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People v. Zazueta

California Court of Appeals, Fourth District, Third Division
Feb 22, 2011
No. G043423 (Cal. Ct. App. Feb. 22, 2011)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County, No. 09WF1478 Lance Jensen, Judge.

Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

IKOLA, J.

A jury convicted defendant Marcos Robledo Zazueta of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)); misdemeanor battery (§ 242); and second degree commercial burglary (§§ 459, 460, subd. (b)). In a bifurcated proceeding, defendant admitted he had previously served a prison term for a felony within the previous five years, as contemplated by section 667.5, subdivision (b). The court sentenced defendant as follows: three years in state prison for second degree robbery (§ 213, subd. (a)(2)); one year in state prison to be served consecutively for the prior prison term as required by section 667.5, subdivision (b); and 180 days of local custody for the misdemeanor battery count (§ 243, subd. (a)). Pursuant to section 654, the court stayed execution of a concurrent two-year prison term for defendant’s burglary conviction.

All statutory references are to the Penal Code.

Defendant raises two issues on appeal. First, defendant claims the court should have granted his section 1118.1 motion as to count 3, second degree commercial burglary, because there was insufficient evidence to support a finding defendant intended to commit a felony when he entered Fry’s Electronics store on the night of the incident in question. Alternatively, defendant claims his burglary conviction must be reversed because the court did not instruct the jury, sua sponte, with a petty theft instruction. We reject both assertions and affirm the judgment.

FACTS

Defendant was inside a Fry’s Electronics store at approximately 9:00 p.m. on June 26, 2009. Defendant wore a “huge” jacket, despite comfortable temperatures (defendant was also wearing shorts and flip-flops). Defendant selected an MP3 player, put it into his jacket, and walked out of the store without paying for the item. Several employees followed defendant and, after a scuffle, subdued him. The employees recovered the MP3 player, an item priced at $249.99. Police officers arrived and arrested defendant. The police found a silver metal box cutter in defendant’s jacket pocket.

One employee testified that, in her experience, large jackets are often used to conceal shoplifted items. One of the officers testified box cutters are a commonly used burglary tool.

DISCUSSION

Sufficiency of the Evidence

Defendant characterizes his first argument as a challenge to the trial court’s denial of a section 1118.1 motion with regard to count 3, second degree commercial burglary. “On a motion for judgment of acquittal under section 1118.1, the trial court applies the same standard as an appellate court reviewing the sufficiency of the evidence. The court must consider whether there is any substantial evidence of the existence of each element of the offense charged, sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. [Citation.] We independently review the trial court’s ruling.” (People v. Harris (2008) 43 Cal.4th 1269, 1286.) We note that as defendant did not put on any evidence in his defense, our review in this case is indistinguishable from a straightforward appeal of the sufficiency of the evidence supporting the jury’s conviction of defendant for second degree commercial burglary.

“Every person who enters any... store... with intent to commit grand or petit larceny or any felony is guilty of burglary.” (§ 459.) Defendant claims there is insufficient evidence to support a finding he intended to commit larceny or another felony when he entered the store. Defendant points to the lack of evidence pertaining to his state of mind or demeanor at the time he entered the store (i.e., either admissions by defendant or testimony by a witness who observed defendant’s entry into the store).

But defendant ignores circumstantial evidence supporting a finding defendant intended to commit a theft when he entered the store. “[T]he existence of the requisite intent is rarely shown by direct proof, but may be inferred from facts and circumstances. [Citation.] Evidence of theft of property following entry may create a reasonable inference that the intent to steal existed at the moment of entry.” (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) Here, defendant wore a large jacket, had a box cutter inside a store, and left the store without paying for an MP3 player hidden in his jacket. There is substantial evidence supporting the jury’s finding he intended to commit larceny when he entered the store.

Jury Instructions

Defendant also claims the court erred by not, sua sponte, instructing the jury with a petty theft instruction (CALCRIM No. 1800) as a lesser included offense of burglary. But petty theft is not a lesser included offense of burglary. (People v. Bernal (1994) 22 Cal.App.4th 1455, 1458; People v. Tatem (1976) 62 Cal.App.3d 655, 658.) Courts cannot instruct juries on a crime merely because such offense is supported by the evidence; courts should only instruct the jury on charged offenses or lesser included offenses of charged offenses. (See People v. Birks (1998) 19 Cal.4th 108, 136 [even when requested by defendant, court should not instruct “on lesser offenses which are not necessarily included in the charge”]; People v. Breverman (1998) 19 Cal.4th 142, 154-155, 161-162; People v. Tatem, supra, 62 Cal.App.3d at pp. 657-658.) Defendant’s assertion of instructional error is incorrect.

The court did instruct the jury with CALCRIM No. 1800 as a lesser included offense of count 1, robbery; thus, the jury was offered the option of convicting defendant of petty theft rather than robbery.

DISPOSITION

The judgment is affirmed.

WE CONCUR: O’LEARY, ACTING P. J., ARONSON, J.


Summaries of

People v. Zazueta

California Court of Appeals, Fourth District, Third Division
Feb 22, 2011
No. G043423 (Cal. Ct. App. Feb. 22, 2011)
Case details for

People v. Zazueta

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARCOS ROBLEDO ZAZUETA, Defendant…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Feb 22, 2011

Citations

No. G043423 (Cal. Ct. App. Feb. 22, 2011)