Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA072366, James B. Pierce, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, A. Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and appellant Johnny L. Colley (defendant) was convicted of petty theft with a prior in violation of Penal Code section 666. Defendant was found to have suffered a prior conviction under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and five prior convictions within the meaning of section 667.5, subdivision (b). The trial court struck the prior conviction under the Three Strikes law and sentenced defendant to seven years in state prison. On appeal, defendant contends that there is insufficient evidence to support his conviction and that the trial court erred in failing to instruct on the lesser included offense of attempted petty theft. We affirm.
All statutory citations are to the Penal Code unless otherwise noted.
BACKGROUND
The Warehouse Shoe Sale store in Long Beach has several rows of shelves with boxes of shoes on them. Customers of the Warehouse Shoe Sale store may help themselves by trying on shoes and walking around to see how they feel. Store employees are available to assist customers if needed.
About 6:30 p.m., on November 14, 2006, defendant entered the Warehouse Shoe Sale store. Paul Nwofili, a loss prevention officer at the store, was standing inside the store at the store’s exit and observed defendant enter. Nwofili was wearing a dark blue uniform shirt as, apparently, were all store employees, and a badge. Defendant appeared to be “tipsy” and was wearing old shoes. Defendant walked to a shoe display aisle, sat down, selected a box of shoes from a shelf, and put on a pair of new shoes. Defendant placed his old shoes in the box and left the box by the shelf. Defendant got up and walked straight toward the exit. He did not walk to a nearby cash register, which would have required him to walk in a different direction. Defendant did not pay for the pair of new shoes.
Nwofili testified that he stopped defendant as defendant was “making for the exit.” According to Nwofili, “If I didn’t stop him, he was walking out the door.” Defendant had not, however, left the store with the shoes. Nwofili asked defendant if he needed help. Defendant said he did not. Nwofili asked defendant if he had a receipt. Defendant said he did not. Nwofili identified himself as a loss prevention officer, stated that the shoes belonged to the store, and told defendant that he could not “walk out with the shoe like that.” Defendant said, “I know you seen me already. You been watching me all day.” Defendant then returned to the shelf where his old shoes were and put on his old shoes.
Nwofili took defendant to a store office so that Nwofili could report the incident. Nwofili asked defendant why he had put on the new shoes and tried to walk out of the store. Defendant responded, “I was just being bad.” Nwofili recorded defendant’s identifying information. Nwofili’s boss arrived at the office and patted down defendant. Defendant did not have any money on him. Nwofili’s boss stated that he was going to call the police.
Long Beach Police Officer Mark Mesun arrived at the store about 7:00 p.m. Officer Mesun testified that defendant was wearing a pair of new shoes, and that there was an older pair of shoes in a shoe box. (Although Nwofili testified defendant had changed back to his old shoes.) Officer Mesun took defendant to jail and booked him. As part of the booking process, Officer Mesun recovered various items from defendant, but he did not recover a wallet or any money. Officer Mesun did not remember recovering any credit or ATM cards, or an EBT card – a government issued card that “many stores might accept.” Officer Mesun acknowledged that “people make mistakes” and that there could have been an EBT card.
DISCUSSION
I. Sufficient Evidence Supports Defendant’s Conviction
Defendant contends that his conviction for petty theft with a prior is not supported by sufficient evidence. We disagree.
“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. Young (2005) 34 Cal.4th 1149, 1175.)
Section 666 provides, “Every person who, having been convicted of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.” Defendant stipulated that he had suffered two prior qualifying theft convictions and that he had served prison terms for those convictions. Accordingly, the jury was instructed only on the theft portion of the offense.
The trial court instructed the jury with Judicial Council of California, Criminal Jury Instructions, CALCRIM No. 1800 as follows:
“The elements of theft by larceny are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. [Citations.] The act of taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property. [Citation.]” (People v. Davis (1998) 19 Cal.4th 301, 305, footnotes omitted.)
“The completed crime of larceny – as distinguished from an attempt – requires asportation or carrying away, in addition to the taking. [Citations] [¶] The element of asportation is not satisfied unless it is shown that ‘the goods were severed from the possession or custody of the owner, and in the possession of the thief, though it be but for a moment.’ Hence, there can be no larceny when the thing that the defendant attempts to take is fastened or attached to some part of the owner’s premises or property. [Citations] [¶] Severance followed by the slightest movement away from the place of taking is sufficient; that amount and the distance are immaterial. [Citations.]” (2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 15; People v. Khoury (1980) 108 Cal.App.3d Supp. 1, 4.)
Defendant contends that the evidence fails to establish the last three elements of theft by larceny set forth in People v. Davis, supra, 19 Cal.4th at page 305—a taking by means of trespass, the intent to steal, and asportation. Defendant argues that the evidence does not “indicate” that he took the shoes from the store’s possession or that he attempted to leave the store. In support of his argument, defendant relies on evidence that the store encouraged customers to try on shoes and walk around in them, customers could ask any store employee for help, and Nwofili was wearing the same dark blue uniform shirt as other employees. Thus, defendant reasons, there was no evidence that “indicates” that he “was doing anything other than trying on the shoes for comfort, as the store encourages, and approaching an employee for help, as the store also encourages.” There is evidence that does not support defendant’s position.
The evidence demonstrates that when defendant put the new shoes on his feet and walked to the exit, he had taken possession of the shoes without the store’s consent and with the intent to steal the shoes. (See People v. Davis, supra, 19 Cal.4th at p. 305.) The evidence shows that defendant put on a pair of new shoes and placed his pair of old shoes in the empty shoe box. Defendant then walked to the store’s exit, leaving the shoe box containing his old shoes behind. Defendant had no money, credit cards, or ATM cards with which to purchase the shoes. The loss prevention officer testified that he stopped defendant as defendant was “making for the exit,” and that if he had not stopped defendant, defendant “was walking out the door.” The loss prevention officer asked defendant if he needed help. Defendant said he did not. When the loss prevention officer asked defendant why he had put on the new shoes and tried to walk out of the store, defendant responded, “I was just being bad.” This evidence established the elements of a taking without the owner’s consent and the intent to steal.
Indeed, the loss prevention officer’s testimony supports the inference that defendant not only walked up to the exit, but that he had opened the exit door in an attempt to leave. The officer testified that he stopped defendant as defendant “was about walking out of the store.” In describing the store’s exit door, the officer, apparently referring to defendant, said, “You pull it open. . . . You pull it yourself. He open it.”
To establish asportation, the prosecution did not have to show that defendant removed the store’s property – the shoes – from the store. (People v. Shannon (1998) 66 Cal.App.4th 649, 654 [“[O]ne need not remove property from the store to be convicted of theft of the property from the store. [Citations.] One need only take possession of the property, detaching it from the store shelves or other location, and move it slightly with the intent to deprive the owner of it permanently. [Citation.]”]; People v. Khoury, supra, 108 Cal.App.3d Supp. at pp. 4-5.) In People v. Khoury, the defendant took a box purportedly containing only a chandelier to a store’s checkstand. (People v. Khoury, supra, 108 Cal.App.3d Supp. at p. 3.) An alert checker noticed that the box was loosely taped and told the defendant that he would have to open the box and check its contents. (Ibid.) The defendant walked back into the store, leaving the box at the checkstand. (Ibid.) When the box was opened, it was found to contain $900 worth of store items, but no chandelier. (Ibid.) The court held the evidence was sufficient to establish asportation. (Id. at pp. 4-5.) In this case, asportation was established when defendant put on the shoes and walked toward the exit with the intent to leave the store without paying for the shoes.
II. The Trial Court Properly Did Not Instruct The Jury On Attempted Petty
Theft
Defendant contends that the trial court had a sua sponte duty, based on the evidence, to instruct the jury on attempted petty theft as a lesser included offense to petty theft. The trial court properly instructed the jury.
“In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. [Citation.] This obligation includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Barton (1995) 12 Cal.4th 186, 200-201 [a trial court need instruct on a lesser included offense only when there is substantial evidence, “not when the evidence is ‘minimal and insubstantial.’”) “We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
As with his insufficient evidence argument discussed above, defendant contends that because there are questions as to the sufficiency of evidence supporting the last three elements of theft by larceny set forth in People v. Davis, supra, 1 Cal.4th at page 305 – a taking by means of trespass, the intent to steal, and asportation, the trial court had a sua sponte duty to instruct on attempted petty theft. Defendant reasons that “a reasonable jury, properly instructed, may have concluded that an attempt took place, but that it was not consummated; that Nwofili interrupted what could very well have been an act of simply trying the shoe out for comfort, but could have developed into asportation had appellant walked out the door. Prior to that act by Nwofili, there was nothing to indicate that appellant was doing anything wrong.”
The jury was not presented with substantial evidence from which it could have ascertained that defendant committed attempted petty theft, instead of petty theft. (See People v. Breverman, supra, 19 Cal.4th at p. 162; People v. Barton, supra, 12 Cal.4th at pp. 200-201.) As discussed above, the evidence shows that defendant put on a pair of new shoes and walked to the exit of the store without the means, or the intention, to pay for them. Such evidence established the elements of a taking without the consent of the owner and the intent to steal. As discussed above, defendant’s movement of the shoes from the shoe display area to the store’s exit with the intent to steal the shoes was asportation. (People v. Shannon, supra, 66 Cal.App.4th at p. 654; People v. Khoury, supra, 108 Cal.App.3d Supp. at pp. 4-5.) If, as found by the jury, the defendant had the intent to steal, he committed theft. There was no basis for a finding of attempted theft. Accordingly, the trial court properly did not instruct the jury on attempted petty theft.
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.
“The defendant is charged in Count 1with petty theft by larceny.
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant took possession of property owned by someone else;
“2. The defendant took the property without the owner’s or owner’s agent’s consent;
“3. When the defendant took the property he intended (to deprive the owner of it permanently/or to remove it from the owner’s or owner’s agent’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property);
“AND
“4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief.
“An agent is someone to whom the owner has given complete or partial authority and control over the owner’s property.
“For petty theft, the property taken can be of any value, no matter how slight.”