Opinion
No. 54149-8-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-07077-3. Judgment or order under review. Date filed: 04/02/2004. Judge signing: Hon. Steven Scott.
Counsel for Appellant(s), Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Corey Marika Endo, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Alice Degen, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
RCW 9A.56.010(18)(c) allows multiple incidents of third degree theft to be aggregated and charged as theft in the first or second degree. The statute does not abrogate the common law rule allowing aggregation of incidents of theft from the same owner and the same place under a general scheme or plan. Here, aggregation of thefts into one count falls under the common law rule. We therefore reject Noble's challenge to her conviction of second degree theft. Because the trial court did not violate Noble's right to a jury trial in considering the fact of prior convictions in determining her offender score, we affirm the sentence as well.
FACTS
Rebekah Yancey was the manager of the Northgate Lane Bryant store. In the spring of 2002, Yancey saw Charrita Noble and another young woman enter the store, grab 15 pairs of pants valued at $44.50 per pair, and run from the store. A few weeks later, Yancy saw Noble and another individual enter the store, grab several items from a rack, and run away.
On April 15, 2002, Yancey saw Noble and an older woman enter the store. Yancey recognized Noble and watched her. Noble stayed near the front of the store while the woman picked up a shirt and said she was going to try it on, walking behind a piece of equipment A minute later, Yancey heard them whispering, `You got the shirt?' `Yeah, let's go,' and they left the store. Yancey could not find the shirt in the store after the women left. Yancey took her break and walked into the mall. She saw the women at the Brookstone store, and when the older woman left the store, Yancey followed her and watched her get into a car. Yancey called and gave the police the woman's license plate number.
Report of Proceedings (RP) (Feb. 12, 2003) at 40.
On January 21, 2003, Yancey saw a young woman walk into the store and pick up a stack of 10 to 15 pair of chino pants valued at $39.50 per pair. Noble was standing at the front of the store. Yancey walked to the front of the store and saw the young woman put the pants into a large bag held by Noble. As the young women then left the store, Yancey said, `Can I help you?' and `Can you please stop?' The women met a third woman, who said `Let's go,' and they walked off into the mall. Because she had seen Noble participating in several incidents, Yancey called the police.
Id. at 35.
Id. at 33.
Approximately 15 to 20 minutes later, Officer Steve Berg called and asked Yancey to look at three women who were in the mall; she immediately identified Noble as the person who had held the bag and carried the pants out of the store.
Noble was charged with one count of second degree theft. The to-convict instruction stated that the jury could convict Noble if either (a) The property exceeded $250 in value; or (b) The defendant's acts were part of a common scheme or plan, and the combined value of the property exceeded $250 in value.
During closing argument, the prosecutor explained to the jury that they could find guilt on the basis of either the January 21, 2003 theft or all the other incidents together. The jury returned a general verdict of guilt. Noble appeals.
DISCUSSION
Aggregation. Noble contends the evidence was not sufficient to support both alternative means set out in the to-convict instruction. Such a challenge admits the truth of the State's evidence and all reasonable inferences from it. In determining whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we draw all reasonable inferences from the evidence in favor of the State. Specifically, she contends the evidence was insufficient on the aggregation alternative means.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Id.
RCW 9A.56.010(18)(c) permits a series of third degree thefts to be aggregated and charged as one count whenever they are `part of a criminal episode or a common scheme or plan.' Noble contends the statute limits aggregation to incidents that individually constitute only third degree theft, and that the State may not aggregate where any individual theft involves property valued at more than the minimum value for second degree theft ($250).
This is incorrect. At common law, theft from the same owner and same place may be a series of crimes, or a single crime. The State has `considerable latitude to either aggregate charges or to bring multiple charges.' The aggregation statute authorizes aggregation in specific circumstances, but it `does not purport to abrogate the common law principle . . . [that] property stolen from the same owner and from the same place by a series of acts constitutes one crime if each taking is the result of a single continuing criminal impulse or intent pursuant to a general larcenous scheme or plan.'
State v. Kinneman, 120 Wn. App. 327, 337, 84 P.3d 882 (2003), review denied, 152 Wn.2d 1022 (2004).
State v. Barton, 28 Wn. App. 690, 694, 626 P.2d 509 (1981) (citing Vining, 2 Wn. App. at 808).
In this case, the cropped pants, the items taken from the standing rack, the shirt, and the chino pants all belonged to Lane Bryant. All the incidents occurred at the Northgate Lane Bryant store and comprised a general scheme or plan to shoplift from that store. Although the prosecutor stated during closing that the value of three of the four shoplifts was over $250, the only evidence of value related to the cropped pants and the chino pants, which were each worth over $250. There was sufficient evidence of both alternative means.
Noble contends the State improperly relied on a theft from the Brookstone store to meet the aggregation requirements. Noble is mistaken. During closing, the prosecutor referred to one incident as `the Brookstone incident' in describing the theft of a shirt from Lane Bryant that occurred prior to Yancey's sighting Noble in Brookstone.
Calculation of Offender Score. Relying on Apprendi v. New Jersey and Blakely v. Washington, Noble contends that the trial court's use of three prior adult convictions to determine her offender score violated her right to a jury trial as to every fact that increased her authorized punishment. "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." At sentencing, Noble stipulated to her criminal history. Her prior convictions were entered pursuant to proceedings that provided her with all necessary constitutional safeguards.
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Id. at 2536 (quoting Apprendi, 530 U.S. at 490).
Apprendi, 530 U.S. at 488.
It is not `impermissible for judges to exercise discretion taking into consideration various factors relating both to offense and offender in imposing a judgment within the range prescribed by statute.' In this case, the trial court used the prior convictions to determine the prescribed standard range, including the statutory maximum. Noble received a standard range sentence for this crime.
Id. at 481.
Noble takes issue with the rule exempting prior convictions from proof to a jury. This argument requires an abandonment of Almendarez-Torres v. United States, which the Supreme Court expressly reaffirmed in Blakely. We decline Noble's invitation to abandon Almendarez-Torres.
523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
The trial court did not violate Noble's constitutional rights at sentencing.
Affirmed.
ELLINGTON, SCHINDLER and KENNEDY, JJ.