Opinion
A130706
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. ALOYSIUS A. MCELROY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC071655)
Defendant Aloysius McElroy (McElroy) appeals from his conviction of petty theft with prior theft-related convictions. He maintains no substantial evidence supports his conviction. We affirm.
BACKGROUND
The charges against McElroy arise out of a shoplifting incident at a Target store in the Tanforan Mall in San Bruno on August 3, 2010. The store was equipped with a video surveillance system, which filmed continuously while the store was open. Regnaldo Woods, a Target security officer, went to the security office where the video surveillance system was located at about 2:50 p.m. He observed McElroy on the surveillance system take a package of batteries from a shelf, walk behind a pillar, and put them in his jacket pocket. McElroy then went to the furniture department, where Woods could no longer see him.
Woods's supervisor, Jose Cortes, had also been observing McElroy on the store floor. Cortes, wearing plainclothes, followed McElroy from the battery section of the store to the domestics section. McElroy selected more batteries from a display in the domestics section. He then headed to the kitchen department, where he picked up more batteries. McElroy went to the toy department, where Cortes saw him put the batteries he had been carrying into his jacket pocket. Cortes followed him as he got on the escalator going down to the first floor. McElroy exited the store, but when he saw Cortes he walked back inside. McElroy told him " 'You can't apprehend me, I'm already inside the store.' " Cortes detained McElroy, and escorted him to Target's "booking room." He told McElroy to "pull out all the merchandise that he had." McElroy removed about four packages of batteries.
Cortes called police. A police officer searched McElroy and found another package of batteries on the "inside part" of his coat. The retail value of the batteries was $59.00.
McElroy testified at trial and admitted putting the batteries in his jacket pocketand exiting Target into the mall. He "just stood" outside the store for about 10 seconds, then walked back inside Target and immediately "bumped into" Cortes, who identified himself as Target security. McElroy testified he went back inside the store because: "I didn't feel very comfortable. I had batteries on me and I decided to walk back into the store because it was the right thing to do. I just felt better being inside the store." When asked what he was going to do with the batteries when he re-entered the store, he explained "I was either going to return them or—no, I was probably going to pay for them. I mean, I made that clear to Regnaldo Woods that I was going to pay for the batteries." He testified he had $6.00 in cash and a debit card with an available balance of approximately $75.00.
On cross-examination, McElroy testified he remembered having batteries in his pockets, but did not remember putting them there.
The parties stipulated that "a review of the property on Mr. McElroy on August 3rd, 2010, shows there was $6 in cash on the debit card . . . and no other form of currency." McElroy's counsel suggests the stipulation was mistranscribed, and should have been "$6 in cash and the debit card."
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McElroy also admitted shoplifting batteries from the same Target in September 2009. He further admitted having four theft-related priors, and that he had served a prior prison term.
The jury found McElroy guilty as charged of petty theft with four prior theft-related convictions. (Pen. Code, § 666.) The court suspended imposition of sentence and placed McElroy on probation for three years, subject to certain conditions. This timely appeal followed.
DISCUSSION
McElroy contends no substantial evidence supported his conviction. He maintains "[t]he unique facts of this case show that when [he] put the various battery packages in his pockets, he did not have the specific intent to deprive Target of these items at all, much less permanently."
The standard of review in determining whether substantial evidence supports a verdict is well settled. "On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses 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. [Citations.] ' "[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' " (People v. Snow (2003) 30 Cal.4th 43, 66, quoting People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) " ' " ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' " (People v. Rodriguez (1999) 20 Cal.4th 1, 11, quoting People v. Stanley (1995) 10 Cal.4th 764, 792.)
One of the elements of theft is that the defendant must have " 'the specific intent at the time of the taking to permanently deprive the owner of the property.' " (In re Jesus O. (2007) 40 Cal.4th 859, 867, quoting People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.) "[O]ne need not remove property from the store to be convicted of theft of the property from the store. [Citations.] One need only take possession of the property, detaching it from the store shelves or other location, and move it slightly with the intent to deprive the owner of it permanently." (People v. Shannon (1998) 66 Cal.App.4th 649, 654.)
The evidence showed that McElroy put several packages of batteries in different pockets while inside Target. The surveillance videotape showed McElroy selected batteries and went behind a pillar out of sight of the surveillance camera for several seconds. The videotape also showed McElroy leaving the store in a suspicious manner. He walked to the exit, turned and looked around, walked back into the store, and then turned around again and went out the exit. Cortes testified when McElroy first turned around, Cortes picked up a case of water to make it appear he was a shopper. McElroy then turned around and exited the store. Cortes followed him, and "once [McElroy] observed [Cortes] walking towards him he immediately returned to the store to try to reenter." McElroy made no attempt to pay for the batteries before he left the store, and admitted he had stolen batteries from Target before. A reasonable jury could well find this evidence demonstrated McElroy's intent to permanently deprive Target of the batteries at the time he took them.
McElroy testified he returned to Target because he "didn't feel very comfortable. I had batteries on me and I decided to walk back into the store because it was the right thing to do. I just felt better being inside the store." When asked what he was going to do with the batteries when he re-entered the store, he explained "I was either going to return them or—no, I was probably going to pay for them. I mean, I made that clear to Regnaldo Woods that I was going to pay for the batteries."
McElroy maintains his "conduct did not show an intent to deprive Target of the batteries permanently when he removed the merchandise from the displays." He points to the fact that "no electronic sensor alerted [him] that he was leaving with merchandise for which he had not paid," and that he did not flee but "returned to the store with sufficient means to pay for the batteries." The issue, however, was McElroy's intent at the time he put the batteries in his jacket. None of these facts have any bearing on his intent at the time he took the batteries. And, McElroy's testimony that he returned to the store with the batteries because "it was the right thing to do" and intended to return or pay for them could well be viewed as evidence of his consciousness of guilt.
DISPOSITION
The judgment is affirmed.
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Banke, J.
We concur:
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Marchiano, P. J.
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Margulies, J.