Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08905355, Wayne R. Ellison, Judge.
Before Wiseman, Acting P.J., Kane, J. and Poochigian, J.
Brian A. Wright, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
STATEMENT OF THE CASE
Appellant Artemio Guiba, Jr., was charged by information with one count of second degree commercial burglary (Pen. Code, §§ 459/460, subd. (b)) and one count of petty theft with a prior. (§§ 484, 666.) The information further alleged that appellant had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d)) and four prior prison term enhancements. (§ 667.5, subd. (b).) A jury found appellant guilty of both second degree commercial burglary and petty theft with a prior, and the trial court found the prior conviction allegations to be true. On June 12, 2009, the court denied appellant probation and sentenced him to a total term of four years, eight months in state prison. The court imposed the term of two years, eight months on the burglary count and two consecutive one-year terms for the prior prison terms. On appeal, appellant contends there is insufficient evidence to support a finding of asportation because he did not divest the store of possession of the property. We disagree and will affirm.
Further statutory references are to the Penal Code unless otherwise indicated.
The district attorney charged Rita Elaine Rivera as a co-defendant, but she is not a party to the instant appeal.
FACTS
At approximately 3:00 p.m. on August 17, 2008, Todd Acosta, a loss prevention officer for Home Depot in Clovis, saw appellant and a female enter the store through the garden center. Appellant and his companion walked into the “greenhouse” area of the store where merchandise is kept. Appellant left the store and quickly returned to the greenhouse area with a shopping cart. Appellant and the female then picked up a large box containing a patio swing set, approximately three or four feet by five or six feet. They placed the box in the shopping cart, went through double doors separating the greenhouse area from the outside garden center, and proceeded to the rear of the center. The outdoor garden center was secured by 40-foot high iron-rod fence.
Ben Mendoza, another loss prevention officer, was watching a monitor and conducting live video surveillance of the garden center from inside the store’s loss prevention office. Acosta walked back to the office and told Mendoza what he had seen. Acosta asked Mendoza to watch appellant and the female from the floor while Acosta observed them from the office’s closed circuit TV system cameras. Acosta and Mendoza communicated by cell phone and discussed what they observed. Acosta saw appellant and the female take the box out of the shopping cart and “stage” it next to a pallet. The female left the store and soon after was seen standing outside the iron-rod fence of the garden area. Mendoza testified there was a gate in the fence secured with a padlock. The gate is used by Home Depot employees to move pallets of concrete, concrete block, and bushes into that area of the store. Mendoza also said customers do not use that gate.
Acosta said “staging” occurs when a shoplifter coming into a store, places an item in certain areas of the store, and, after making sure no one is watching, comes back to take the item.
Acosta saw the female hand appellant an object under the fence, wrapped in what appeared to be a pair of blue jeans. When appellant unwrapped the object, Mendoza saw what appeared to be a pair of bolt cutters with yellow handles. Appellant attempted to cut the padlock off the fence but was unsuccessful, despite “five or six good strokes, ” according to Mendoza. Appellant then handed the object back to the female, who placed it in the trunk of a car that was parked behind the fence. Mendoza followed appellant as he left the store. Mendoza placed appellant in handcuffs and took him to the back of the store where he saw Acosta with the female, who was also in handcuffs.
The police arrived and searched the trunk of a green Honda Civic that was later determined to belong to appellant’s daughter. Officers found three pairs of bolt cutters inside the trunk of the Honda. One of the loss prevention officers identified a large pair as the one appellant used to attempt to cut the lock. Appellant was taken into custody.
DISCUSSION
Appellant contends that there is insufficient evidence to sustain his conviction for petty theft with a prior because he did not divest the store of possession of the property.
Appellant concedes that taking property from store shelves with the requisite intent and moving it within the store can constitute a completed theft even where the defendant does not take the property out of the store. However, he submits that because his possession of the property was open and notorious, he did not fully divest the store of possession. Thus, he argues, the element of asportation was not established and his conviction for petty theft should be reversed. We disagree.
Standard of Review
In reviewing a criminal conviction for sufficient evidence, the court must review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial 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. The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Halvorsen (2007)42 Cal.4th 379, 419.)
Asportation
The crime of theft is the stealing or taking of the property of another. (§ 484.) The elements of theft by larceny are (1) taking possession (2) of personal property (3) owned or possessed by another (4) without the owner’s consent (5) with the intent to permanently deprive the owner of the property, and (6) carrying the property away, or asportation. The mere movement of the property, however slight, is sufficient to satisfy the element of asportation. (People v. Davis (1998) 19 Cal.4th 301, 305.) “Taking” has two aspects: (1) achieving possession of the property, known as “caption” and (2) carrying the property away, or “asportation.” A theft continues until the perpetrator has reached a place of temporary safety with the property. (People v. Gomez (2008) 43 Cal.4th 249, 255.)
The court instructed the jury in CALCRIM No. 1800 [theft by larceny (Pen. Code, § 484)] as follows:
“The defendant’s charged in Count Two with petty theft in violation of Penal Code Section 484. To prove the defendant is guilty of this crime, the People must prove that one, the defendant took possession of property owned by someone else; two, the defendant took the property without the owner or owner’s/agent’s consent; three, when the defendant took the property he intended to deprive the owner of it permanently, or to remove it from the owner or owner’s/agent’s possession for so extended period of time that the owner would be deprived of the value or enjoyment of the property; and four, the defendant moved the property even a small distance and kept it for any period of time however brief.
“An agent is someone to whom the owner has given complete or partial authority and control over the owner’s property. For petty theft the property taken can be of any value, no matter how slight.”
The court also instructed in CALCRIM No. 460 [attempt other than attempted murder (Pen. Code, § 21a)] as follows:
Appellant claims the evidence is insufficient to establish the element of asportation. He argues that moving the box within the confines of the Home Depot store did not sever the possession of Home Depot so as to put appellant in absolute possession. Further, because he did not conceal the property, it was never in his sole possession. Appellant submits his case is distinguishable from several California cases where the court found a completed theft when the defendant hid or secreted the property, even though the defendant never left the store with the property. (People v. Shannon (1998) 66 Cal.App.4th 649 (Shannon); People v. Khoury (1980) 108 Cal.App.3d Supp. 1 (Khoury).) We disagree.
In Shannon, the defendant entered a department store, took clothes from a rack, hid them in a bag, and proceeded to the cashier. Defendant asked the cashier to exchange the clothing for a cash refund. Store personnel had seen defendant hide the clothes and knew he had stolen them from the rack. The cashier complied as part of the store’s plan to catch defendant. Security agents apprehended defendant as he attempted to leave the store. (Shannon, supra, 66 Cal.App.4th at p. 652.) Division One of the Second Appellate District held that the theft by larceny was complete when the defendant dropped the clothes in the bag with the intent to falsely exchange them for monetary value. (Id. at p. 656.)
Defendant asserted the theft was not complete when he took the clothes because he did not intend to permanently deprive the store of the clothes. Rather, he only intended to take the money he would receive from the false refund. The court held theft requires the specific intent to permanently deprive the owner of its property. The intent to later restore or make restitution for the property is no defense. The property need not be retained by the perpetrator. Asportation of the property with the intention to appropriate it is sufficient to constitute larceny, even though the property may later be returned to the owner. The fact a thief is prevented by an officer from getting away with the property or changes his or her mind and returns the property to escape prosecution, does not relieve the thief from the consequences of the theft. (Shannon, supra, 66 Cal.App.4th at pp. 655-657.)
Similarly, in Khoury, the defendant was observed for several hours pushing a cart around a Fed Mart store in Los Angeles. He eventually pushed the cart--with a large chandelier box on it--to a checkstand. The cashier noticed the box was loosely taped and said he would have to open the box and check the contents before allowing defendant to pay the marked price and remove the box from the store. Defendant then walked back through the checkstand and into the store, leaving the box with the cashier. Defendant was arrested by security personnel after the box was opened and store officials found more than $900 worth of batteries, tools, and chain saws but no chandelier. (People v. Khoury, supra, 108 Cal.App.3d Supp. at p. 3.)
Defendant appealed a conviction for grand theft (§ 487, subd. (1)), contending the evidence was insufficient to show an asportation or carrying away of the personal property of the Fed Mart Store. He maintained he was guilty, at most, of an attempt to commit grand theft. The Appellate Division of the Los Angeles Superior Court noted: “‘The element of asportation is not satisfied unless it is shown that “the goods were severed from the possession or custody of the owner and in the possession of the thief, though it be but for a moment.”’” (Khoury, supra, 108 Cal.App.3d Supp. at p. 3, citing 1 Witkin, Cal. Crimes (1963) Crimes Against Property, § 378.) In finding that defendant had completed the theft, the court held that the property did not have to be removed from the owner’s premises to satisfy the element of asportation. (Id. at p. 5).
The Khoury court specifically observed that defendant was seen pushing a shopping cart carrying a carton or container for packaging a chandelier. The chandelier had been removed from the carton and a variety of items, with a value in excess of $900, were found in the carton. The carton was taped and the recent taping of the carton prompted the cashier not to permit defendant to go through the check stand until the contents of the carton were checked. Upon being informed of this, the defendant walked back into the store and left the carton behind. These facts, and the reasonable inferences that could be drawn from them, supported the jury’s finding of asportation by substantial evidence.
In a dissenting opinion, Judge M. Ross Bigelow maintained the facts failed to show sufficient asportation of the items as to constitute a completed theft. Judge Bigelow concluded defendant was only guilty of attempted grand theft because the “alert clerk at the checkstand prevented defendant from removing the items from the store’s possession and control, even for a moment.” (Khoury, supra, 108 Cal.App.3d Supp., at pp. 5-6 (dis. opn. of Bigelow, J.).) As noted above, in the instant case the court instructed the jury on the completed offense of theft by larceny (CALCRIM No. 1800) and attempted petty theft (CALCRIM No. 460).
The instant case presents an analogous situation. Appellant removed a large piece of merchandise from the place where it was kept and used a cart to transport the item to the back garden area. He rested the item near a 40-foot high fence with a gate that was typically used by Home Depot employees and not customers. Appellant started to pace and look around. Appellant’s female companion appeared at a spot outside the fence and slid a cloth-wrapped item in the five-inch gap between the base of the fence and the concrete pad. Appellant removed the blue cloth, revealed a set of bolt cutters, and attempted to remove the fence’s padlock. When he was unable to cut the padlock off despite “five or six good strokes, ” appellant wrapped it up “real fast” and gave it back to his companion through the fence.
Asportation within the meaning of the statute prohibiting theft may be fulfilled by wrongfully and unlawfully removing property from the possession or control of the owner, against the owner’s will with the intent to steal it, even though the property may be retained by the thief but a moment. The fact the thief is frustrated in his or her attempt to carry stolen property away does not relieve him or her of the consequence of the theft. (People v. Quiel (1945) 68 Cal.App.2d 674, 679.) The Supreme Court has held that, “if the taking has begun, the slightest movement of the property constitutes a carrying away or asportation.” (People v. Davis, supra, 19 Cal.4th at p. 305.)
Despite appellant’s vigorous arguments, neither Shannon nor Khoury stand for the proposition that the defendant must hide or conceal the property in order to satisfy the element of asportation. Rather, the court in both cases held that one need only take possession of the property and move it slightly with the intent to deprive the owner of it permanently. (Shannon, supra, 66 Cal.App.4th at p. 654; Khoury, supra, 108 Cal.App.3d Supp. at p. 4.) Here, there is sufficient evidence to support the jury's determination that the element of asportation was satisfied once appellant severed possession of the item by moving it, with the requisite intent, from its location in the greenhouse area inside the store to the back of the outside garden area.
Appellant acknowledges that other California cases “have held that the taking of property from store shelves with the requisite intent and moving it within the store can constitute a completed theft even where the defendant did not take the property out of the store.” However, unlike the instant case, the property in question was hidden or secreted by the defendant on his person or in a box or bag while the defendant was still inside the store. We will briefly examine those cases.
In People v. Thompson (1958) 158 Cal.App.2d 320 (Thompson), defendant and several others entered a Thrifty Drug Store in Los Angeles. Defendant went to the phonograph record section, selected seven long-playing records from a display rack, concealed them inside his coat, and started to leave the store. After defendant went through the checkstand, a police officer who conducted off-duty private security work for Thrifty placed defendant under arrest. Defendant was standing about 10 feet past the checkstand and was still in a portion of the store where there was merchandise available for customers to choose. Division Three of the Second Appellate District held all of the elements of petty theft were established by the off-duty officer’s testimony. The carrying of the records through the checkstand constituted an asportation of the goods. That act effectively removed them from the store’s possession and control, even if only for a moment. Whether defendant and his companions intended to steal the records was a question of fact to be resolved by the court from all the circumstances in evidence. The court could properly infer the requisite intent from defendant’s concealment of the records, one companion’s attempt to escape from custody, and his companions’ subsequent admissions that defendant had the requisite intent. The fact a thief is frustrated in an attempt to carry away stolen property does not relieve him or her of responsibility for the theft. (Id. at pp. 322-323.)
In People v. Tijerina (1969) 1 Cal.3d 41, a security agent for Broadway Department Store in Los Angeles learned that a person had entered the store with a box on his head or shoulders on successive Monday evenings. On Monday evening, March 27, 1967, the agent saw defendant walk through the store and use a stairway marked “Employees Only.” The agent alerted his partner and 35 minutes later they saw defendant leave the store with a large box on his head. Defendant looked back in their direction, dropped the box, and started to run. After a brief chase, the agents caught defendant. The box contained 63 packages of men’s undershorts, three sweaters, and 13 sport shirts. On October 12, 1967, defendant was looking at merchandise during the closing hour at the J.W. Robinson Department Store in Los Angeles. The next day, a store detective discovered a pile of merchandise on a platform near a stairway restricted to emergency use by employees. Shortly after noon, defendant arrived, removed a paper bag from his pocket, took a cashmere coat from the pile of merchandise, and placed the coat in the bag. Defendant maintained the theft was incomplete because he did not succeed in removing the coat from the store. The Supreme Court held: “[D]efendant reduced the cashmere coat to his possession. His subsequent failure to remove the coat from the store did not render the theft incomplete.” (Id. at p. 47.)
In People v. Buonauro, (1980) 113 Cal.App.3d 688, 692, the store manager of Clark Drug in Temple City observed defendant standing behind the counter in the photo department. Expensive items were stored at that display counter and customers were not normally allowed in that area. A short time later, a customer informed the manager that defendant had taken two radios from the photo department and placed them in her purse. The manager closed off the checkstand area, saw defendant in a store aisle, and asked her to step to the back room so he could examine her purse. Without saying a word, she opened the purse, took out one store radio, handed or threw it to him, and ran toward the checkstand. Store employees detained defendant and she turned over the second radio. At one point, she claimed she brought the radios into the store to exchange them but did not have a receipt. At trial, she claimed she put the radios in her purse with the intent to buy them and ran away because she was scared of the manager. (Id. at pp. 690-692.)
Defendant was convicted of petty theft with a prior and Division Five of the Second Appellate District affirmed. On appeal, defendant asserted that she intended to pay for the radios but lost her composure when confronted by the store manager. The credibility of appellant’s explanation was for the jury to determine. The court found substantial evidence justifying a conclusion that defendant intended to permanently deprive the owner of its property. Defendant also suggested that she was not guilty of theft because she did not leave the store with the merchandise. The appellate court summarily rejected this argument under the authority of Khoury and Thompson.
Contrary to appellant’s argument, the cases of Thompson, Tijerina, and Buonauro do not require the hiding or concealment of an item as a necessary element or facet of asportation for purposes of theft. Rather, the cases support the proposition that asportation requires that the item be moved with the requisite intent, though only for a moment.
Appellant also compares Home Depot’s possession to “constructive possession” in the crime of robbery. Appellant argues that because his possession of the item was “open and notorious, ” the store continued to have “constructive possession” of the item and thus the element of asportation was not established. More specifically, appellant contends he did not “‘supersede the possession of the store, ’” take the patio swing set into his “‘entire or absolute possession, ’” or sever the merchandise from the possession or custody of the owner and “take it into his sole possession.” Appellant’s analogy to the law of robbery is inapposite. Under Penal Code section 211, victims of robbery can be persons in either actual or constructive possession of the property taken. (People v. Nguyen (2000) 24 Cal.4th 756, 764.) Based upon a theory of constructive possession, a store employee may be the victim of a robbery even though he or she is not its owner and not at the moment in immediate control of the stolen property. (People v. Scott (2009) 45 Cal.4th 743, 751.) As to the law of theft, Division One of the Second Appellate District aptly observed more than a half century ago:
“Penal Code, section 484, now amalgamates the crimes of larceny, embezzlement, false pretenses, and kindred crimes under the cognomen of theft. [Citations.] Like charity, California’s definition covers a multitude of sins. No longer need the legal profession puzzle over fine distinctions between embezzlement, larceny, and other elements of stealing. The crime is complete if a man takes property not his own, with the intent to take it.” (People v. Hiden (1951) 102 Cal.App.2d 655, 659.)
The direct and circumstantial evidence in the instant case demonstrated that appellant took “property not his own, with the intent to take it.” (Ibid.)
Lastly, appellant contends that his case is analogous to People v. Meyer (1888) 75 Cal. 383, 384-385 (Meyer), where the defendant was found not guilty of a completed theft where he attempted to steal an overcoat that was chained to a clothing store mannequin that was secured to the store by a string. In Meyer, the defendant was frustrated in his attempt to carry away the property because the property was physically attached to the store. However, subsequent courts have distinguished Meyer from those cases in which the defendant moves the owner's property with the intent to carry it away, but is apprehended before he leaves the store. (Khoury, supra, 108 Cal.App.3d Supp. at pp. 4-5; People v. Tijerina, supra, 1 Cal.3d at p. 47.)
In this case, the patio swing set was not physically attached to the building so as to prevent appellant from removing it from the owner’s possession. Thus, the factual setting of Meyer was simply not present here. In our view, there was sufficient evidence to support the element of asportation once appellant severed the possession of the item by moving it with the requisite intent. That intent was underscored by the staging of the box in a remote sector of the outside garden area; the female companion’s provision of cloth-wrapped bolt cutters under the security fence; and appellant’s use of those bolt cutters in an unsuccessful attempt to break the padlock on a gate used exclusively by Home Depot personnel for the stocking of palleted building materials and landscaping items.
DISPOSITION
The judgment is affirmed.
“The crime of attempted petty theft is a lesser crime of the crime as charged in Count Two. To prove the defendant is guilty of this crime the People must prove that one, the defendant took a direct but ineffective step toward committing a petty theft; and two, the defendant intended to commit petty theft. A direct step requires more than merely planning or preparing to commit petty theft or obtaining or arranging for something needed to commit the theft.
“A direct step is one that goes beyond planning or preparation and shows that a person is putting his plan into action. A direct step indicates a definite and unambiguous intent to commit the crime of petty theft. It’s a direct movement toward the commission of the crime after preparations are made. It’s an immediate step that puts the plan in motion so that the plan would have been committed if some circumstance outside the plan had not interrupted the intent.
“A person who attempts to commit petty theft is guilty of attempted petty theft even if, after taking a direct step towards committing the crime, he abandoned further efforts to complete the crime, or if his attempt failed or was interrupted by someone or something beyond his control. On the other hand, if a person freely and voluntarily abandons his plan before taking a direct step towards committing a petty theft, then that person is not guilty of attempted petty theft. To decide whether the defendant intended to commit petty theft please refer to the separate instruction I have given you on that crime.”