Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. No. SCUKCRCR0674903
Jones, P.J.
A jury convicted appellants Dolores Marie Duncan and Cruz D. Martinez (collectively, appellants) of second degree burglary (Pen. Code, §§ 459, 460, subd. (b) ). On appeal, Duncan contends the trial court erred in admitting incriminating statements she made to a law enforcement officer without being advised of her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Martinez argues that the court erroneously instructed the jury regarding burglary and theft. We affirm.
Unless otherwise noted, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The Incident
On the afternoon of December 7, 2006, Douglas Stairs, a loss prevention agent at a Raley’s grocery store in Ukiah, was monitoring the store’s video surveillance system. Stairs saw appellants in the liquor aisle. Martinez was taking multiple bottles of expensive tequila off the shelf, which Stairs felt was “cause for alarm” because “most people are not going to take more than two or three high-priced bottles off the shelf at any one time.” Stairs watched Martinez remove the security caps — which are designed to deter theft — from the tequila bottles, place the caps on the shelf, and put the bottles into “what would be a waistline or a large jacket or possibly the side of a cart . . . .”
Stairs called the Mendocino County Sheriff’s Department and went to the front of the store. As he went there, Stairs saw several bottles of tequila and other items in appellants’ grocery cart. Appellants pushed the cart past the cash register and went toward the store’s exit. Stairs confronted them and displayed his badge. At first, appellants ignored him, which Stairs thought was “pretty common for people [who] know that they’ve been busted.” Stairs ordered appellants to come with him to the store’s security office; in response, appellants ran to their car and drove away. Stairs followed appellants in his own car until two deputies from the Mendocino County Sherriff’s Department stopped appellants’ car. A few minutes later, a third member of the sheriff’s department, Sergeant Derek Scott, arrived.
Stairs spoke briefly with the officers and then returned to Raley’s to review the store’s surveillance video. As he reviewed the video, Stairs could see appellants enter the store and walk “towards the high-end tequila area of the liquor aisle.” Martinez removed various bottles from the shelf, placed them “into his jacket or a shirt or waistline,” and then put the security caps back onto the shelf. Stairs saw Duncan “take at least one bottle off the shelf” and put it into the cart. He could also see that Duncan had a black bag or purse and that there was “movement of the tequila bottles towards” it. Finally, Stairs watched appellants exit the store and “flee to their vehicle.”
A reproduction of the surveillance video was shown to the jury and admitted into evidence at trial. We have reviewed the video.
Then Stairs went to the liquor aisle and saw four or five security caps on the shelf where the tequila is stored. He generated a report for the incident and gave it to the sheriff’s deputies who visited the store. Stairs conceded that the report contained inaccuracies regarding the amount and type of merchandise that was stolen. He also acknowledged that the report did not include details about his pursuit of appellants, nor details about his conversation with the sheriff’s deputies. Stairs explained that he prepared the report for internal use at Raley’s.
Duncan’s Miranda Objection
At 4:30 p.m., Scott received a call from dispatch regarding a “shoplifter that had left in a vehicle at Raley’s . . . .” The dispatcher described the car and Scott drove along Highway 101 looking for it. Eventually, Scott noticed that two sheriff’s deputies had stopped a car. Martinez was standing outside of the car and Duncan was in the passenger seat. Stairs was also present, but he was standing by his own car, away from appellants.
At trial, Scott began to testify about a conversation he had with Duncan. Counsel for Duncan raised a Miranda objection and the court held a hearing outside the presence of the jury. At the hearing, Scott testified that he arrived on the scene and spoke briefly to Stairs. Stairs told Scott that he watched Duncan place “at least two” bottles of tequila into a black bag. Then Scott spoke to Duncan while she was seated in the passenger seat of the car. While Scott was talking to her, he looked inside the car and saw two bottles of tequila. Scott began to ask Duncan questions, but she denied any wrongdoing. This conversation lasted between two and five minutes.
Scott went back to Stairs and showed him a bottle of tequila that had been found in appellants’ car. Stairs confirmed that the bottle had been stolen from Raley’s. Scott returned to Duncan and “asked her if she would step out [of the car], and she did.” Scott then resumed questioning her but did not Mirandize her. This conversation lasted between four and seven minutes. Scott told her that a “witness had been watching [Martinez and Duncan] for a while and that he . . . saw her . . . put the bottles in the black bag;” Scott also told Duncan that he “just wanted her to be honest.” At that point, Duncan admitted that “she had taken two bottles without paying for them and that she had placed them in the black bag that she had had with her [and] that was [now] inside the vehicle.” She also said that “her husband [Martinez] had nothing to do with it, and that the other bottles that were found [in the car] were from her brother-in-law . . . .” When Duncan made these statements, she was not handcuffed and she had not been placed under arrest. None of the deputies had drawn their weapons and no physical restraints were being used. Scott was the only officer near Duncan.
The court overruled Duncan’s Miranda objection, concluding, “I don’t find that this situation rises to the point that Miranda’s required . . . .” With the jury present, Scott testified that Duncan admitted that she had “taken two bottles, placed [them] in her bag, and didn’t pay for them and left the store.” Duncan showed Scott the bag. Scott searched the car and found six bottles of tequila. At some point thereafter, the sheriff’s deputies arrested appellants. Duncan had approximately $22 and Martinez had $3.22.
The Court Delivers CALCRIM Nos. 1700 and 1800 to the Jury
The court delivered CALCRIM Nos. 1700 and 1800 to the jury. The court read CALCRIM No. 1700 as follows:
“Now, the defendants are charged with a crime of burglary. To prove that the defendant is guilty of this crime, the People must prove that: [¶] (1) The defendant entered a building; and [¶] (2) When he or she entered the building, he or she intended to commit theft. [¶] To decide whether the defendant intended to commit theft, please refer to the separate instructions that I will give you on that crime. [¶] A burglary was committed if the defendant entered with the intent to commit theft. The defendant does not need to have actually committed theft as long as he or she entered with the intent to do so. The People do not have to prove that the defendant actually committed theft. [¶] The People allege that the defendant intended to commit theft. You may not find the defendant guilty of burglary unless you all agree that he or she intended to commit one of those crimes at the time of entry. And specifically, we’re talking about theft. You do not all have to agree on which one of those crimes he or she intended.”
The court then delivered CALCRIM No. 1800, the jury instruction on theft by larceny: “Now, theft is defined as follows: [¶] To prove the defendant committed the crime of theft, 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 consent; [¶] (3) When the defendant took the property, he or she intended to deprive the owner of it permanently; and, [¶] (4) The defendant moved the property, even a small distance, and kept it for any period of time, however brief. [¶] For theft, the property taken can be of any value, no matter how slight.”
The court continued, “I think I misspoke in one of those elements. . . . I want[ ] to make sure I was clear in terms of defining theft for you. I know the charge in this case is burglary, and I’ve defined the elements for that. But when [appellants] entered the store in this particular case, they have to have a specific intent to commit theft. [¶] So in order to determine whether they had that intent or not, you need to know the definition of theft. So that’s why I’m giving you the definition of theft. . . . [T]heft itself requires a specific intent to permanently deprive the owner of the property. [¶] So at the time they enter the store, they have to have to enter with the intent to commit theft.” The court then re-instructed on the definition of theft and restated the element of intent as follows: “when the person took that property they [sic] . . . specifically intended to permanently deprive the owner of that property . . . .”
The written version of CALCRIM No. 1800 given to the jury provided: “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 consent; [¶] (3) When the defendant took the property (he/she) intended (to deprive the owner of it permanently); AND [¶] (4) The defendant moved the property, even a small distance, and kept it for any period of time, however brief. [¶] For theft, the property taken can be of any value, not matter how slight.”
A jury convicted appellants of second degree burglary and the court placed them on probation.
DISCUSSION
Any Error in Admitting Duncan’s Confession Was Harmless
Duncan’s sole contention on appeal is that the court erred by admitting her incriminating statements because they were obtained in violation of Miranda. The People contend that Miranda warnings were not required because Duncan was not in custody and even if the court erroneously admitted her confession, any error was harmless. We conclude that even if Duncan’s confession was obtained in violation of Miranda, its admission was harmless beyond a reasonable doubt. (People v. Cunningham (2001) 25 Cal.4th 926, 994 [claims of Miranda error are reviewed under harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)]; Arizona v. Fulminante (1991) 499 U.S. 279, 309 (Fulminante) [admission of confession obtained in violation of Miranda is subject to harmless error review].)
To find the erroneous admission of Duncan’s statements harmless, we must conclude that there is no reasonable possibility that the error contributed to the verdict. (Fulminante, supra, 499 U.S. at p. 310.) An error does not contribute to the verdict when it is “unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) “Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is ‘whether the . . . verdict actually rendered in this trial was surely unattributable to the error.’” (People v. Neal (2003) 31 Cal.4th 63, 86, quoting Sullivan v. Louisiana (1993) 508 U.S. 275, 279, italics omitted.)
The evidence against Duncan was very strong. Stairs testified that he saw Duncan move bottles of tequila toward a bag or purse. And Scott testified that he found bottles of tequila and a black bag in appellants’ car. The jury watched surveillance video which showed appellants enter Raley’s and walk directly to the liquor aisle. On the video, appellants can be seen taking bottles of tequila from the shelf, hiding them, and then fleeing without paying. And according to Stairs, the bottles of tequila in appellants’ car looked “exactly like what [were] taken” from Raley’s. Even in the absence of Duncan’s admission, the evidence overwhelmingly established that Duncan was guilty of burglary. Therefore, the admission of Duncan’s confession was harmless beyond a reasonable doubt.
The Court Properly Instructed the Jury on Burglary and Theft
Martinez claims the jury instruction on burglary omitted an element of the crime, specifically, intent. Martinez also contends the theft instruction was “erroneous and contradictory” because the oral instruction on theft differed from the written instruction. “An appellate court reviews the wording of a jury instruction de novo” to determine “whether the instruction accurately states the law” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574) and whether it directs a finding adverse to a defendant “by removing the question from the jury’s consideration.” (People v. Posey (2004) 32 Cal.4th 193, 218.) To assess appellant’s “claim of error, we consider the entire charge to the jury and not simply the asserted deficiencies in the challenged instruction.” (People v. Lewis (2001) 25 Cal.4th 610, 649.) “‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Martin (2000) 78 Cal.App.4th 1107, 1112.)
Martinez’s first claim is that CALCRIM No. 1700 — the instruction pertaining to burglary — omitted an element of the crime because the instruction stated that a defendant must enter a building with the intent to commit larceny rather than with the specific intent to commit larceny. We are not persuaded. The instruction accurately stated the law regarding intent. California courts have held that “burglary based on larceny requires the intent to steal on entry.” (People v. Waidla (2000) 22 Cal.4th 690, 734, citation omitted [“what mattered for the burglary was [defendant’s] state of mind when he entered the . . . home . . .”]; People v. Tafoya (2007) 42 Cal.4th 147, 170 [burglary requires “an entry into a specified structure with the intent to commit theft or any felony”].) Martinez has not cited any California cases reversing a conviction on the grounds that the burglary instruction advised the jury that the defendant must have the intent to steal upon entry rather than the specific intent to steal.
Martinez’s second argument is that the court gave “conflicting and contradictory instructions” on theft, which confused the jury. According to Martinez, the jury was confused by the court’s oral instruction on theft (which mentioned specific intent) and the written instruction (which used the word intent, without the adjective “specific”). To support this argument, Martinez relies on People v. Lee (1987) 43 Cal.3d 666, 671. In Lee, the defendant was convicted of attempted murder and robbery. The trial court instructed the jury that attempted murder required the specific intent to kill with malice aforethought, but then defined malice in such a way “as to permit dispensing with an actual specific intent to kill.” (Id. at p. 670.) The Lee court concluded that the giving of these “contradictory, and partially inaccurate” instructions on specific intent to kill (id. at p. 668) was harmless error because the evidence of the defendant’s intent to kill was “quite strong” and because the “jury most likely understood it was required to find both specific intent to kill and malice, that it did so find . . . .” (Id. at p. 677, italics in original.)
Martinez’s reliance on Lee is puzzling for several reasons, principally because the instructions in that case concerned attempted murder, not burglary, and because the Lee court concluded the error was harmless. We also conclude that any error in instructing the jury was harmless beyond a reasonable doubt under Chapman, supra, 386 U.S. at page 24. First, the court gave the jury CALCRIM No. 251 which defined intent and informed the jury that “to be guilty of the crime of burglary, a person must not only intentionally commit the prohibited act but must do so with a specific intent or mental state.” The jury was repeatedly instructed that, to find appellants guilty of burglary, it needed to conclude they entered the store with the intent to steal. Second, there was a significant amount of evidence demonstrating that Martinez entered Raley’s with the intent to steal. (See People v. Holt (1997) 15 Cal.4th 619, 669, quoting People v. Earl (1973) 29 Cal.App.3d 894, 896 [evidence of intent may be “‘inferred from all of the facts and circumstances disclosed by the evidence’”].) Martinez entered the store with fewer than four dollars, a fact which he concedes is relevant to the intent to steal. (Earl, supra, 29 Cal.App.3d at p. 897, disapproved on another point in People v. Duran (1976) 16 Cal.3d 282, 292.) And he was observed removing security caps from bottles of tequila and then — with Duncan — stealing the bottles, facts which tended to establish intent to steal. (See, e.g., People v. Abilez (2007) 41 Cal.4th 472, 508, quoting People v. Du Bose (1970) 10 Cal.App.3d 544, 551 [in the context of robbery, “‘[t]here is no better proof that [defendant] entered the [victim’s house] with intent to commit robbery than a showing he did in fact commit robbery after his entry’”].) Finally, Martinez fled after Stairs confronted him, which tended to show consciousness of guilt and was relevant to Martinez’s intent when he entered the store. (People v. Solórzano (2007) 153 Cal.App.4th 1026, 1036.)
The version of CALCRIM No. 251 given to the jury provides: “Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [¶] In order to be guilty of the crime of burglary, a person must not only intentionally commit the prohibited act but must do so with a specific intent or mental state. The act and the intent or mental state required are explained in the instruction for each crime.”
Martinez repeatedly characterizes the surveillance tape Stairs prepared as “selective and editorialized” and suggests that the tape is not “genuine evidence of what occurred in the Raley’s store.” Following Martinez’s logic, a complete version of the surveillance tape apparently would have demonstrated that he was not guilty because it “may have show[n] that he was interested in buying other products and not tequila immediately after he entered the store.” We are not persuaded. A surveillance video chronicling all of Martinez’s movements in Raley’s would not diminish the fact that portions of the edited version of the tape showed Martinez taking bottles of tequila off the shelf, placing the bottles in his waistband or jacket, and leaving the store without paying.
DISPOSITION
The judgments are affirmed.
We concur: Simons, J., Reardon, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.