which the jury could reasonably infer that Riggins was attempting to avoid being arrested.
In addition, the instruction left it up to the jury to determine whether defendant's conduct constituted flight and, if so, what the "meaning and importance" of that conduct was. The jury was told that if it did not find that Riggins's departure from the scene of the robbery constituted flight immediately after the commission of a crime, it should disregard CALCRIM No. 372. On the other hand, if the jury found that Riggins was attempting to flee, the instruction provided Riggins some amount of protection by informing the jury it could not infer guilt from his flight, alone. It is clear that the trial court did not err by instructing the jury with CALCRIM No. 372 under these circumstances. D. The grand theft conviction on count two must be reversed
Riggins contends that the trial court erred in failing to strike his grand theft conviction on count 2 because that charge was a lesser included offense of the robbery charged in count 1. The People concede that the court should have stricken Riggins's conviction on count 2 for grant theft because the two offenses were based on the same conduct.
Theft is a necessarily included offense of robbery. (People v. Ortega (1998) 19 Cal.4th 686, 699, disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228.) The robbery alleged in count 1 was based on Riggins's unlawful taking of property belonging to the Gap store from Wilkerson, a Gap employee, by force or fear. The grand theft alleged in count 2 was based on Riggins's unlawful taking of property belonging to the Gap store. The prosecutor explained to the jury that the crimes alleged in counts 1 and 2 were based on the same conduct, i.e., Riggins's unlawful taking of Gap merchandise. As the People concede, it appears that the convictions for counts 1 and 2 are based on the same conduct, and since count 2 is a lesser included offense of count 1, the grand theft conviction in count 2 must be reversed.
IV.
DISPOSITION
The conviction on count 2 (grand theft) is reversed. The judgment is otherwise affirmed. The matter is remanded to the trial court with directions to prepare an amended abstract of judgment reflecting the reversal of the conviction on count 2 and to forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
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AARON, J.
WE CONCUR:
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NARES, Acting P. J.
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McINTYRE, J.