Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 2008048516
Miriam R. Arichea, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Tasha G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.
John E. Dobroth, Judge Superior Court County of Ventura
Ivery Lyn Bryant appeals the judgment entered after a jury convicted her of second degree robbery (Pen. Code, § 211), petty theft with prior convictions (§§ 666/484, subd. (a)), and misdemeanor battery (§ 242). Prior to trial, appellant stipulated that she had suffered four prior theft-related convictions. Following her conviction, she admitted allegations that she had served two prior prison terms (§ 667.5, subd. (b)), and was on felony probation when the current offenses were committed (§ 1203, subd. (k)). The trial court sentenced her to a total term of five years eight months in state prison. On appeal, she challenges the sufficiency of the evidence supporting her robbery and theft convictions. She also contends the court erred in admitting evidence of the facts underlying two of her prior theft convictions pursuant to Evidence Code section 1101, subdivision (b). We affirm.
All further undesignated statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
On November 19, 2008, appellant entered the Value Plus Food Warehouse in Oxnard, approached the butcher's counter, and asked for some shrimp. The store clerk gave appellant approximately two pounds of shrimp in a pink-tinted plastic bag. Shortly thereafter, security guard Richard Gonzalez saw appellant running out of the store as store manager Marco Solorzano and a loss prevention officer followed her. Gonzalez was told appellant had stolen "meat" from the store, so he ran outside and followed her to her vehicle.
Gonzalez asked appellant to get out of her vehicle, but she refused. When Gonzalez and Solorzano attempted to remove appellant from the vehicle, she resisted both men and bit Solorzano's arm. Solorzano told appellant, "[i]f you have anything, let it go, and you will be free to go, just walk away." Appellant continued struggling with both men until Gonzalez threatened to use his mace on her. At that point, Gonzalez was able to handcuff appellant and remove her from the vehicle.
Oxnard Police Officer Kevin Adair responded to the scene shortly thereafter. After speaking with store employees and observing bite marks on Solorzano's arm, Officer Adair arrested appellant. As the officer was transporting appellant to the police station, he smelled seafood. When he removed appellant from his vehicle, he saw what appeared to be the top of a plastic bag bulging from the bottom of appellant's shirt. Officer Adair told appellant she would be searched by a female officer. Appellant replied, "You better take the shrimp out, then." With appellant's permission, the officer proceeded to remove the bag of shrimp, which was stuffed down her pants.
DISCUSSION
I.
Sufficiency of the Evidence
Appellant contends the evidence is insufficient to support her convictions for robbery and petty theft with a prior. Specifically, she claims the prosecution failed to present any evidence from which the jury could have found that she did not pay for the shrimp she took from the store.
In reviewing claims of insufficient evidence, "'"... we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]"' [Citation.] '... [W]e presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.' [Citation.]" (People v. Wilson (2008) 44 Cal.4th 758, 806.) "Unless it is clearly shown that 'on no hypothesis whatever is there sufficient substantial evidence to support the verdict,' the conviction will not be reversed. [Citation.]" (People v. Misa (2006) 140 Cal.App.4th 837, 842.)
For purposes relevant here, both robbery and petty theft involve the felonious taking of another's property, i.e., stealing. (§§ 211, 484, subd. (a).) In convicting appellant of these crimes, the jury necessarily found that she stole the shrimp Officer Adair removed from her pants after her arrest. Substantial evidence supports that finding. Shortly after appellant was handed a bag of shrimp by a store employee, she hid it in her pants, ran to her vehicle, and prepared to drive away. When confronted, she did not present a receipt or otherwise claim to have paid for the shrimp. Moreover, appellant's prior conviction for shoplifting items by hiding them in her pants was relevant to establish that she took the shrimp without paying for it pursuant to a common plan or design. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2.) Contrary to appellant's claim, the prosecution did not have to introduce evidence that she "walked past the cash registers without paying," "set off a security alarm," or "loitered in the store aisles for an extended period of time." In light of the evidence that was actually presented, the jury could reasonably infer that appellant not only left the store without paying for the shrimp, but intended to do so. Appellant's claim of insufficient evidence fails.
II.
Evidence Code Section 1101, Subdivision (b)
Appellant contends that evidence of two of her prior theft-related convictions was admitted in violation of Evidence Code sections 1101, subdivision (a) and 352. We disagree.
In 2007, appellant was convicted of petty theft after she was caught stealing numerous items (including shrimp) from the same Value Plus store. In 2005, she was convicted of petty theft for stealing two bottles of tanning lotion from a Walmart store by concealing them in her pants. Prior to trial, the prosecution moved to admit evidence of both convictions pursuant to Evidence Code section 1101, subdivision (b). The 2007 conviction was offered to prove appellant's intent to commit the charged theft, while the 2005 conviction was offered as proof of a common design or plan to shoplift items by concealing them in her pants. In opposing the motion, appellant argued that the jury "probably will not listen to most of the evidence after that because it's so prejudicial." The court disagreed and permitted the prosecution to present evidence of both prior convictions.
Appellant notes that her attorney also sought to preclude the prosecution from introducing evidence of her prior convictions to prove intent by offering to stipulate that she intended to steal the bag of shrimp she took from the store. In response, the People refer to the trial court's conclusions that (1) the prosecution did not have to accept the stipulation, and (2) such a stipulation would not relieve the prosecution of its burden to prove appellant's intent to commit a theft. Appellant did not challenge these conclusions below, nor does she do so on appeal.
Evidence Code section 1101, subdivision (a) prohibits evidence of a person's character or trait to prove his conduct on a specified occasion. However, evidence of prior uncharged criminal conduct is admissible when relevant to prove some fact other than the defendant's disposition to commit the crime, such as motive, intent, knowledge, and existence of a common design or plan. (Evid. Code, § 1101, subd. (b); People v. Ewoldt, supra, 7 Cal.4th at p. 402, fn. 6.) A trial court's ruling admitting evidence of other crimes is reviewable for abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 864.) A court abuses its discretion when its ruling "falls outside the bounds of reason." (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
Our Supreme Court has held that the least degree of similarity between the uncharged prior crime and the charged offense is required to prove intent: "To be admissible to show intent, 'the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance.' [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1194.) A greater degree of similarity is required to show a common design or plan. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) "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." (Id. at p. 403.)
The court did not abuse its discretion in admitting evidence of appellant's prior convictions to prove her intent and the existence of a common design or plan. The 2007 conviction demonstrated that appellant had attempted to steal other items from the same store, including shrimp, less than two years before the instant offenses. The fact that the prior incident involved the same victim and stolen item renders it sufficiently similar to the charged crime to support the inference that appellant harbored the same intent to steal in both instances. (People v. Cole, supra, 33 Cal.4th at p. 1194.) The court also acted within its discretion in admitting the 2005 conviction to show a common design or plan. In both instances, appellant entered a retail establishment and hid merchandise in her pants. These common features are sufficient to support the inference that both crimes were committed pursuant to a common design or plan. (People v. Rodriguez (1970) 10 Cal.App.3d 18, 33-34 [prior thefts involving the same general type of item committed in the same general locale were properly admitted to show a common plan or scheme].)
The prior convictions were also admissible under Evidence Code section 352. Pursuant to that section, trial courts have the discretion to "exclude evidence 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." The prejudice contemplated by the statute "is not synonymous with 'damaging,' but refers instead to evidence that '"uniquely tends to evoke an emotional bias against [the] defendant"' without regard to its relevance on material issues. [Citations.]" (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Appellant's uncharged offenses were not significantly more inflammatory than the charged crimes, and the jury was properly instructed on the purposes for which it might consider the evidence. Moreover, presentation of the evidence did not consume a great deal of time. Considering all of the relevant factors, the court did not exceed the bounds of reason in concluding that the probative value of the uncharged crimes evidence was not substantially outweighed by its potential for prejudice. In any event, appellant fails to argue, much less establish, that it is reasonably probable the jury would have acquitted her on any of the charges had the challenged evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Marks (2003) 31 Cal.4th 197, 226-227 [recognizing that claims of error in excluding evidence under Evid. Code, § 352 are reviewed "under the 'reasonable probability' standard of Watson"].)
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.,