Opinion
A131094
11-03-2011
THE PEOPLE, Plaintiff and Respondent, v. RICKEY BURNETT DELONEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. VCR200815)
Defendant was found guilty of second degree commercial burglary (Pen. Code, § 459), petty theft with a prior conviction (§ 666), and failure to disclose the origin of a recording or an audiovisual work (§ 653w). On appeal, defendant claims insufficient evidence supported his petty theft and burglary convictions. We affirm the judgment.
All unspecified code sections refer to the Penal Code.
BACKGROUND
An information charged defendant with second degree commercial burglary (§ 459), petty theft with one prior conviction (§ 666), and failure to disclose the origin of a recording or audiovisual work (§ 653w). The information also alleged that defendant had served four prior prison terms. (§ 667.5, subd. (b).)
On January 20, 2009, defendant moved to set aside the information asserting that he had been committed without probable cause. The trial court denied this motion on January 30, 2009. On March 1, 2010, defendant filed a motion to suppress evidence, which the court denied on August 2, 2010.
The bifurcated trial began on August 11, 2010, and the jury heard the evidence regarding the commission of the three alleged crimes. Tom Sot, the assistant manager of a Walgreens store in Vallejo, testified. Sot reported that there were 18 security cameras in Walgreens. He stated that about 1:30 p.m., on November 22, 2008, he saw defendant in the store at aisle number six, which was in the middle of the store. Sot noticed that defendant did not have anything in his hands; Sot did not see a cart nearby. Sot walked to the warehouse, and observed defendant walking towards the camera department. A short time later, Sot went to the camera department in response to the cashier's request that he handle a refund; Sot did not see defendant.
At trial, Sot testified that he did not see defendant enter the store. However, at the preliminary hearing, he claimed that he saw defendant when he entered the store and asserted that defendant did not have anything in his hands at that time.
A few minutes after completing the refund transactions in the camera department, Sot observed defendant walking towards the front of the store with a shopping cart and a green Walgreens "stuffer" bag in the cart. Defendant was standing in the cashier's line. Defendant looked at Sot. Defendant remained in the line for about three to four minutes. When it was defendant's turn and the cashier was ready for him, defendant walked past the cashier and out the front door of the store without making any effort to pay for anything. At that point, Sot believed that defendant had taken Walgreens's merchandise without paying for it. Sot admitted that a person had to go through the cashier's aisle in order to exit the store.
Sot went to the store's front door and said to defendant: "Excuse me, sir. Could I have my bag." Sot repeated his request for defendant to return the Walgreens bag and defendant, according to Sot, responded as follows: "He walked to—back to the store with his chest up, you know, his hands on his hip toward me, back." He explained that defendant's chest was "puffed up." Sot returned to the store and called the police.
Officer Joshua Caitham arrived at the Walgreens and observed a video taken by one of the store's security cameras. He saw a portion of a video showing defendant waiting in line and leaving the store. Caitham left the store to see if he could find defendant.
Officer Caitham spotted defendant at a bus stop approximately two blocks from the store. Defendant was standing next to a blue tote bag. Caitham told defendant that he was investigating a theft at Walgreens and that defendant matched the description of the person he had seen on the video. Defendant responded that he had not been to Walgreens and that he had just come from a friend's house. Caitham saw a green duffel bag hanging on the fence behind defendant. He looked inside the green bag and found five packages of recordable DVDs, two packages of DVD sleeves, and a portable player. He brought the merchandise back to Sot.
Sot referred to the bag as a green "stuffer" bag and Officer Caitham called it a green duffel bag.
When Officer Caitham brought the green duffel bag with the merchandise back to Sot, Sot indicated that the items were sold at Walgreens. Sot testified that the DVDs were kept on a wall in the camera department, and that he noticed that the shelves contained empty spaces. Sot took each DVD and scanned it using the UPC bar coding. The scanning indicated that all of the DVDs and DVD sleeves removed from the green duffel bag were Walgreens's property. The scanning, however, did not show whether the items had come from this particular Walgreens or another Walgreens in Vallejo. Sot told Caitham that the portable player did not belong to Walgreens.
Officer Caitham testified that Sot did not tell him that the shelves contained empty spaces.
It is unclear whether Sot scanned the merchandise before or after he had identified defendant. Sot testified that he did it prior to identifying defendant, but Officer Caitham testified that Sot first identified defendant and then scanned the merchandise.
Sot stated that the Walgreens "stuffer" or duffel bags were kept on aisle number seven. The green "stuffer" bag that defendant had possessed did not have a UPC bar code on it. It did, however, have a white string hanging on it, which Sot testified was used to attach the bar code. Sot noticed a bar code tag on the floor in the aisle where the green "stuffer" bags were located. Sot testified that he gave the tag to Caitham, but the officer indicated that he never received the tag.
Walgreens had a security scanner by the exit and DVD packages should have had security tags on them. When defendant left the store, no alarm sounded. Sot testified that he was not sure whether there were any security tags on the DVDs. He claimed that the cashier was responsible for attaching the tags and surmised that the cashier must have forgotten to do so.
Officer Caitham took Sot to the location where he had found defendant. Caitham asked Sot if defendant was the person who had refused to return the Walgreens bag to him, and Sot identified him as the person he had confronted just outside the front door of the store.
A store video, which Officer Caitham obtained from Walgreens, was admitted into evidence, along with still shots from the video. Caitham was told there was no video of defendant in the aisle containing the DVDs because the camera viewing that aisle was pointed towards the cashier line. There was a video of defendant entering the store. It showed him pushing a cart with a bag in it. Sot noted that Walgreens did not have a policy of asking people to check bags prior to entering the store, and agreed that he would not have called the police had he known that defendant had entered the store with a bag in his cart. After viewing the photographs and video of defendant when he entered and exited the store, Sot testified that it appeared to him that defendant left Walgreens with more items in his cart than he had when he first entered.
This video and the photographs are not in the record on appeal.
At trial, Officer Caitham was shown a video and a photograph of defendant pushing a shopping cart into the store. Caitham noticed a black object in the cart. When shown a photograph depicting defendant's departure from the store, Caitham noted that defendant's shopping cart contained a green duffel bag on top of the black object.
At the police station, Officer Caitham examined the blue bag. It contained 240 recordable DVDs that were marked with a pen with numbers or initials such as "007" or "BM." He randomly selected five DVDs to play; they were movies. "BM" was a "Batman" movie and "007" was a James Bond movie that was playing in the theaters at the time of the incident. Roger Short, a licensed private investigator, testified as an expert in the identification of counterfeit DVDs and the possession of them for sale. He opined that none of the 240 DVDs was a legitimate copy that had been authorized for duplication. He observed that all of them had been burned, and were labeled with a permanent marker showing the movie's initials rather than their title. He believed that the movies were for sale because the number of copies of each movie was inconsistent with someone who possessed a copy of a movie for personal use. In addition, the packaging showed that they were intended for sale.
On August 16, 2010, the jury convicted defendant on all three counts.
On September 7, 2010, the court held a trial on the prior allegations. The court found the prior theft related conviction and all four prior prison terms to be true.
Defendant moved for a new trial on the basis of newly discovered evidence and ineffective trial counsel. The trial court denied the motion.
On January 24, 2011, the trial court found that there was "one single objective[.]" The court explained, "The underlying intent and objective of [defendant], seems to the court, was to pirate these DVDs and then to sell those[.]" It sentenced defendant to the upper term of five years for the failure to disclose the origin of a recording or audiovisual work and consecutive sentences of one year for each of the four prior prison terms, for a total of nine years. The court sentenced defendant to the upper term of three years for the burglary and the upper term of three years for the petty theft with a prior, and stayed those sentences pursuant to section 654.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends that insufficient evidence supported the petty theft with one prior conviction and burglary charges and therefore his convictions violate his constitutional right to due process. Defendant does not mount any challenge to his conviction for failure to disclose the origin of a recording or an audio-visual work, the finding of a prior theft, or the finding that the allegation of four prior prison terms was true.
Defendant's sentences on the theft and burglary were stayed pursuant to section 654. Thus, his nine-year sentence was based on the offenses not challenged in this appeal.
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A criminal conviction that is not supported by substantial evidence violates the Fourteenth Amendment to the United States Constitution and/or the due process clause of article I, section 15 of the California Constitution. (People v. Rowland (1992) 4 Cal.4th 238, 269.) In reviewing a challenge to the sufficiency of the evidence, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "If the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) "Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom." (People v. Dooley (2010) 189 Cal.App.4th 322, 326.) "[W]e cannot reverse on the ground of insufficient evidence unless there is no reasonable hypothesis supporting the verdict." (People v. Rivera (2003) 109 Cal.App.4th 1241, 1244.)
Entering a commercial building with the intent to commit grand or petty larceny is second-degree burglary. (§§ 459, 460; People v. Woods (1998) 65 Cal.App.4th 345, 347.) Taking personal property belonging to another with intent to steal, and carrying it away, is theft. (People v. Davis (1998) 19 Cal.4th 301, 305.) Burglary may be proved by circumstantial evidence. (See, e.g., People v. Hinson (1969) 269 Cal.App.2d 573, 577.)
Here, the jury's verdicts are supported by substantial evidence in the record. According to the evidence at trial, defendant left Walgreens with a green Walgreens bag in his cart. After standing in line for the cashier, he left when it was his turn without stopping to have the cashier ring up any merchandise. Both Sot and Officer Caitham testified that photographs and a video showed that defendant entered the store with a cart containing a bag. However, they agreed that the video and photographs indicated that defendant's cart contained additional items when he exited Walgreens. After defendant left the store, Sot asked him to return the Walgreens bag. Rather than providing any explanation for having the bag, defendant walked back to the store with his chest puffed up, and Sot retreated. Later, when confronted by Officer Caitham, defendant denied ever being in the Walgreens store. This testimony was contradicted by the video and photographs and reflected a consciousness of guilt. (See, e.g., People v. Barnwell (2007) 41 Cal.4th 1038, 1057.) The green duffel bag from Walgreens contained DVDs and DVD jackets, and Sot determined after scanning the bar tags that this merchandise was from a Walgreens store. The green duffel bag did not have a bar tag, but Sot found a bar code tag on the floor in the aisle where Walgreens had these bags and the green bag in defendant's possession still had the string on it that was used to attach the bar code tag. This evidence was sufficient to support the jury's findings that defendant entered Walgreens with the intent to steal DVDs and he did, indeed, steal DVDs and a green duffel bag.
Defendant contends the record contains no direct evidence that any theft from Walgreens occurred. However, the crimes of burglary and petty theft with one prior can be proven with circumstantial evidence. (See, e.g., People v. Hinson, supra, 269 Cal.App.2d at p. 577.) Defendant maintains that the evidence against him was weak and inclusive, and then proceeds to draw inferences from the evidence that would have supported his acquittal. Defendant argues, for example, that Sot's testimony that the shelves containing DVDs had empty spaces did not establish that defendant took the DVDs. He asserts that Sot never communicated this information to Officer Caitham and never testified that he had made sure the shelves were completely full prior to defendant's entering the Walgreens. He also claims that scanning the merchandise showed that the DVDs were from Walgreens, but that did not establish that they had not been purchased earlier or that they were not from another Walgreens in Vallejo. He emphasizes that the security device sensor at the entrance never sounded the alarm when he left and the DVDs were supposed to have security devices on them.
Similarly, defendant attacks Sot's credibility in an attempt to establish that Sot's testimony did not constitute substantial evidence. He argues that Sot's testimony "lacked credibility as a matter of law[.]" Sot's testimony was not so inconsistent as to make it incredible as a matter of law. "The detailed examination of this witness, both on direct and cross, produced the result which such an examination obtains with respect to the testimony of many witnesses. Seeming inaccuracies and inconsistencies appear, but these do not entirely destroy the credibility of the witness as a matter of law. The issue remains as one for the jury to determine." (People v. Miller (1960) 185 Cal.App.2d 59, 68.)
Defendant is essentially asking this court to second-guess the jury and to infer from the evidence an "innocent" explanation for his actions. As an appellate court, however, we draw all inferences in support of the jury verdicts.
The jury considered the evidence, which may have been somewhat inconsistent, but was not weak. As already stressed, a rational inference from the evidence was that defendant had removed the DVDs and green duffel bag from Walgreens. The jury also was advised regarding the inconsistencies in Sot's testimony. In closing argument, defendant's counsel argued that Sot was not a reliable witness and told "13 different lies." Trial counsel stressed the inconsistencies in Sot's testimony. It was up to the jury to decide what portions of Sot's testimony were credible. Furthermore, the jury heard not just Sot's testimony, but viewed the video and photographs and were able to assess the accuracy of the testimony of both Officer Caitham and Sot that the video and photographs showed that, although defendant entered the store with a black object in his cart, defendant left the store with more items in his shopping cart. When defendant exited the store, the cart, according to Caitham, now had a green duffel bag on top of the black object.
Assessing the credibility of witnesses and the persuasiveness or weight of the evidence is to be decided by the jury. (See, e.g., People v. Thornton (1974) 11 Cal.3d 738, 754.) We conclude that the record contained substantial evidence to support the jury's verdicts.
DISPOSITION
The judgment is affirmed.
Lambden, J. We concur: Kline, P.J. Richman, J.