Opinion
NOT TO BE PUBLISHED.
Appeal from a judgment of the Superior Court of Los Angeles County, No. LA055587, John S. Fisher, Judge.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KLEIN, P. J.
Christopher Buckles (Buckles) appeals from the judgment entered following a jury trial which resulted in his conviction of petty theft with a prior (Pen. Code, § 666), and his admissions he had suffered two prior serious or violent felony convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served three prior prison terms (§ 667.5, subd. (b)). The trial court sentenced Buckles to four years in state prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Ivan Steven Valladares (Valladares) is a loss prevention supervisor at the Target store at 5711 Sepulveda in the San Fernando Valley. Valladares’s duties include detecting and apprehending shoplifters and interviewing dishonest employees.
At approximately 2:00 p.m. on April 16, 2007, Valladares was working with another loss prevention supervisor, Christina Robertson (Robertson). As Valladares walked down the store’s main aisle, he saw Buckles in the “infant’s department” with a woman and an “infant child in a car seat inside a shopping cart.” Buckles was conversing with the woman and “interacting with the child.” From approximately 12 feet away, Valladares saw the woman selecting “infant merchandise.” Because of the unusual amount of clothing that was being selected and placed in the cart, Valladares asked Robertson to go to the office and begin recording Buckles and his companion live on closed circuit television. In the interim, Valladares maintained radio contact with Robertson.
While Valladares continued to observe them, Buckles and the woman proceeded to the electronics department. Buckles entered the area where books and magazines are sold and the woman went to the aisle where the Ipod MP3 is displayed. The woman removed the infant clothing from its hangers, folded it and placed it in the shopping cart. Buckles then rejoined the woman and they walked from the electronics department to the sporting goods section of the store. There, the woman began to grab the baby clothing and place it in a diaper bag sitting in the main portion of the shopping cart. Buckles, who had a magazine in his hand, and the woman then went to the hardware department, where the woman continued to conceal clothing inside the diaper bag. With Buckles standing directly in front of her, the woman ripped price tags from some of the merchandise.
The couple proceeded to the automotive department, where the woman selected a Bluetooth headset and Buckles selected a Bluetooth speaker system for a car, a Swiss army knife and a car charger. Buckles removed a pocket knife from his right front pocket and cut open the packaging on the Swiss army knife. He then handed the package to the woman, who removed the knife and placed it in the diaper bag. Buckles also used his pocket knife to cut open the package for the Bluetooth speaker system, then handed the opened package to the woman who, after removing its contents and placing them in the diaper bag, left the empty package behind some other merchandise. Finally, the woman took the magazine Buckles had selected and placed it behind the baby, inside the car seat. At this point Buckles was standing “right next to” the woman, facing the shopping cart.
Valladares testified it was the Target store’s policy that if a shoplifter is armed with a knife or other weapon, the security officer is not to apprehend the individual. Instead, the police are called. As soon as Valladares saw Buckles remove a knife from his pocket, he radioed Robertson, informed her that Buckles was armed with a knife and directed her to telephone the police.
Valladares then watched as the couple approached the check-out stand. Buckles purchased a set of infant hangers. All of the other merchandise had been placed inside the diaper bag. Valladares watched as Buckles and the woman left the store and headed for a bank of elevators.
Valladares took the stairs to the parking structure. There, he saw Buckles and his female companion get into a two-toned Lexus. Buckles got into the driver’s seat and drove off.
While they waited for the police to arrive, Valladares and Robertson went to various departments in the store and collected the price tags the woman had removed from the clothing and the packaging she had placed behind store merchandise.
When police officers arrived, Valladares gave them the price tags, the empty packaging, a copy of the report of the incident and a copy of a video tape showing Buckles and the woman as they moved about the store. Valladares had watched the 26-minute video tape while a copy was being made for the police. The tape gave “a true and accurate depiction of the events that [Valladares had seen] occurring at the Target on April 16th, 2007[.]”
A copy of the video tape was played for the jury.
On April 17, 2007, Los Angeles Police Detective Dennis Derr (Derr) viewed the video tape of Buckles and his companion given to him by Valladares. Valladares had provided Derr with the license plate number of the two toned Lexus Buckles had driven out of the parking structure and, on April 18, Derr went to 10808 Tabor Street and left a business card. Later that day, Derr received a telephone call from an individual claiming to be Christopher Buckles. On April 23, Buckles reported to the police station, accompanied by a woman, Melody Pettit (Pettit). Pettit brought with her to the station a bag of merchandise she claimed she had taken from the Target store. Pettit told Derr that she had not planned on stealing anything, but that she had been “ ‘upset and not thinking.’ ” Pettit told the officer that “ ‘Christopher [Buckles] did not have any part in it’ ” and that “ ‘he was upset with [her] and told [her] not to.’ ” Pettit stated, “ ‘But I did not listen to him. He did not want me to get arrested.’ ” Finally, at some point, Pettit told Derr that “it was all her.”
On April 23, 2007, Valladares went to the Van Nuys police station where he identified the merchandise Buckles and his companion had taken from Target. Valladares took the merchandise back to the store and scanned each item. In total, Buckles and his female companion had taken $329.45 worth of merchandise.
2. Procedural history.
At pre-trial proceedings held on August 20, 2007, it was determined that although Buckles’s case was a “[T]hree [S]trikes case on paper,” the People would proceed as though the present case was Buckles’s second strike. Counsel for Buckles then made a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike the remaining prior strike conviction. Counsel first argued that all of Buckles’s convictions were remote. Counsel indicated that, “since his conviction on the [last] serious felony[, a burglary,] he has had no convictions in the past approximately six and-a-half years.” As to a burglary committed in 1995, counsel asserted “[it] was alleged to have been committed with his father. The victim of that case told the probation officer that he felt that [Buckles] was a decent kid with a really messed up father . . . .” After indicating that Buckles was “not going to go away for 25 to life if . . . convicted,” the trial court denied the motion.
While he was incarcerated and awaiting trial, Buckles’s infant daughter died. Prior to trial, the prosecutor made a motion pursuant to Evidence Code section 402 to preclude any evidence of the death of the child. The prosecutor argued the evidence was highly prejudicial and had no probative value. The trial court agreed the evidence should be excluded as it was not relevant to the case.
For the limited purpose of preventing the jury from considering whether he had suffered a prior felony conviction, Buckles agreed to admit his prior convictions. After waiving his right to a court or jury trial, his right to confront and cross-examine the witnesses against him, his right to present a defense and his privilege against self-incrimination, Buckles admitted having previously been convicted of first degree burglary in 1990, grand theft in 1992, and first degree residential burglary in 1996. The trial court then addressed Buckles and stated, “Sir, in the event you are convicted there’s a second stage and that is the litigation of the priors. [¶] So you have a right to a jury trial on the issue of the priors for purposes of – in other words, if they’re found true then extra punishment could be rendered because of that. [¶] So, do you understand you have a right to a jury trial on these same priors for that purpose?” Buckles responded, “Yes.” The trial court then asked Buckles, “Do you give up your right to a jury to make that determination of whether these priors are true so that a judge could do it . . . ?” Buckles again responded, “Yes.”
Prior to the presentation of evidence, the prosecutor indicated he wished to show as part of his case-in-chief a video from a surveillance camera at the Target store where the alleged theft took place. However, the security agent “who made the observations from the video room and created the video [was] out of town.” When the trial court asked the prosecutor how he intended to have the video admitted, the prosecutor indicated it was his belief the security guard who remained on the floor of the store “would be able to authenticate the video because he was watching [the] events live.” The trial court responded, “I don’t see it as a big problem. The video speaks for itself. What’s on the video [is] on the video. [¶] It’s just a question of making sure the video represents the date and time and location of events it seems to me. That’s the authentication.” Defense counsel was concerned that there might be “angles and things taking place that this witness can’t say he saw because he didn’t see them.” The trial court noted defense counsel’s objection, but stated that, based on the prosecutor’s offer of proof, it would allow the video into evidence.
After the jury was instructed, but before it started its deliberations, one of the jurors sent the following note to the trial court: “ ‘Can I know the relationship between the defendant and Ms. Pettit?’ ” The trial court responded by stating, “The answer is the relationship, if any, between the two is not part of the evidence in this case.”
At approximately 1:30 p.m. on August 23, 2007, the jury returned with a verdict finding Buckles guilty of petty theft in violation of section 666.
After again waiving his right to a court trial, his right to confront and cross-examine the witnesses against him, his right to present a defense and his privilege against self-incrimination, Buckles admitted for purposes of the Three Strikes law and alleged “prison priors” that in July 1996 he had been convicted of first degree burglary in violation of section 459, that in November 1992 he had been convicted of grand theft in violation of section 487, subdivision (a), and that in November 1990 he had been convicted of first degree burglary in violation of section 459.
Prior to sentencing, defense counsel renewed his Romero motion and asked the court to strike Buckles’s remaining Three Strikes prior conviction. The trial court again denied the motion, but sentenced Buckles as though he had suffered only one prior “strike.” The trial court imposed the middle term of two years in prison, doubled to four years. The trial court then struck the one year “prison prior” enhancements in the interests of justice pursuant to section 1385. The trial court ordered Buckles to pay a $200 restitution fine (§ 1202.4, subd. (b)), a $200 stayed parole revocation restitution fine (§ 1202.45), a $20 court security fee (§ 1465.8, subd. (a)(1)) and a $20 “DNA fee.” Buckles was given presentence custody credit for 195 days, consisting of 130 days actually served and 65 days of good time/work time.
Buckles filed a timely notice of appeal on August 24, 2007.
This court appointed counsel to represent Buckles on appeal on November 7, 2007.
CONTENTIONS
After examination of the record, appointed appellate counsel filed in this court an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice dated March 3, 2008, the clerk of this court advised Buckles to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
APPELLATE REVIEW
We have examined the entire record and are satisfied Buckles’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.