Opinion
E050659
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. BONITA LORENE KLEIER, Defendant and Appellant.
Law Offices of Robert C. Kasenow II and Robert C. Kasenow II for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Jennifer A. Jadovitz, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF134939)
OPINION
APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed.
Law Offices of Robert C. Kasenow II and Robert C. Kasenow II for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Bonita Lorene Kleier was caught shoplifting at the exchange store at March Air Force Reserve Base. She appeals after she was convicted of petty theft with a prior theft conviction, in violation of Penal Code section 666. Defendant contends, first, that the superior court had no jurisdiction over the offense, because it took place on federal property (military reserve base) and, second, that because defendant had stipulated to the prior conviction element of the current charge, the trial court erred in permitting evidence of her prior convictions to come before the jury. We find no prejudicial error and we affirm.
FACTS AND PROCEDURAL HISTORY
On February 14, 2007, defendant was in the Army and Air Force Exchange Store, the base department store located on the March Air Force Reserve Base in Riverside, California. Something in defendant's behavior drew the attention of a loss prevention agent; the agent continued watching defendant as she moved about the store. The agent saw defendant at the perfume counter with some bottles of perfume. Then defendant put the perfume bottles inside a shoe box. Defendant then seemed to randomly collect a few items and rejoined a friend who was also in the store. Defendant's friend presented several items for scanning at the checkout counter, including the shoe box. The loss prevention agent never saw the perfume bottles scanned at the checkout counter. As defendant and her friend were leaving the store, the loss prevention agent confronted them. The loss prevention agent recovered the shoe box, which was found to contain perfume valued at $76.00. At trial, the prosecution presented a surveillance videotape showing defendant's movements and actions inside the store, which the loss prevention agent then described.
Defendant was charged with petty theft with a prior theft-related conviction, in violation of Penal Code section 666. Three prior theft convictions were also alleged. Before trial, defendant stipulated to the truth of the three prior theft-related convictions. At trial, the prosecution produced the evidence outlined above; defendant presented no witnesses. The jury found defendant guilty as charged, and the court sentenced her to four years in state prison.
Defendant now appeals.
ANALYSIS
I. Defendant's Jurisdictional Challenge Is Without Merit
Defendant's first claim on appeal is that she was improperly tried and convicted in state court. She contends that her offense took place on a federal enclave (military base) and, therefore, the federal government had exclusive jurisdiction to try her for the offense. Consequently, she urges, her trial and conviction in state court must be set aside.
Defendant contends that the United States Congress has exclusive jurisdiction over all military facilities (Surplus Trading Co. v. Cook (1930) 281 U.S. 647, 652 [50 S.Ct. 455, 74 L.Ed. 1091]), and that where the United States has exclusive jurisdiction, the state is barred from exercising its taxing or police power over the property or the activities of persons on the property (Silas Mason Co. v. Tax Commission (1937) 302 U.S. 186, 197 [58 S.Ct. 233, 82 L.Ed. 187]). However, defendant has failed to recognize that transfer or cession to the United States of land within a state for military purposes need not be total; the ceding state may reserve certain powers to itself.
"Exclusive jurisdiction can be acquired by the United States over land within a state in three ways: (1) by purchase or donation of property with the consent of the state as provided in the United States Constitution (U.S. Const., art. I, § 8, cl. 17; Humble Pipe Line Co. v. Waggonner (1964) 376 U.S. 369, 371, [11 L.Ed.2d 782, 84 S.Ct. 857]); (2) by a reservation of jurisdiction by the United States upon the admission of the state into the union (Fort Leavenworth [R.R. Co. v. Lowe (1885)] 114 U.S. [525] at pp. 526-527, 5 S.Ct. 995 ); and (3) the state's cession, together with the United States acceptance, of such jurisdiction (id. at p. 539; Silas Mason, supra, 302 U.S. at pp. 207-208)." (Coso Energy Developers v. County of Inyo (2004) 122 Cal.App.4th 1512, 1520, fn. omitted, [Fourth Dist., Div. Two] (Coso Energy).)As in Coso Energy, we are concerned here only with the third method, acquisition of federal jurisdiction by state cession. "The ability of a state to cede jurisdiction to the United States over federally owned land was established in Fort Leavenworth." (Ibid.)The court concluded that even though the Fort Leavenworth Military Reservation was not purchased by the consent of the legislature as expressed in the United States Constitution, Kansas's act to cede jurisdiction was, with the acceptance by the United States, effective to transfer jurisdiction to the federal government. (Fort Leavenworth R. Co. v. Lowe, supra, 114 U.S. at pp. 541-542.)
"After the decision in Fort Leavenworth, it was clear that a state could transfer jurisdiction over land within its borders by either consenting to the purchase by the United States of such land (as provided in the United States Constitution) or enacting a statute ceding jurisdiction over federal land and having the United States accept such cession. Fort Leavenworth and subsequent cases also made clear that a state may limit or qualify its cession of jurisdiction. [Citations.] 'The terms of the cession,' the Supreme Court has stated, 'to the extent that they may lawfully be prescribed, determine the extent of the Federal jurisdiction.' (United States v. Unzeuta (1930) 281 U.S. 138, 142 [74 L.Ed. 761, 50 S.Ct. 284].) Thus, in ceding jurisdiction to the United States, a state may reserve to itself the power to regulate or tax private interests within an area over which it otherwise cedes jurisdiction." (Coso Energy, supra, 122 Cal.App.4th at pp. 1521-1522, italics added.)
"[W]hether the land is acquired by purchase or condemnation on the one hand or by cession on the other—a State may condition its 'consent' upon its retention of jurisdiction over the lands consistent with the federal use. [Citation.] Moreover, as stated in [James] Stewart & Co. v. Sadrakula [(1940)] 309 U.S. 94, 99-100: [¶] 'The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. This assures that no area however small will be left without a developed legal system for private rights." (Paul v. United States (1963) 371 U.S. 245, 264-265 [83 S.Ct. 426, 9 L.Ed.2d 292].) As the Paul court noted in 1963, California's cession statute "consent[ed] to the purchase or condemnation by the United States of any tract of land within this State for the purpose of erecting forts, magazines, arsenals, dockyards, and other needful buildings, upon the express condition that all civil process issued from the courts of this State, and such criminal process as may issue under the authority of this State, against any person charged with crime, may be served and executed thereon in the same mode and manner and by the same officers as if the purchase or condemnation had not been made and upon the further express condition that the State reserves its entire power of taxation with respect to such tracts of land and may levy and collect all taxes now or hereafter imposed in the same manner and to the same extent as if this consent had not been granted." (Id. at p. 265, fn. 31, italics added, citing Stats. 1939, ch. 710, § 34.)
Thus, although previous to 1939 cession of federal military enclaves to the United States might not have reserved jurisdiction over state criminal processes, certainly cessions after that time did. It is the terms of any particular cession that will determine what rights, if any, were reserved by the state. As to the March Air Force Reserve Base, there is nothing whatsoever in the record to show the terms of any cession to the federal government. Defendant therefore cannot show that federal jurisdiction for purposes of enforcing the criminal law was exclusive.
We have discovered one case, People v. Mouse (1928) 203 Cal. 782, which reversed a state criminal conviction because the offense occurred on federal land. However, that case predated the 1939 statute reserving the right of criminal process as to any California cessions to the federal government. In addition, "Federal jurisdiction over offenses which are committed within the boundaries of this state and which are defined by state law is exceptional and, in trials in the courts of this state, such jurisdictional claims are ordinarily defensive matter. (See People v. Collins [(1895)] 105 Cal. 504, 509 .) Petitioner therefore should have alleged and proved in the trial court any facts which he now claims might have had the effect of vesting exclusive jurisdiction in the federal courts." (In re Carmen (1957) 48 Cal.2d 851, 855.) Similarly here, if defendant had wished to contest state jurisdiction over her, it was incumbent upon her to raise the issue defensively at her trial. She failed to do so and may not now complain on appeal.
Even the authorities upon which defendant relies do not support her position. She refers to 32 Code of Federal Regulations part 809a.3, concerning the entry policy onto Air Force installations: "Under Section 21 of the Internal Security Act of 1950 (50 U.S.C. 797), any directive issued by the commander of a military installation or facility, which includes the parameters for authorized entry to or exit from a military installation, is legally enforceable against all persons whether or not those persons are subject to the Uniformed Code of Military Justice (UCMJ). Military personnel who reenter an installation after having been properly ordered not to do so may be apprehended. Civilian violators may be detained and either escorted off the installation or turned over to proper civilian authorities. Civilian violators may be prosecuted under 18 U.S.C. 1382." (Italics added.)
While defendant reads this provision as an indication of the assertion of exclusive federal jurisdiction to regulate the conduct of both military personnel and civilians at Air Force installations, the text itself indicates that civilians behaving improperly on an Air Force Base may be turned over to the civilian police force. That is precisely what happened here. As defendant's probation report indicates, once she was detained at the exchange store, the store officials summoned the local police.
Finally, even if defendant could have been federally prosecuted for her crime, the federal government made no such assertion of jurisdiction. (Cf. People v. Branch (1955) 134 Cal.App.2d 572, 573 [Where a defendant has violated state criminal law and is regularly charged in state courts with its commission, it is no concern of the state court whether federal agents were derelict in their duty in not bringing the defendant before U. S. Commissioner, and the defendant cannot claim injury by failure of federal authorities to assert whatever prior claim to jurisdiction they may have had under the circumstances].)
No reversal for "lack of jurisdiction" is required.
II. The Trial Court's Brief Reference to Defendant's Prior Conviction Was Harmless
Defendant was charged with the offense of petty theft with a prior theft conviction in violation of Penal Code section 666. The information therefore properly alleged that defendant had three prior theft-related convictions. Before trial, defendant admitted the prior petty theft convictions.
At the commencement of trial, defense counsel inquired about the reading of the information to the jury, asking whether the prosecutor would mention "only" that defendant was being prosecuted for a petty theft. The trial court pointed out that the offense was for petty theft "with a prior conviction for theft." Defense counsel indicated that he would stipulate that defendant had a prior conviction. The court replied, "I don't think your stipulation prevents that fact from being mentioned because it's an element of the charge in Count 1, not just a special allegation." Defense counsel inquired further, "I think that if we enter into a stipulation, that it certainly can be mentioned to the jury, but it's a proven fact that she has suffered a prior, in fact, conviction." The court offered to limit the description of the charge as theft with a prior conviction for theft, without mentioning that any of the charge was for a felony, or that the prior theft conviction was a felony. Defense counsel accepted this procedure. "As a result of that stipulation," the court summarized, "I will simply state the charge as theft with a prior conviction for theft without referring to it as a felony."
Defendant now contends that, since she stipulated to the truth of the prior conviction, it should not have been mentioned in front of the jury, unless defendant decided to testify. (Pen. Code, §§ 1025, subd. (e) ["If the defendant pleads not guilty, and answers that he or she has suffered the prior conviction, the charge of the prior conviction shall neither be read to the jury nor alluded to during trial, except as otherwise provided by law"], 1093, subd. (a) ["If the accusatory pleading be for a felony, the clerk shall read it, and state the plea of the defendant to the jury, and in cases where it charges a previous conviction, and the defendant has confessed the same, the clerk in reading it shall omit therefrom all that relates to such previous conviction"].)
The "prior conviction" portion of a charge of "petty theft with a prior conviction" is not, strictly speaking, an element of the offense described in Penal Code section 666, but an allegation that increases the punishment (makes the offense eligible for felony status). (People v. Bouzas (1991) 53 Cal.3d 467, 478-480; People v. Stevens (1996) 48 Cal.App.4th 982, 987.) Thus, a defendant may stipulate to the prior conviction to preclude its mention in the presence of the jury. (Bouzas, at pp. 478-480.)
At the conclusion of the trial, the court told the jury: "This is a charge of theft with a prior conviction for theft," and "[t]he parties have stipulated that the defendant did suffer a prior conviction for theft, [so] "that single element . . . may be deemed to have been proved."
The trial court was evidently incorrect, as the prior theft offense is not an element of the charge. However, we conclude that the error was harmless.
The jury had a video recording of defendant's behavior in the store throughout the episode. Defendant was behaving somewhat erratically or agitatedly, as defense counsel admitted in closing argument. Defendant placed the perfume bottles inside the shoe box. Even if defense counsel could think of some conceivable explanation for that behavior (i.e., with many other items in the shopping cart, defendant may have been concerned about the small bottles falling and breaking), there was only speculation, not evidence, to support counsel's hypothesis, and that speculation was hardly plausible or reasonable. Among numerous other items that defendant's companion presented to the clerk at the checkout stand, the shoe box was scanned, but not the perfume inside the shoe box. The most obvious and reasonable conclusion was that defendant placed the bottles inside the shoe box for that very purpose, to obtain the items without paying for them.
The jury could see for themselves what defendant did and how she behaved; the brief mention of defendant's stipulated prior conviction was negligible in light of the video evidence and the loss prevention agent's testimony. It is not reasonably probable that the verdict would have been more favorable to defendant, had the court not mentioned defendant's prior theft conviction. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
KING
J.
MILLER
J.