Opinion
C041762.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. BRET ALAN PHILLIPS, Defendant and Appellant.
A Tehama County jury found defendant Bret Alan Phillips guilty of petty theft with prior theft-related convictions (Pen. Code, §§ 484, 666), and the trial court found to be true the allegations that defendant had served four prior separate prison terms (§ 667.5, subd. (b)) for burglaries in 1984, 1992, 1993, and 1995. Defendant absconded while on bail before sentencing and thereafter was convicted in San Joaquin County for receiving stolen property in a separate case. He received an aggregate prison term of seven years and eight months for the two convictions and the enhancements.
On appeal, defendant contends (1) there was insufficient evidence to support his theft conviction, and (2) his trial counsel was ineffective for not objecting to what defendant believes was prosecutorial misconduct in closing argument. We find no error and shall affirm the judgment.
DISCUSSION
Tehama County Deputy Sheriff Don Bowen was on patrol shortly after midnight in Red Bluff, when he saw defendant driving a pickup truck filled with pallets that were not tied down. As the truck turned, some pallets fell out.
Deputy Bowen stopped the truck and spoke to defendant, who said he was coming from his ranch "in Paskenta," on "Lowery," and from "Chico," although he was driving toward that area. After Bowen was informed by another officer that pallets were missing from the nearby Grocery Outlet, defendant admitted that he took the pallets from the back of the store because there was flooding in his garage.
At trial, a family friend testified that defendant went to get pallets because building materials belonging to defendants mother were getting wet in a storm. The Grocery Outlets owner testified that no one had permission to take or borrow the pallets, which belonged to a canned food company. The store was assessed $5.00 per pallet.
Defendants mother testified that she sent defendant to get some pallets from the Grocery Outlet to place under her building materials because her garage and patio were flooded. She claimed that her husband had obtained pallets from the store in the past. According to her, she did not intend for defendant to steal any pallets.
DISCUSSION
I
Defendant claims there was insufficient evidence that he "formed the intent to permanently deprive the owner of the items involved." Specifically, he contends the circumstantial evidence demonstrated that he only took the pallets from the market "to deal with a temporary emergency situation." We are not persuaded.
"`To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole." (People v. Carpenter (1997) 15 Cal.4th 312, 387, quoting People v. Johnson (1993) 6 Cal.4th 1, 38; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)
In order to be guilty of theft, a defendant must take the personal property of another with the specific intent to permanently deprive the owner of his property. An intent to permanently deprive includes an "intent to take the property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment." (People v. Avery (2002) 27 Cal.4th 49, 52.)
Based upon the circumstances of the taking, such as defendants evasive conduct, his contradictory statements, and the midnight hour, a reasonable jury could conclude that defendant wanted the pallets for his mother and did not intend to give them back to the grocery store. There was no evidence that he sought or obtained anyones permission to take the pallets, which is a usual social prerequisite to "borrowing." The question of defendants intent was squarely presented to the jury in argument by both counsel. The jurys conclusion was not irrational or unsupported by the evidence.
II
Defendant contends the prosecutor committed misconduct in argument by implying that the burden of proof was on defendant to present evidence disproving the Peoples case. Therefore, he argues, his counsels failure to object to the prosecutors comments constituted ineffective assistance of counsel.
Defendant challenges the following statement made by the prosecutor in closing argument:
"The reason for committing a crime is not a defense. I submit to you that there is not enough evidence put on by the defense to show that he was merely borrowing. There is not a shred of it. But there is to show that he intended to keep it."
In defendants view, this statement told the jury that it was defendants job to disprove an element of the prosecution case, thereby lessening the Peoples burden to prove each element beyond a reasonable doubt. Thus, defense counsels failure to object and ask for a curative admonition permitted the jury to assume that defendant was required to give an explanation for his conduct. We disagree.
In order to show ineffective assistance for failure to object, defendant must demonstrate both that his counsels performance was below professional standards and that, but for the error, the outcome would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 684-685, 694 [80 L.Ed.2d 674, 691-692, 697-698]; People v. Catlin (2001) 26 Cal.4th 81, 165.)
Here, taken in context, the prosecutors argument was a proper comment on the adequacy of the defense. Although there was evidence that an emergency prompted the taking of the pallets, there was no testimony that defendant intended to soon return the pallets to the store rather than to keep them.
Because the prosecutors argument was not misconduct, defense counsel was not ineffective for failing to object and seek a curative admonition. (People v. Constancio (1974) 42 Cal.App.3d 533, 546 ["It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel"].)
DISPOSITION
The judgment is affirmed.
We concur, NICHOLSON, J., ROBIE, J.