Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF026610. Bernard Schwartz, Judge.
Jan B. Norman, 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, Assistant Attorney General, Rhonda Cartwright-Ladendorf, and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ramirez P.J.
Following a jury trial, defendant Stacey Monique Turner (defendant) was convicted of commercial burglary (Pen. Code, § 459) and petty theft (§ 484), following a shoplifting incident. She admitted four prison priors (§ 667.5, subd. (b)) following the verdicts, was sentenced to a term of six years in prison, and appealed. On appeal, defendant challenges the denial of her motion for acquittal (§ 1118.1) based on the alleged insufficiency of evidence to prove she had formed the requisite intent at the time she entered the store. We affirm.
All further statutory references are to the Penal Code, unless otherwise specified.
BACKGROUND
Because defendant challenges the trial court’s ruling on her motion for acquittal, we summarize the evidence adduced up to close of the prosecution’s case-in-chief.
On November 14, 2007, at approximately 1:30 p.m. to 2:00 p.m., Danny Traylor (Traylor) was just getting off work from his job as a food clerk at a Stater Brothers store. He was on his way to the men’s room to wash his hands before leaving, when he encountered defendant, along with her child, and a male companion in the liquor department. Traylor knew the defendant by sight because they attended school together years before.
Defendant presented Traylor with a blank counter check (a check obtainable at a bank, usually to be cashed only at the bank by the drawer) and asked if he would cash it for her. She informed him she had already tried to cash the check at another store and had been unsuccessful. Traylor told defendant she would have to speak to a manager or have a check card in order to get approval but he did not think the store would cash it. Then Traylor went into the men’s room to wash his hands.
When he came out a very short time later, he saw defendant leaving the store, pushing a shopping cart containing beer. The male companion was not with defendant at the time. Because he felt there had not been sufficient time for defendant to have gone through a register to pay for the beer, Traylor contacted the store manager, James McKenzie (McKenzie), by way of intercom.
McKenzie was informed that defendant was suspected of stealing four cases of beer, and contacted defendant outside the store. McKenzie asked defendant if she had a receipt for the beer, but defendant replied by saying that Danny knew her. McKenzie asked defendant to return to the store. As they reentered the store and passed through the checkstands, defendant motioned to one of the cashiers, Krystle Palomino (Palomino), and asked if Palomino remembered checking her out. Palomino had not seen defendant go through her checkstand at any time that day, although she recalled seeing defendant when McKenzie brought her back into the store. McKenzie and defendant proceeded to the employee break area, where McKenzie left defendant while he viewed the surveillance video inside his office. While he was watching the video, he was informed by another employee that defendant had left.
McKenzie went back outside where he noticed a community service officer, Edward Diaz (Officer Diaz), who was in the vicinity in response to a motor vehicle accident. McKenzie flagged Officer Diaz down and reported his suspicion that defendant had not paid for the beer in her shopping cart. Defendant became upset and argumentative, saying she had a receipt for the beer, although she never produced one. Officer Diaz asked the store employee to move back 20 feet because his accusations had irritated defendant, and then noticed defendant’s companion, Darryl Carter(Carter), leaning against a car. At that time, the beer was still in the cart and the cart was just behind defendant’s vehicle. Officer Diaz called for another unit, and defendant was placed in Officer Diaz’s vehicle.
Sheriff’s Deputy Mack (Deputy Mack) responded to the grocery story to investigate the theft in response to Officer Diaz’s request for backup. Defendant was in Officer Diaz’s patrol car, and when Deputy Mack passed by, defendant tapped on the window and motioned for the deputy to come over. Defendant told Deputy Mack that Carter had a gun on him. However, Deputy Mack informed defendant that Carter did not have a gun on him. Defendant indicated the gun must be in the car. She also told Deputy Mack she did not have any money to pay for the beer. Deputy Mack searched defendant’s vehicle and located a handgun in the back passenger compartment on the floorboard. Subsequently, Deputy Mack was informed of the surveillance video by McKenzie and went to watch it. The video showed that defendant walked through a closed checkstand, spoke briefly to a cashier in a nearby checkstand, and then proceeded out of the store without paying for the beer.
Defendant was charged with commercial burglary (§ 459, count 1) and petty theft with a prior (§ 666, count 2), by way of information. It was further alleged she had served four prison terms for separate felony convictions (prison priors; § 667.5, subd. (b)). Following a jury trial, defendant was convicted of both counts. At the time of the sentencing hearing, defendant admitted all four prison priors, and was sentenced to an aggregate term of six years in prison: the midterm of two years for the commercial burglary count, a stayed term of two years for the petty theft with a prior (§ 654), plus a consecutive term of one year for each of the four prison priors.
After the motion for acquittal was denied, defendant testified in her own defense that she stole the beer because she was forced to do so by Carter, who before they entered the store, threatened to shoot her and her child. On cross-examination, she acknowledged that in 1992, she stole from Nordstrom’s, later claiming she was forced to do so by a man who had threatened to beat her up. She also admitted several other incidents in which she shoplifted from Stater Brothers and other stores, giving false statements after being caught.
DISCUSSION
After commencement of defendant’s case-in-chief, and the conclusion of the testimony of Traylor, defendant made a motion for acquittal (§ 1118.1), which was denied. On appeal, defendant challenges this denial on the ground the evidence was insufficient to prove she had entered the store with the intent to steal. We disagree.
After the People rested, the court asked the defense if it was reserving any motions and if the defense had witnesses to present. Defense counsel replied, “Yes, your Honor. I would ask to call Danny Traylor.” Later, after Traylor testified and was excused, the defense announced its intention to seek dismissal of count 1 pursuant to section 1118.1, to which the court replied, “Yes, I reserved that for you.” On appeal, the People have not challenged the timing of the defense motion but we note that defense counsel never expressly requested leave to make the section 1118.1 motion at a later time. (See People v. Valerio (1970) 13 Cal.App.3d 912, 920-921, discouraging the practice of permitting a defendant to make the motion after the evidence is in and deeming it made at the close of the prosecution’s case.) Because the court stated it had reserved the motion after the People rested, we must assume the motion was directed to the adequacy of the evidence at the point when the People rested, as opposed to when the motion was actually made, after Traylor had testified.
a. Standard of Review
Where the motion for acquittal is made at the close of the prosecution’s case-in-chief, the sufficiency of the evidence is tested as it stood at that point. (People v. Cole (2004) 33 Cal.4th 1158, 1213.) On appeal, the standard of review for a motion for judgment of acquittal under section 1118.1 is the substantial evidence test. (Id. at pp. 1212-1213; People v. Harris (2008) 43 Cal.4th 1269, 1286.) We review the record in the light most favorable to the result below to determine whether it discloses substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
b. Discussion
Penal Code section 1118.1 provides: “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.”
The standard applied by the trial court in ruling on a motion for acquittal is the same standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. (People v. Stevens (2007) 41 Cal.4th 182, 200, quoting People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) The purpose of such a motion is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case. (Stevens, at p. 200.)
To establish a burglary, the People must prove that defendant entered the premises with the intent to commit a felony or theft. (People v. Holt (1997) 15 Cal.4th 619, 669.) Intent is rarely susceptible of direct proof, so it may be inferred from all the facts and circumstances disclosed by the evidence. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574; see also In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) Thus, evidence of theft of property following entry may create a reasonable inference that the intent to steal existed at the moment of entry. (Matthew A., at p. 541, citing In re Leanna W. (2004) 120 Cal.App.4th 735, 741.)
Because no one objected to the trial court’s consideration of Traylor’s testimony, and because defendant has relied on Traylor’s testimony in her arguments, we do so also. The circumstantial evidence amply supports the jury’s verdict that defendant entered the store with the requisite intent. First, the fact that defendant admitted that she entered the store without cash, and with a counter check that had been previously rejected by another store, supports the inference that she did not intend to pay for anything within the store at the time of entry. Second, the fact that defendant did not seek out the manager to get approval to cash the counter check shows the check was never intended for use as payment for beer. Third, the direct manner in which defendant pushed her cart through the closed checkstand, speaking briefly with the cashier in a nearby checkstand, and then exited the store, as seen on the surveillance video, supports the conclusion the actions were part of a well-practiced and preconceived intention to steal the beer.
The trial court properly denied the motion for acquittal.
DISPOSITION
The judgment is affirmed.
We concur: s/Hollenhorst J.s/Miller J.