Opinion
G043694 Super. Ct. No. 09HF0111
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. MIR MASSOUD KASHANI, Defendant and Appellant.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Natasha Cortina and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Daniel Barrett McNerney, Judge. Affirmed.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Natasha Cortina and
Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Mir Massoud Kashani appeals from a judgment entered after a jury found him guilty of grand theft. He contends (1) the prosecutor engaged in misconduct during her opening statement and closing and rebuttal arguments by suggesting defendant was a professional thief, (2) insufficient evidence supported a finding of grand theft as opposed to petty theft because substantial evidence did not establish the value of the stolen item as exceeding $400 pursuant to Penal Code former section 487, subdivision (a) (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 17) (hereafter referred to as former section 487, subdivision (a)), and (3) the trial court erred in responding to the inquiry submitted by the jury during deliberations. (All further statutory references are to the Penal Code unless otherwise specified.)
We affirm. The prosecutor's comments that defendant was a professional thief were expressly based on her interpretation of the surveillance videotape that was viewed by the jury and captured defendant's subtle efforts to steal a sweater from a clothing store. The prosecutor's statements did not suggest defendant had previously committed theft offenses or otherwise comment on defendant's character.
Substantial evidence in the form of the testimony of the store's assistant manager established that the stolen sweater had a value of $1,075. Former section 487, subdivision (a), which was in effect before and during defendant's trial, provided that grand theft involved the taking of money, labor, or property having a value that exceeded $400. The trial court did not err in its response to the jury's inquiry about how to determine the value of the sweater. The trial court referred the jury to the instruction previously given on theft and also to the only trial evidence that addressed the issue of value.
FACTS
At 6:00 p.m. on Friday, December 5, 2008, defendant walked into Hermes, a store located in South Coast Plaza; he was carrying a tan jacket. Assistant manager Christine Yi-Hsieh approached defendant and asked him whether he needed any assistance. Defendant asked her about a particular jacket and whether she had it in a different size. Yi-Hsieh told defendant she would check for him. Yi-Hsieh went to the stockroom in the back of the store and found the jacket in the size defendant had requested.
Witnesses have described the garment defendant was carrying as a tan jacket or a beige or cream-colored sweater. It appears the witnesses are describing the same thing which we refer to as a tan jacket.
Yi-Hsieh returned with the jacket and defendant tried it on. They discussed how the jacket fit and whether some alteration might be required. Defendant told Yi-Hsieh that he wanted to go to other stores and asked her to hold the jacket for him because he might come back. Defendant did not purchase anything before he walked out of the store at 6:20 p.m., carrying his tan jacket.
On the following day around 1:00 p.m., Yi-Hsieh learned that a black cashmere sweater valued at $1,075 was missing. A sales associate in charge of the men's "ready-to-wear" section of the store presented her with two empty hangers and only one sweater. Yi-Hsieh reviewed the register tapes to determine whether the missing sweater had been sold and asked the sales associates if it had been sold. Yi-Hsieh, however, did not find any record of it being sold. She also checked the dressing room but did not find it.
Yi-Hsieh reviewed the surveillance videotape that had recorded the activity inside the store the previous night. The videotape showed that after Yi-Hsieh left to retrieve the jacket defendant had requested, defendant slipped a thin black cashmere sweater off of a hanger and placed it inside the tan jacket he carried over his left arm. Yi-Hsieh testified at trial that she did not notice the empty hanger when she returned with the jacket. The videotape showed that after defendant and Yi-Hsieh discussed the jacket he tried on, defendant walked over to where the empty hanger was; the empty hanger was thereafter no longer visible on the surveillance videotape.
The videotape was played for the jury at trial.
On December 7, Yi-Hsieh saw defendant in the mall. She told him that she recognized him from Friday night when she had assisted him in the store. Defendant told her that he had never been in the store or South Coast Plaza.
Also on December 7, Costa Mesa Police Officer Ryan Natividad was dispatched to a theft investigation at South Coast Plaza, in which defendant had been detained. Natividad asked defendant when was the last time he had been to South Coast Plaza. Defendant said that he had never been to South Coast Plaza until that day. Natividad noticed defendant had a tan jacket with him.
BACKGROUND
Defendant was charged in an information with one count of grand theft in violation of former section 487, subdivision (a). The information contained two enhancement allegations under section 12022.1, subdivision (b), asserting that at the time defendant committed the charged offense, he had been released from custody on bail and on his own recognizance in two separate cases, each involving a "primary felony."
The jury found defendant guilty of grand theft as charged. The trial court found the first of the enhancement allegations true after a court trial. The court dismissed the second enhancement allegation. Defendant filed a motion for a new trial on the ground the prosecutor had engaged in misconduct by suggesting defendant was a professional thief in her opening statement and closing and rebuttal arguments. The trial court denied the motion.
The trial court suspended the imposition of sentence and placed defendant on felony probation for three years, conditioned on, inter alia, defendant serving 120 days in county jail. Defendant appealed.
DISCUSSION
I.
PROSECUTORIAL MISCONDUCT
"'The applicable federal and state standards regarding prosecutorial misconduct are well established. "'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so "egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."'" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'"' [Citation.]" (People v. Navarette (2003) 30 Cal.4th 458, 506.) "'"As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.]"'" (People v. Ayala (2000) 23 Cal.4th 225, 284.)
Defendant argues the prosecutor engaged in misconduct by making five statements that "either inferr[ed] or outright claim[ed] that [defendant] was a 'professional thief.'" Defendant also argues those statements improperly attacked defendant's character and "infer[red] the prosecution knows of prior theft convictions by [defendant] of which the jury [wa]s not aware." We do not need to address the extent to which defendant's arguments of prosecutorial misconduct on appeal might be forfeited, because even if they were properly preserved for appellate review, they are without merit.
In her opening statement, the prosecutor stated in part: "The case we have here today is actually a very simple case of grand theft from Hermes at South Coast Plaza. And the reason, really, that we're here is because the defendant is a pro. He is a skilled thief. And you will see this through the evidence in this case." Defendant's counsel objected to the prosecutor's "characterization." The trial court admonished the jurors to "keep in mind what the attorneys say is not evidence," in accordance with the same instruction the court gave the jury immediately before the prosecutor began her opening statement. The prosecutor continued by stating that, fortunately, "[w]e have a video in this case" which "shows the defendant committing grand theft."
The prosecutor's statements referred to the subtlety of defendant's movements in effecting the theft of the sweater, which the jurors would see when they viewed the surveillance videotape. The statements suggested defendant acted like a professional based on his technique, not based on any prior criminal record he might have or his character. The prosecutor did not suggest any knowledge that defendant had previously committed a theft offense.
During her closing argument, the prosecutor summarized the steps defendant took to steal the sweater and cover up what he had done, stating: "And you will see when he comes out of the dressing room, after he returns those pants, he covers up his tracks and that's when he's actually able to get away with it initially. He's that good. If it wasn't for this video, I will tell you right now he probably wouldn't be caught. But we have him on video. We have him going back and covering up his tracks by taking that empty hanger and hanging it with the sweater hanging behind it. And we've got good security people who were doing their job, who were going back, watching video, looking out for this person if he comes back." Defendant's counsel did not object to the prosecutor's comments.
In her rebuttal argument, the prosecutor urged the jury to carefully review the videotape, stating: "When you look at everything together—and again I encourage you to watch this video, because the truth is I know none of you here, I myself, we weren't there at the time, so the best evidence we have of what happened is looking at that video. And I ask you to watch it carefully, because what it shows us is that this defendant he's not an amateur shoplifter, he knows what he's doing. He goes into a store, a very high end store, right, and he looks for items that he is going to steal. He goes in under the ruse of shopping, but he finds an item that he can conceal quite easily." Defendant's counsel did not object to this statement.
In her rebuttal argument, the prosecutor also stated: "And he's very good at being a professional thief. I mean, honestly this video shows, if anything, that he knows how to set this up in a way where he doesn't draw attention to himself. He does it step by step, very slowly. He is able to go into a dressing room and conceal the item, and then return things, you know, actually conceal the evidence of the theft, do all of these things and counsel wants you to think that he did all this stuff but he actually didn't take the sweater from the store." Defendant's counsel then interjected: "Your Honor, we heard this many times now. There's no evidence that my client is a professional thief." The court overruled the objection but stated: "Ladies and gentlemen, you are—the jury has a prerogative [to] determine what the facts are in drawing whatever inferences reasonable or unreasonable you believe the facts suggest. Ultimately you decide what the facts are."
The prosecutor's statements in her closing and rebuttal arguments were expressly based on the prosecutor's interpretation of what was shown in the surveillance videotape. Nothing suggested to the jury that the prosecutor was relying on any extrinsic source in making her arguments. In any event, the jury was repeatedly reminded by the trial court that the attorneys' comments did not constitute evidence and that it was the province of the jury to decide what the facts of the case were. We find no error.
II.
SUBSTANTIAL EVIDENCE SUPPORTED THE FINDING DEFENDANT
COMMITTED GRAND THEFT.
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.) The testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to support a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
Defendant argues substantial evidence did not support his conviction for grand theft because insufficient evidence established that the value of the sweater exceeded $400 as required by former section 487, subdivision (a). (Former section 487, subdivision (a) was amended effective January 1, 2011 to provide that grand theft involves the theft of money, labor, or property exceeding $950 in value.) Defendant asserts the only testimony on the value of the sweater was given by Yi-Hsieh who stated she "believe[d]" its value "was like $1,075." Defendant contends Yi-Hsieh's belief is insufficient to support his conviction for grand theft and requests that this court reduce his conviction to petty theft.
Defendant's argument is without merit. Yi-Hsieh testified she was the assistant manager of the Hermes store from which defendant stole the sweater. Her testimony demonstrated her familiarity with the sweater. Her statement that she believed the sweater "was like" $1,075 did not render her testimony insufficient to establish the value of the sweater was $1,075.
Defendant argues that former section 487, subdivision (a), as amended effective January 1, 2011, should retroactively apply to this case. Former section 487, subdivision (a) was amended to define grand theft as, inter alia, the taking of money, labor, or property having a value in excess of $950. We need not address whether section 487, subdivision (a), as amended effective January 1, 2011, should retroactively apply here, because, even if it did, Yi-Hsieh's testimony established that the value of the sweater was $1,075, an amount that exceeds $950. We find no error.
III.
THE TRIAL COURT DID NOT ERR IN RESPONDING TO THE JURY'S INQUIRY.
Defendant argues the trial court prejudicially erred in its response to the following question the jury submitted to the court during deliberations: "How was the value of the sweater established?" After notifying counsel, the court provided the jury with the following response: "Please refer to testimony of witness Hsieh and instruction 1801. [¶] Please advise the court if you request readback of testimony."
The trial court thus referred the jury to the modified version of CALCRIM No. 1801 previously given, which stated: "If you conclude that the defendant committed a theft, you must decide whether the crime was grand theft or petty theft. [¶] [The defendant committed grand theft if he stole property worth more than $400.] [¶] [The value of (property) is the fair (market value of the property)[.]] [¶] [Fair market value is the highest price the property would reasonably have been sold for in the open market at the time of, and in the general location of, the theft.] [¶] All other theft is petty theft. [¶] The People have the burden of proving beyond a reasonable doubt that the theft was grand theft rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of grand theft."
Defendant argues: "There are two difficulties with the court's response to the juries [sic] question, the first is that it intruded on the jury's fact-finding role and directed a verdict on the required element of value, and improperly vouched for the witness's testimony; and secondly, that it did not even answer the jury's question of 'how' value is determined, which is a variation on the first error."
Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." The California Supreme Court explained that section 1138 "imposes on the court the 'primary duty to help the jury understand the legal principles it is asked to apply.'" (People v. Cleveland(2004) 32 Cal.4th 704, 755.) We review the trial court's response to the jury for an abuse of discretion. (People v. Smithey (1999) 20 Cal.4th 936, 985.)
We conclude the trial court responded appropriately. It referred the jury to the relevant jury instruction as to the elements of theft and the prosecution's burden to prove each element as well as to the only trial evidence that in any way addressed the value of the sweater. Such conduct did not intrude upon the jury's factfinding role, have the effect of a directed verdict on the element of value, or vouch in favor Yi-Hsieh's testimony.
Defendant argues the jury's inquiry triggered a sua sponte obligation on the part of the trial court to instruct the jury with CALCRIM No. 1860 regarding factors considered in evaluating the weight that should be given to a witness's opinion of value. Defendant argues Yi-Hsieh's testimony constituted an opinion because her testimony was not based on any "documentation or verifiable information." Defendant's argument is without merit. Yi-Hsieh's testimony established her knowledge of the retail price of the sweater, based on her position as assistant manager of the Hermes store. The trial court did not err by failing to sua sponte instruct with CALCRIM No. 1860, or otherwise, in responding to the jury's inquiry.
CALCRIM No. 1860 states: "A witness gave (his/her) opinion of the value of the property (he/she) [allegedly] owned. In considering the opinion, you may but are not required to accept it as true or correct. Consider the reasons the witness gave for any opinion, the facts or information on which (he/she) relied in forming that opinion, and whether the information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable or unreasonable. You may give the opinion whatever weight, if any, you believe it deserves."
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DISPOSITION
The judgment is affirmed.
FYBEL, J.
WE CONCuR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.