Opinion
H030738
5-15-2007
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RAY BIGGINS, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Anthony Biggins was charged by information filed April 27, 2006, with petty theft with a specified prior (Pen. Code, § 666; count 1), and second degree burglary (§§ 459, 460, subd. (b); count 2). The information further alleged that defendant had a prior felony conviction that qualified as a strike (§ 1170.12), and that he had served three prior prison terms (§ 667.5, subd. (b)). On June 29, 2006, the court granted defendants motion to bifurcate trial on the alleged priors, and on July 10, 2006, defendant admitted the strike prior and two of the prison priors. On July 11, 2006, the jury found defendant guilty of count 1 and not guilty of count 2.
All further statutory references are to the Penal Code.
Viewing the record in the light most favorable to the judgment, as we must (People v. Johnson (1980) 26 Cal.3d 557, 578), the trial evidence was as follows.
Burlington Coat Factory loss prevention officers Samuel Pinon and Isaac Martin were working at the store at the Great Mall in Milpitas around 12:30 p.m. on the afternoon of March 11, 2006, when they saw defendant enter the mens fitting room area. Defendant was carrying five items: two pairs of faded blue Academic jeans; a pair of light blue jeans; a pair of mesh shorts; and a navy blue Academic hat. After defendant entered fitting room 4, Pinon and Martin went to the loss prevention office in order to watch the exit of the fitting room on the store surveillance camera. They did so because defendant matched the description of a man Martin had previously seen on surveillance tapes leave twice with missing items.
Defendant exited fitting room 4 after three to five minutes carrying two items, the light blue jeans and the mesh shorts. Pinon instructed Martin to check the fitting room while he maintained surveillance on defendant. Martin saw several pieces of broken store sensors in the fitting room, which had been clean before defendant entered it. Martin returned to the office and told Pinon what he found. Martin and Pinon watched defendant hand the fitting room attendant two items and take them back, walk down the main aisle of the store with the two items, and head toward the Womens Casual department. Defendant left the two items he had been carrying on a rack in that department. Pinon instructed Martin to stay in the office and maintain surveillance on defendant so that Pinion could retrieve the items defendant left.
Pinon went to the rack where defendant had left the items and found some store sensors and three price tags, two belonging to Academic jeans and one belonging to an Academic hat, in the pocket of the jeans that defendant had left on the rack. Pinon then found defendant, followed him from about 20 feet away, and instructed Martin to join him. Martin reached the store exit before defendant did. Defendant walked out the door without stopping at a cash register. Pinon and Martin identified themselves to defendant when defendant was just outside the store doors. Pinon asked defendant if he had anything that was not paid for that belonged to the store. Defendant replied, "you got me, I got your jeans, I want no trouble."
Defendant reached into his right jacket pocket. Pinon asked defendant to take his hand out of his pocket for safety reasons. Defendant did not comply. Pinon took defendants right wrist and twisted it behind his back, then brought him back inside the store. Pinon asked defendant if he was wearing the jeans. Defendant said that he had them underneath his left armpit inside his jacket. Pinion found two pairs of Academic jeans under defendants jacket and an Academic hat in the left rear pocket of defendants jeans. The jeans and hat matched the tags that Pinon had found in the pocket of the jeans defendant left on the rack in the Womens Casual department. Pinon arrested defendant and escorted him back to the loss prevention office. Pinon did another search of defendant and found a pocket knife and wire cutters on him. Wire cutters can be used to cut off store sensors from store clothing. Pinon left defendant with Martin, went to the managers office, notified the police, and wrote a report.
As a loss prevention officer, Pinon can make a citizen arrest any time an individual attempts to take or damage store merchandise or property. However, he has to personally observe a theft before he can legally detain an individual. He also must write a report as soon as possible after each incident. In the report that Pinon prepared on this incident and submitted to the Milpitas police when they arrived, Pinon did not mention that he found wire cutters on defendant.
Milpitas Police Officer Joseph Minton responded to the report of an offense at the Burlington Coat Factory on March 11, 2006. Pinon told Officer Minton that defendant attempted to steal two pairs of jeans and a hat from the store. Pinon showed the officer the merchandise, broken store sensors, and price tags. Minton photographed the items and returned the merchandise to the store. Pinon also told Minton that he found wire cutters on defendant and gave the wire cutters to the officer. The officer booked the wire cutters and the broken store sensors into evidence.
Burlington Coat Factory loss prevention officer Mark Salting watched defendant on the Great Mall store surveillance camera on January 26, 2006. He saw defendant select five items from the mens department, three pairs of jeans and two shirts, and go into the fitting rooms. When defendant left the fitting rooms five or ten minutes later, he had only four items, two pairs of jeans and two shirts. He went back to the mens department, left the four items on a rack, and left the store. Salting went to the mens department and found a store sensor and price tag for a different pair of jeans inside the pocket of one of the pairs of jeans defendant had left on the rack.
Officer Salting saw defendant at the store again on February 15, 2006. On that day, defendant went into the fitting rooms with six items and came out with five. He went to the mens department, hung up the five items, and left the store. Salting checked the fitting room defendant used and found that nothing had been left behind. He then checked the items that defendant had left in the mens department and found a store sensor and store tag inside the pocket of a pair of jeans.
Officer Salting was called in to the store on March 11, 2006, prior to his scheduled start time, and was asked if he recognized defendant. Salting said that he recognized defendant as the same person he had seen on January 26, and February 15, 2006.
While the jurors were deliberating, and outside their presence, defendant waived trial on the priors and admitted the strike prior and two of the prison prior allegations. The jury found defendant guilty of count 1 (§ 666) and not guilty of count 2 (§§ 459, 460, subd. (b)). Defendant filed a Romero motion on September 18, 2006, and the People filed opposition to the motion on September 29, 2006. On October 6, 2006, the trial court granted the motion, struck the strike and the prison priors, and sentenced defendant to state prison for the middle term of two years.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel filed an opening brief which states the case and facts but raises no issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. Defendant has exercised that right by submitting a letter that was filed in this court on April 11, 2007. In the letter, defendant contests the sufficiency of the evidence to support the guilty verdict as (1) the store report does not match the police report; (2) Pinons testimony does not match the police report; (3) the store did not suffer any loss; (4) he was found not guilty of entering the store with the intent to commit theft; (5) Pinons testimony does not match his written report; (6) Martins testimony does not match the store report; (7) all three loss prevention officers testified that they only saw defendant leave the fitting room with fewer items than he had when he entered; and (8) he could not have left the fitting room with fewer items than what he had when he entered without an altercation. None of these contentions undermine the jurys determination, based on the evidence recited above, that defendant violated section 666 as charged in count 1 by unlawfully leaving the store with store merchandise with the intent to keep it. (CALCRIM No. 1800 [theft by larceny].)
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
The judgment is affirmed.
We Concur:
MIHARA, J.
MCADAMS, J.