Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06WF2885, Patrick Donahue, Judge.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Sc hons, Assistant Attorney General, Marissa Paranoia, Meagan J. Beale and Arlene A. Vidal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant David Bradley Dorine appeals from a judgment entered after a jury found him guilty of theft, the trial court found true the allegations he had served five prior prison terms, and defendant admitted he had been previously convicted of 17 theft related offenses. Defendant challenges the sufficiency of the evidence he intended to permanently deprive the owner of merchandise defendant took from a clothing store without paying for it. Defendant also contends the trial court prejudicially erred by failing to instruct the jury, sea sponge, on flight under Penal Code section 1127c. (All further statutory references are to the Penal Code.)
We affirm. The evidence showed defendant walked into a store, put on a shirt from the store, and walked out of the store without paying for the shirt. The evidence further showed he initially ignored a store employee who asked him whether he had purchased the shirt, eventually admitted to the employee he had not paid for the shirt, and refused to relinquish the shirt until the employee physically detained him. The record therefore contains sufficient evidence defendant intended to permanently deprive the store owner of the shirt.
Even assuming the trial court erred by failing to instruct the jury, sea sponge, on flight as indicating defendant’s consciousness of guilt, any such error was harmless because the jury could not have reasonably relied on evidence of defendant’s flight as the sole evidence of his guilt.
Background
At 5:00 p.m. on November 12, 2006, Christopher Olaires was working at Huntington Surf and Sport when he noticed defendant browsing in the store’s men’s section. As he watched defendant walk out of the store, Olaires saw defendant was wearing one of the store’s button-up flannel shirts lined in sheep-like fur material; he saw a sensor attached to the back of the shirt’s collar. Olaires did not see defendant make an attempt to pay for the shirt at any of the cash registers. Defendant walked between Olaires and the cash register as he left the store.
Olaires told a coworker that “someone was stealing,” and followed defendant out of the store. Outside the store, Olaires saw defendant traveling southbound going “faster than a walk.” Olaires yelled to defendant, “hey,” but he did not respond. Olaires again yelled at defendant, saying something to the effect of “hey, did you pay for that jacket.” Defendant did not respond and continued walking away.
Ola ires caught up to defendant and again asked him if he had paid for the shirt. Defendant said, “no.” Ola ires grabbed defendant’s arm; defendant continued to try to walk away even as Ola ires was holding onto his arm. Other store employees approached defendant. He took off the shirt, either handed it to one of the employees or dropped it to the ground, and started to run across the street. Ola ires followed defendant and tried to grab him; defendant tried to shake him off. Ola ires grabbed defendant’s shirt and defendant fell down. Ola ires and other store employees had defendant sit on a curb until the police arrived.
Officer William Studebaker of the Huntington Beach Police Department testified that when he arrived on the scene, defendant was detained on the curb. Studebaker stated he observed signs defendant was intoxicated. Defendant was unsteady on his feet. Studebaker detected the odor of alcohol on defendant’s breath. He observed defendant’s eyes were bloodshot and watery; his pupils were dilated. Studebaker testified, however, that defendant was coherent, provided identifying information, and did not appear to have trouble answering Studebaker's questions.
Defendant was charged in an information with one count of committing a theft, after having been previously convicted of theft, in violation of sections 666, 484, subdivision (a), and 488. The information further alleged defendant had been previously convicted of 17 theft-related crimes and had served five separate prior prison terms within the meaning of section 667.5, subdivision (b).
Before trial, defendant admitted the 17 prior conviction allegations. The jury found defendant guilty as charged. The trial court found the prior prison term allegations to be true. The court sentenced defendant to a total prison term of seven years, by imposing the middle term of two years for the charged offense, plus one year for each of defendant’s five prior prison terms. Defendant appealed.
Discussion
I. Substantial Evidence Supported Defendant’s Conviction for Petty Theft.
Defendant argues his conviction must be reversed because there was insufficient evidence he had the specific intent to permanently deprive the store’s owner of the shirt. We disagree.
“‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support’” the conviction. (People v. Colin (1998) 18 Cal.4th 297, 331.)
In order to prove theft, the prosecution was required to show defendant intended to permanently deprive another of property or “to take the property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment.” (People v. Avery (2002) 27 Cal.4th 49, 52.)
Here, defendant went into a store, put on a shirt, walked out of the store without paying for it, and ignored store employees’ efforts to stop him. In response to Solitaires question about whether he had paid for the shirt, defendant simply answered, “no.” After defendant was outnumbered by store employees and Ola ires had grabbed his arm, defendant removed the shirt and attempted to run away. Substantial evidence therefore supported the jury’s implied finding defendant intended to permanently deprive the store owner of the shirt. We find no error.
II. The Trial Court’s Failure to Instruct the Jury on Flight Constituted Harmless Error.
Defendant contends the trial court erred by failing to instruct the jury, sea sponge, on flight pursuant to section 1127c, which provides: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given.”
CALCRIM No. 372 sets forth the requirements of section 1127c as follows: “If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant fled [or tried to flee], it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled [or tried to flee] cannot prove guilt by itself.”
In People v. Abilene (2007) 41 Cal.4th 472, 521 522, the California Supreme Court stated: “We have construed section 1127c ‘as mandating a rule that if there is evidence identifying the person who fled as the defendant, and if such evidence is relied on as tending to show guilt, then a flight instruction is proper.’ [Citation.] ‘A flight instruction is proper whenever evidence of the circumstances of [a] defendant’s departure from the crime scene... logically permits an inference that his movement was motivated by guilty knowledge.’” In People v. Carter (2005) 36 Cal.4th 1114, 1182, the California Supreme Court stated: “Section 1127c requires a trial court in any criminal proceeding to instruct as to flight where evidence of flight is relied upon as tending to show guilt.” (See People v. Williams (1960) 179 Cal.App.2d 487, 491 [holding the trial court has a duty to instruct the jury on flight, sea sponge].)
The Attorney General concedes the trial court had a sea sponge duty to instruct the jury on flight.
Here, Ola ires described defendant’s flight from the store. The prosecutor relied on defendant’s flight to prove defendant’s guilt by eliciting such testimony and by arguing to the jury that defendant was “trying to get away” and that “[w]hen [defendant] gives back that shirt and runs away, he is fleeing from there, consciousness of guilt. He knows what is going on.”
Even assuming the trial court erred by failing to instruct the jury on flight, any such failure was harmless. In People v. Williams, supra, 179 Cal.App.2d at page 491, the appellate court concluded, “we do not believe that failure to give [a flight] instruction was harmful to [the defendant]. Rather do we believe that its omission was more favorable than harmful to him.” Similarly, in People v. Roy (1971) 18 Cal.App.3d 537, 551, disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 32, the appellate court concluded the trial court’s failure to instruct on flight was harmless, observing such an instruction “could have been more helpful to the prosecution than to the defendant.”
Indeed, most cases addressing error in connection with a flight instruction involve the defendant arguing the trial court erred by giving an instruction on flight as indicative of a consciousness of guilt. In People v. Sheldon (1967) 254 Cal.App.2d 174, 181, which is one of the handful of cases in which the defendant contended the trial court erred by failing to give a flight instruction, the appellate court concluded: “The evidence of [the defendant]’s guilt, entirely apart from the evidence regarding his flight, was overwhelming. Under the circumstances the court’s failure to instruct the jury on flight could not have had any effect upon the jury’s ultimate determination.”
Here, had the jury been instructed on flight, it would have been told that evidence of defendant’s flight is insufficient in itself to establish his guilt but that flight may be considered in deciding defendant’s guilt or innocence. The jury was presented with strong evidence of defendant’s guilt independent of the evidence of his flight. The jury undoubtedly relied on such evidence, which included Solitaires testimony defendant put on a shirt belonging to the store, walked out of the store without paying for it, and later admitted to Ola ires that he had not paid for it. On this record, we cannot conclude the jury found defendant guilty based on the evidence of his flight. Therefore, to the extent the trial court erred by failing to instruct on flight, sea sponge, any such error was harmless.
Disposition
The judgment is affirmed.
WE CONCUR: ARONSON, ACTING P. J., IKOLA, J.