Opinion
C082494
12-05-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANTHONY RIVAS, SR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62137975)
On three separate occasions, defendant Joseph Anthony Rivas, Sr., either stole or tried to steal a large amount of candy from a grocery store. Each time he was caught on the store's video surveillance system. A jury convicted him of two counts of second degree burglary, grand theft of property, attempted grand theft, shoplifting, and petty theft. After he admitted various prior felony conviction allegations, the court sentenced him to state prison for an aggregate term of seven years four months.
On appeal, defendant contends (1) insufficient evidence supports the burglary and grand theft convictions, (2) the court failed to instruct the jury that shoplifting was a lesser included offense of burglary, and (3) the court abused its discretion in refusing to strike his prior strike conviction under Penal Code section 1385. Finding no merit to his contentions, we shall affirm.
Further undesignated statutory references are to the Penal Code.
FACTS AND PROCEEDINGS
On September 29, 2014, defendant walked into the Auburn Grocery Outlet, filled a shopping cart with numerous boxes of bulk candy and several bags of chips, and left without paying for the merchandise. Video surveillance cameras recorded the September 29 incident. Defendant was wearing a distinctive sweater, and his picture was posted in the employee break room to alert staff to watch out if he returned.
On October 3, 2014, defendant did return. Like before, he entered the store and filled a shopping cart with numerous boxes of bulk candy. He left the store without the cart, however. Video surveillance captured the October 3 incident.
On October 18, 2014, defendant returned to the store. Again, he grabbed a shopping cart and went to the bulk candy aisle. He filled the cart with numerous boxes of bulk candy, but left without taking the cart. Video surveillance recorded the October 18 incident.
The owner of the store, John Stevens, testified that he rang the items in the October 3 cart and the October 18 cart through the register to determine the value of the goods in each cart. Brittany Stevens, John's daughter and the store manager, also testified to ringing the left-behind items with her father to determine their value. The items in the October 3 cart totaled $1,028.67. The items in the October 18 cart totaled $925.80. Receipts were generated, but not retained.
Based on the value of the items in the carts left behind, John estimated that the value of the items defendant took on September 29 was $1,090.23. He figured the amount exceeded the $1,028.67, the value of the October 3 cart, and was closer to $1,100.00 because there were more items in the September 29 cart.
John arrived at this amount by viewing the video, observing the amount of product missing from the shelves, and comparing it to the October 3 cart that was left behind. From the video, he observed at least 37 boxes of the bulk candy in the September 29 cart, more boxes than in the October 3 cart that was retrieved while still inside the store. He testified that the full boxes of candy in that aisle generally contained either 36 or 48 pieces, although some, but not many, contained 24 pieces. Each individual piece of candy was worth $0.69. He reached the $1,090.23 value based on the following calculation: 37 boxes of candy with 42 units per box (an average of 48 & 36 units) at $0.69 per unit, which equaled $1,072.26. The cart also contained three large bags of chips at $5.99 each, for another $17.97. The total of the candy ($1,072.26) and the chips ($17.97) equaled $1,090.23.
An August 2015 information charged defendant with second degree commercial burglary and grand theft for the September 29 incident (counts one & two), second degree commercial burglary and attempted grand theft for the October 3 incident (counts three & four), and shoplifting and attempted petty theft for the October 18 incident (counts five & six). For counts one through four, the information alleged defendant had a prior serious or violent felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had served two prior prison terms (§ 667.5, subd. (b)).
At trial, defendant did not dispute that he entered the store and either stole or tried to steal the chips and candy on each of the three occasions. Instead, his sole defense was that the value of the merchandise in each instance was less than $950. Surveillance videos capturing the September 29, October 3, and October 18 incidents were shown to the jury.
The jury convicted defendant of all charges, and defendant later admitted all prior conviction allegations. The court sentenced defendant to an aggregate term of seven years four months in prison calculated as follows: the midterm of four years for the count one burglary offense, a consecutive term of one year four months (one third the midterm) for the count three burglary conviction, a concurrent 180 days for the count five misdemeanor shoplifting offense, and a concurrent 90 days for the count six misdemeanor attempted petty theft conviction. The court imposed but stayed the midterms of four years for the count two grand theft and two years for the count four attempted grand theft. The court imposed an additional two years for defendant's two prison priors (§ 667.5, subd. (b)). Defendant timely appealed.
DISCUSSION
I
Sufficient Evidence Supports the Burglary and Grand Theft Convictions
Defendant contends insufficient evidence supports the burglary and grand theft convictions in counts one and two, which were both based on the September 29 incident where defendant actually stole candy and chips from the store. In his view, substantial evidence does not show that he stole more than $950 worth of goods that day because the store owner merely speculated as to the value of the candy. We disagree with defendant's view of the evidence, and conclude that substantial evidence supports the burglary and grand theft convictions in counts one and two.
When considering a sufficiency of the evidence challenge, we must " ' "review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence--i.e., evidence that is credible and of solid value--from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." ' " (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We may not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "[O]ur opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment." (Hill, at p. 849.) Reversal for insufficient evidence is warranted only where it clearly appears that upon no hypothesis whatever is there sufficient evidence to support a conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Massie (2006) 142 Cal.App.4th 365, 371.) Thus, "[t]he substantial evidence rule is generous to the respondent on appeal . . . ." (People v. Small (1988) 205 Cal.App.3d 319, 325.)
In this case, John Stevens, the store's owner, testified to the number and value of the stolen items on September 29. John had been in the grocery business for over 40 years. The testimony of the owner of stolen property, or an expert who is familiar with the items and their value, is sufficient to establish the value of an item for purposes of the theft statutes. (See, e.g., People v. Lizarraga (1954) 122 Cal.App.2d 436, 437-438 [sufficient evidence supported grand theft conviction where store owner with 25 years of experience in fur business and another experienced fur expert testified to fair market value of stolen fur]; People v. Coleman (1963) 222 Cal.App.2d 358, 361-362 [testimony of owner of tools sufficient to establish value of the stolen tools where owner had purchased tools and was familiar with price].)
Here, John testified that he observed approximately 37 boxes of candy on the September 29 surveillance video. The video was shown to the jury and in closing, the prosecutor urged the jury to count the boxes as well during deliberations. Upon viewing a close-up shot of the shopping cart, John testified that he observed "[f]ull cases of the candy, and on top of that it appears three large bags of Frito-Lay chips . . . ."
As the store owner, John was familiar with the number of individual units generally contained in the bulk candy boxes and he testified that the cost of each individual piece of candy was $0.69. Each box usually contained either 36 or 48 units. To calculate the value of the candy in the September 29 cart, John averaged 48 and 36, for 42 units per box, and then multiplied the per unit price of $0.69 to get the price per box. He then multiplied the price per box times 37 boxes. He added the cost of the three bags of chips that were visible in the video as well for a total of $1,090.23.
John testified that the September 29 cart contained more candy than the October 3 cart, the exact value of which was determined to be $1,028.67. In describing the difference between the two carts, John said "[t]here [were] less full cases of candy" in the October 3 cart as compared to the September 29 cart. When defense counsel questioned whether any of the cases in the October 3 cart were "open," John responded "[n]o." Based on John's testimony, the jury could reasonably infer that defendant was trying to steal full rather than partial boxes of candy, and that the September 29 cart contained at least 37 full boxes of candy.
To exceed the $950 threshold for the second degree commercial burglary and grand theft offenses, defendant would have had to steal $932.04 worth of candy since he also stole $17.97 worth of chips. Assuming all of the boxes contained 48 pieces of candy, defendant would have had to steal a little over 28 boxes to reach the necessary value (48 units per box at $0.69 per unit equals $33.12). If all of the boxes contained 36 pieces of candy, defendant would have had to steal a little over 37 boxes of candy to exceed the $950 value (36 units per box at $0.69 per unit equals $24.84). If 33 of the boxes had 36 units, only 4 of the boxes would need to have 48 units to cross the $950 threshold.
From the video, John was able to identify some of the candy that defendant had placed in the cart. He observed boxes of Starbursts and Skittles, which he testified included 36 units per box. He also testified to seeing boxes of chocolate bars in the cart, although he could not identify the specific brand. According to John, the chocolate bars tended to be in larger quantities, normally 48 bars to a box.
Because he testified to seeing multiple chocolate boxes in the cart, which had 48 units per box, the jury could reasonably infer that defendant stole over $950 worth of candy and chips, even if it assumed the majority of the candy boxes contained 36 units. The evidence, then, was sufficient to establish the minimum value necessary for the count one burglary and the count two grand theft convictions.
II
Instructional Error
Defendant next contends that the court erred in refusing to instruct the jury that shoplifting was a lesser included offense of the burglary charged in count one. Had the court so instructed the jury, he contends it is reasonably probable that the jury would have found him guilty of shoplifting rather than burglary. We disagree.
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)
This instructional requirement includes the duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater. (Breverman, supra, 19 Cal.4th at p. 157.) The duty exists even when the lesser included offense is inconsistent with the defendant's own theory of the case and the defendant objects to the instruction. (Id. at pp. 154, 157.) This rule "seeks the most accurate possible judgment by 'ensur[ing] that the jury will consider the full range of possible verdicts' included in the charge, regardless of the parties' wishes or tactics." (Id. at p. 155.) "Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense." (Ibid.)
There are two tests for "determining whether an uncharged offense is necessarily included within a charged offense: the 'elements' test and the 'accusatory pleading' test." (People v. Reed (2006) 38 Cal.4th 1224, 1227.) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (Id. at pp. 1227-1228.) Defendant does not claim that shoplifting is necessarily included within the burglary charged in count one under the accusatory pleading test. He does, however, argue that it is necessarily included under the elements test.
Under section 459, a burglary is committed when a person enters a shop or other building with the intent to commit grand or petit larceny or any felony. (§ 459.) Shoplifting, by contrast, is committed when a person enters a commercial establishment while the establishment is open during regular business hours with the intent to commit larceny and the value of the property that is taken or intended to be taken does not exceed $950. (§ 459.5, subd. (a).) In reviewing the plain language of the statutes, it is clear that burglary does not contain all of the elements of shoplifting. In other words, one could commit a burglary without committing shoplifting--for example, either by taking or intending to take more than $950, entering a commercial building after regular business hours, or entering a building that does not qualify as a commercial establishment. Under the elements test, then, shoplifting is not a lesser included offense of burglary, and the court did not err in refusing to give the instruction.
III
Romero
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). --------
Defendant contends the trial court erred in failing to strike his prior serious felony conviction for robbery pursuant to Romero. Given his relatively minor convictions for stealing candy, which were not violent and were likely motivated by his need to obtain drugs, defendant argues the court should have stricken his prior strike. We disagree.
A trial court has discretion to strike a prior serious felony conviction only if the defendant falls outside the spirit of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.) "[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) In deciding whether to strike a prior conviction, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, at p. 161.)
The trial court's "failure to . . . strike a prior [felony] conviction allegation is subject to review under the deferential abuse of discretion standard." (Carmony, supra, 33 Cal.4th at p. 374.) A trial court abuses its discretion when it refuses to strike a prior felony conviction only in limited circumstances, such as where the court is unaware of its discretion to dismiss or considers impermissible factors in refusing to dismiss, or if the sentencing norm under the three strikes law leads, as a matter of law, to an arbitrary, capricious, or patently absurd result under the circumstances of the individual case. (Id. at p. 378.) It is not sufficient to show that reasonable people might disagree about whether to strike a prior conviction. (Ibid.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
Before ruling on defendant's request to strike, the court read and considered the probation report, defendant's Romero motion and its attachments, including multiple letters from family members and one from a drug treatment program, as well as supplemental information regarding the drug treatment program, and the People's opposition to the motion. The court also heard arguments of counsel and defendant's own statement at the hearing. Defendant described his rough childhood, and admitted he had never held a job although he was 35 years old at the time. Although he was incarcerated for 10 years for the armed robbery conviction, he never obtained a GED or other diploma.
The court outlined in detail the factors it evaluated in determining whether to exercise its discretion to strike defendant's prior armed robbery conviction. It further explained that it had to consider the totality of the circumstances rather than focusing on a single factor.
Among the factors considered were defendant's due process, equal protection and cruel and usual punishments rights, society's interest, the nature and circumstances of defendant's past convictions and sentences as well as the nature and circumstances of his current offenses, the remoteness of any prior convictions and any intervening criminal conduct, the violent or nonviolent nature of prior and current offenses, defendant's drug addiction and his failure to seek treatment for the problem, defendant's unsatisfactory history on probation or parole, and the seriousness of the current offense, which the court found was not trivial. Weighing in defendant's favor, the court found he had cooperated with police and had taken the case to a jury trial after legitimately disputing the value of the merchandise at issue. The court also considered defendant's background, character and prospects, and his age and his family relationships. After balancing all of the above factors in light of the purposes of the three strikes law, the court denied the motion.
It is plain the court did not consider any impermissible factor in reaching its decision. (Williams, supra, 17 Cal.4th at p. 161[court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit"].) Nor can we say that following the sentencing norms established by the three strikes law led, in this matter, to a result that was arbitrary, capricious, or patently absurd given defendant's long criminal history, untreated drug addiction, poor performance on probation or parole, and low future prospects. Defendant fell squarely within the ambit of the three strikes law, and the trial court's decision against striking his prior conviction for purposes of sentencing was well within its discretion.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Nicholson, J. /s/_________
Duarte, J.