Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06-611
ROBIE, J.
A jury found defendant Jeffrey Steven Darneal guilty of second degree burglary of Walgreens (count one), petty theft of retail merchandise from Walgreens with a prior conviction (count two), and receiving stolen property from Rite Aid (count four). It acquitted him of petty theft of retail merchandise from Rite Aid (count three) and burglary of Rite Aid (count five). The trial court found that he had served two prior prison terms. He was sentenced to state prison for five years eight months.
On appeal, defendant contends: (1) his receiving stolen property conviction is not supported by sufficient evidence that the items he received from Rite Aid had been stolen; and (2) the upper term sentence for petty theft with a prior conviction violates Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. We shall affirm the judgment.
FACTS
At around noon on January 30, 2006, defendant walked into the Walgreens store on West Capitol Avenue in West Sacramento and spent about 45 minutes wandering around the store. During that time, he picked up cologne and makeup from the cosmetics counter and placed the items in pockets of his jacket. When he walked out of the store, the alarm sounded. Employees immediately stopped him outside. One of the Walgreens employees, who had been watching defendant inside the store, told him that she knew he had merchandise he had not paid for and asked him to come inside. Defendant complied and began taking items of merchandise out of his coat and backpack.
Walgreens employees examined the property recovered from defendant and determined that five items, worth approximately $110, belonged to their store.
Also recovered from defendant were approximately 31 items of makeup and other merchandise in their original packaging that evidently had been taken from the Rite Aid store across the street from Walgreens. That merchandise was valued at approximately $458.
When arrested, defendant had no cash, no credit cards, and no receipts from Rite Aid or Walgreens. When interviewed by police, defendant said that the makeup had been purchased by his girlfriend, Justina Kayhill, who had just dropped him off at Walgreens. The authorities were unable to verify the existence of anyone named Justina Kayhill. An officer asked defendant to contact Kayhill by telephone, but he did not reply.
Defendant testified on his own behalf that his girlfriend dropped him off at Walgreens and asked him to carry her backpack. He identified her as Justina, but he declined to state her last name and denied that it was Kayhill. He acknowledged that he had given the officer that name, but he claimed that he had made “a false statement.”
Defendant testified that the Walgreens security system sounded as he entered the store. A clerk scanned defendant’s backpack with a hand-held scanner and kept the backpack while he was in the store. Defendant went inside to price some razor blades. After about 15 minutes, he retrieved his backpack and left the store. As he walked out the door, the security system again sounded and he was detained.
DISCUSSION
I
The Conviction For Receiving Stolen Property Is Supported By Substantial Evidence
Defendant contends the evidence supporting his conviction of receiving stolen property is insufficient because Rite Aid employees could testify only that there had been a lot of recent thefts and could not state that the items in question had been stolen. We are not persuaded.
“‘To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.’” (People v. Carpenter (1997) 15 Cal.4th 312, 387, quoting People v. Johnson (1993) 6 Cal.4th 1, 38; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)
To sustain a conviction of receiving stolen property, the evidence must demonstrate that: (1) the property was received, concealed, or withheld by the accused; (2) such property had been obtained by theft or extortion; and (3) the accused knew that the property had been so obtained. (People v. Kunkin (1973) 9 Cal.3d 245, 249; People v. Grant (2003) 113 Cal.App.4th 579, 596.)
Defendant concedes that there was “overwhelming” evidence he stole five items from Walgreens. However, he claims there was insufficient evidence that the other approximately 31 items in his possession had been stolen from Rite Aid. He relies on the Rite Aid store manager’s testimony that no one saw him steal anything from Rite Aid; that the manager was unable to identify the items as having been stolen, rather than purchased; and that the manager was unable to determine whether the items passed through his store, as opposed to another Rite Aid store or another retailer. Defendant claims this evidence is deficient when compared to People v. Fiore (1959) 176 Cal.App.2d 536 (Fiore), in which serial numbers on merchandise recovered from the defendant matched the serial numbers on packaging still possessed by the victim. (Fiore, supra,at pp. 538-539.)
However, the foregoing portions of the manager’s testimony cannot be viewed in isolation; rather, the question of sufficiency of the evidence must be resolved in light of the record as a whole. (People v. Carpenter, supra, 15 Cal.4th at p. 387.) Thus, the Rite Aid manager also testified that the items recovered from defendant matched items that the store’s inventory system showed to be missing.
The inference that the items were stolen from Rite Aid is further supported by the fact that one item, a Mach razor, bore a security tag with the name Rite Aid. This evidence tends to refute the possibility, raised by the manager, that the item and potentially others came from a retailer other than Rite Aid.
The evidence also showed that defendant was detained with a large amount of cosmetics but no receipts, cash, or credit cards. Defendant notes that no law prohibits men from possessing cosmetics or requires them to possess receipts, credit cards, or change remaining from cash purchases. But the facts that defendant had no means of paying for the cosmetics and no evidence that he had done so lend further support to an inference that the merchandise was stolen.
The People contend, and we agree, that defendant’s “highly suspicious explanation of his mysterious ‘girlfriend,’” who supposedly had given him the cosmetics, lends further support to an inference that the cosmetics were stolen. Defendant’s refusal to give the girlfriend’s last name at trial supports inferences that he was the thief or, if not the thief as perhaps suggested by the verdicts, he knew the thief’s identity and further knew the items were stolen.
Thus the “record as a whole” (People v. Carpenter, supra, 15 Cal.4th at p. 387) shows that defendant possessed a large number of items in their original packages at the same time that he possessed similar items that he personally stole from Walgreens. Defendant had no credit cards, change, or receipts, and reasonable jurors could find that his explanation for his possession of the items was not credible. On this record, the jury could deduce that the disputed items came from Rite Aid and that they were stolen. Defendant’s conviction is supported by substantial evidence.
II
Imposition Of The Upper Term
Defendant contends his upper term sentence must be vacated and the case remanded for a new sentencing hearing in light of Cunningham v. California, supra, 549 U.S. ___ [166 L.Ed.2d 856]. We are not persuaded.
Defendant filed his supplemental opening brief on the Cunningham issue before the People filed their respondent’s brief. Curiously, neither the respondent’s brief nor the reply brief addresses Cunningham.
Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455], italics added.) Under this rule, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].)
The punishment for second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) is imprisonment in the county jail not exceeding one year or in the state prison (Pen. Code, § 461, subd. 2) for 16 months, or two or three years (Pen. Code, § 18). At the time of sentencing, the determinate sentencing law required the trial court to “order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (Pen. Code, § 1170, former subd. (b); see Stats. 2007, ch. 3, § 2 (SB 40), effective Mar. 30, 2007, to be repealed Jan. 1, 2009 [“the choice of the appropriate term shall rest within the sound discretion of the court”].)
The trial court imposed the upper term of three years after finding three circumstances in aggravation and no circumstances in mitigation. The circumstances in aggravation relied on by the court were: (1) defendant has many prior convictions; (2) he was on parole at the time of the offense; and (3) he has not performed satisfactorily on probation.
Defendant contends the trial court violated his right to a jury trial in imposing the upper term based on facts not admitted by him or found by a jury. We are not persuaded.
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court rejected a claim of Blakely error, concluding “that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, at p. 1244.)
In Cunningham v. California, supra, 549 U.S. ___ [166 L.Ed.2d 856], however, the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law does “violate[] a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, at p. ___ [166 L.Ed.2d at p. 864].)
On remand from the United States Supreme Court for reconsideration in light of Cunningham, the California Supreme Court recently held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [p. 17] (Black II).) The “prior conviction” exception “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 22.)
Here, one of the factors on which the court relied in imposing the upper term was defendant’s “many prior convictions.” Its conclusion is supported by the probation report which lists 24 prior convictions for defendant. Because this one aggravating factor made defendant eligible for the upper term, the trial court did not violate defendant’s right to a jury trial in imposing the upper term.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., BUTZ, J.