Opinion
A148135
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. TONY GOANS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FCR316953)
Tony Goans (appellant) appeals from a judgment entered after a jury convicted him of grand theft of personal property valued over $950 (Penal Code, § 487, subd. (a) ) and the trial court sentenced him to two years in prison. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and shall affirm the judgment.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
An information filed October 19, 2015, charged appellant with grand theft of personal property valued over $950 (§ 487, subd. (a)). Appellant filed a motion to dismiss on the ground the prosecution failed to prove at the preliminary hearing that the value of the stolen items exceeded $950. Specifically, he argued that the items identified as unpaid for by victim Walmart was $896.99, not $1,571.99, because there was no evidence he intended to steal a scooter valued at $349, or two bicycles valued at $197 and $129, respectively. Appellant argued as to the scooter that his friend Tim Ybarra was seen riding around the store on the scooter. He argued as to the bicycles that they were merely used as a device to prop open Walmart's fire exit door, and that there was no evidence he intended to steal them because they were left in the store.
The People opposed the motion, arguing as to the scooter that appellant aided and abetted Ybarra in a theft, and arguing as to the bicycles that there is no requirement that property must leave the store for a theft to be completed. The trial court denied the motion to dismiss and a jury trial commenced on December 21, 2015.
At a jury trial, Suisun Police Officer Bryan Hamilton testified he was in full uniform with a body camera and in a marked police vehicle at approximately 2:36 a.m. on September 24, 2015. He was patrolling the Petersen/Fulmar area when he noticed a pick-up truck parked in front of a fire exit door by the side of a Walmart store's garden center. He thought it was "kind of suspicious" that the truck was not parked in a parking space, but was "right in front of the fire exit." As he drove towards the truck, he saw one or two people going back and forth between the truck and the Walmart store. An individual lifted a bag of dog food up in the air, and into the bed of the truck, then ran towards the cab of the truck, jumped in the front seat, and began driving away with the driver's door still open.
At that point, Hamilton activated his emergency lights to stop the truck. The truck drove to a nearby parking spot. As Hamilton continued to drive closer to the truck, he heard an alarm coming from the fire exit door, which was still open. He also noticed that a shopping cart that had been up against the building had rolled out into the parking lot, and that there was another shopping cart and two bicycles by the fire exit door.
Hamilton pulled up behind the truck when the individual who had driven away—later identified as appellant—started to approach Hamilton's patrol vehicle while saying "somebody just put all of that stuff in his truck" and that "there was somebody else in that store." Hamilton started to give appellant commands, including instructing him to put his hands on his head. An additional unit then arrived to assist Hamilton in placing appellant in handcuffs. Hamilton continued to investigate and found there was a little over $1,500 worth of merchandise that was either loaded into appellant's truck or moved out from the store from its original location in the store towards the fire exit door. There was a garbage can, a bag of dog food, and miscellaneous food items inside the truck, and a shopping cart with items inside, as well as two bicycles, by the fire exit door.
Hamilton advised appellant of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), and appellant agreed to speak to Hamilton. Hamilton activated his body camera as he interviewed appellant; the recording of the interview was played for the jury. After Hamilton interviewed appellant, he transported him to jail. Once they arrived at the jail, Hamilton heard a dispatch broadcast that another subject was found hiding in the garden center at Walmart. Hamilton asked appellant what the other subject was wearing, whether he had any weapons, and if he would fight the other officers or try to run. During that conversation, appellant said he believed the Walmart items had been purchased with a fake credit card. Hamilton, who was present for the booking process at the jail, said appellant had $100 cash on his person at the time of booking.
Suisun Police Officer James Sousa testified he was on routine patrol at approximately 2:36 a.m. on September 24, 2015, when he heard Hamilton needed assistance. He responded to Walmart to assist, where he went to the west side of the building where Hamilton had made contact with appellant. Sousa assisted in the investigation and photographed "a lot of property" that was "scattered" inside appellant's truck and in front of the emergency exit door. He then brought all of the items inside the Walmart store, where two Walmart employees scanned the items to calculate their total value. The employees printed a receipt after ringing up all of the items, and gave Sousa the receipt.
Walmart manager Denine Colbert, whose duties were to "run the floor" and "make sure that all of our overnight stockers are doing their tasks," was working at about 2:30 a.m. on September 24, 2015. Earlier in the night, she had seen appellant walking around the store pushing a basket with a black garbage can in it. The lid was off the garbage can, and Colbert saw it was full of merchandise. She also saw merchandise outside of the garbage can that was inside the cart itself. When she was on her lunch break, she received a call that there had been a "push-out" in the garden center, which "means somebody just took off with some merchandise." She ran to the garden center and found the police and her assistant manager there. She saw two baskets, a bicycle, a scooter, "all sitting right there, just a ways from the exit door." She was asked to do a "training receipt," which involves scanning and ringing up all the merchandise that went out the door and totaling it out. Based on her merchandise scans, there were two bicycles valued at $197 and $129, respectively. A scooter that was found about 30 or 40 feet from the fire exit door was valued at $349. The total, including tax, came to $1,571.99.
In closing, the prosecutor acknowledged the scooter was "far away" and that appellant "didn't seem to be associated with it at all." The prosecutor urged the jury not to include the value of the scooter—$349—in its calculation and argued that even without it, "the property [was] worth more than 950 dollars." --------
The jury found appellant guilty of grand theft (§ 487, subd. (a)). The trial court sentenced appellant to the mid-term of two years in state prison, with time credit for 401 days.
DISCUSSION
Appellant's counsel has filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, and asks this court to independently review the entire record to determine if it contains any issues which would, if resolved favorably to the appellant, result in reversal or modification. We have examined the entire record and have found no reasonably arguable appellate issue, and we are satisfied that counsel has fully complied with his responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Siggins, J.