target="G047057_files/props0002.xml">
P. v. Orji
Filed 1/25/13
P. v. Orji CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
OKEZIE AUGUSTUS ORJI,
Defendant and Appellant.
G047057
(Super. Ct. No. 12CF0571)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, David A. Hoffer, Judge.
Affirmed.
Allison
K. Simkin, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
We
appointed counsel to represent Okezie
Augustus Orji on appeal. Counsel filed a
brief that set forth the facts of the case.
Counsel did not argue against her client, but advised the court no
issues were found to argue on his behalf.
Orji was given 30 days to file written argument on his own behalf. That period has passed, and we have received
no communication from him.
Pursuant to
(Anders), to assist the court in
conducting its independent review,
counsel provided the court with information as to issues that might arguably
support an appeal. Counsel listed as possible but not arguable issues: (1) whether there was sufficient evidence to
convict Orji of theft; and (2) whether there was sufficient evidence to support
a finding Orji had suffered three prior theft convictions pursuant to Penal
Code section 666.
name="_ftnref1" title="">[1]
We have
reviewed the information provided by counsel and have independently examined
the record. We found no
v. Wende (1979) 25 Cal.3d 436.) The
judgment is affirmed.
FACTS
Javier
Corea, the owner of Recycle Tech Digital Salvage, reported a laptop stolen from
his store on June 7, 2011. Corea
reported security cameras recorded the theft of the laptop. The video was presented to the jury at trial,
and Corea identified Orji in the video.
Corea testified Orji had been in his store many times prior to June
7. The video from June 7 showed Orji
being in the store for approximately five minutes. He initially is seen interacting with a store
employee by the name of Israel Olivera, and later standing in front of a glass
cabinet. The area in front of the glass
cabinet is a public area, but the area behind is not. Laptops, routers, and other equipment are
kept in the glass cabinet. The video
shows no employees present as Orji stretches to reach his left hand and then
his right hand over and behind the glass cabinet. He is next seen reaching back and adjusting
his pants.
Shortly
thereafter, Olivera returns and he and Orji appear to engage in conversation
for a few moments. When the employee
leaves a second time, Orji is observed pacing back and forth in the vicinity of
the glass cabinet. As the only other
customer in the store walks away, Orji reaches around the back of the glass
cabinet and retrieves a laptop and sets it on the counter. Orji leaves the laptop on the counter and
appears to be speaking with the other customer who has returned to the
area. When that customer again walks
away, Orji steps in front of the counter where the laptop is located and
reaches both hands around behind him.
When Orji steps away, the laptop is no longer on the counter, and Orji
is seen vigorously adjusting the back of his pants. When the employee returns, Orji appears to
speak with the employee for a few seconds and then immediately leaves the
store.
After
Orji leaves the store, Olivera advised Corea a laptop valued at between $200
and $300 was missing. Olivera testified
the laptop was there before Orji came into the store and gone after he
left. Orji was not given permission to
remove any items from the glass cabinet.
The
jury convicted Orji of one count of theft with a prior conviction
(§§ 666, subd. (a), 484, subd. (a), 488-count 1). In addition to the theft count, the
information alleged the following: Orji
had suffered five prior theft convictions pursuant to sections 484, subdivision
(a), and 488; a prior strike pursuant to sections 667, subdivisions (d) and
(e)(1), and 1170.12, subdivisions (b) and (c)(1); and two prison priors
pursuant to section 667.5, subdivision (b).
The court granted Orji’s motion to bifurcate the trial and hear the
priors separately.
After
the jury convicted Orji of the theft count, he waived his right to a jury trial
on the alleged priors. After receiving
evidence and hearing argument from counsel, the trial court initially found
true beyond a reasonable doubt two of the priors alleged in count one. After being advised by the prosecutor that a
finding on only two of the alleged priors would result in a misdemeanor
conviction rather than a felony, the court indicated it had only looked at
exhibit Nos. 1 and 2 and would now look at exhibit No. 3. After reviewing exhibit No. 3, the prosecutor
addressed the issue of the name variances within exhibit No. 3. The court then found true beyond a reasonable
doubt the two additional prior convictions reflected in exhibit No. 3. The court granted the prosecution’s motion to
strike the remaining prior.
Orji
admitted having suffered the alleged strike prior and prison priors. The court granted Orji’s Romero motion,
name="_ftnref2" title="">[2] finding the current felony was not violent and was not a crime
against a person. The court sentenced
Orji to the low term of 16 months in state prison on count one, plus an
additional year on one prison prior for a total term of 28 months in
purpose of sentencing.
DISCUSSION
Pursuant to
issues. We will address each in turn.
I. Sufficient
Evidence of Theft
Counsel questioned
whether there was sufficient evidence to convict Orji of theft. “‘The proper test for determining a claim of
insufficiency of evidence in a criminal case is whether, on the entire record,
a rational trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citations.] On appeal, we must view the evidence in the
light most favorable to the People and must presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the
evidence. [Citation.]’†(People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
We must determine whether the evidence supporting the verdict is
reasonable, credible, and of solid value.
We do not reweigh the evidence. (
“Direct proof of . . . theft is not necessary; [it] may be proved by
circumstantial evidence.†(
610.)
Here, there is
substantial circumstantial evidence that Orji took and carried away the missing
laptop. Corea identified Orji as a
person who had been in his store many times prior to June 7. The video from June 7 showed Orji being in
the store for a total of approximately five minutes. He is first observed standing in front of the
glass cabinet where the missing laptop was last seen. The video shows Orji reaching over and around
the glass cabinet on two different occasions.
Between the first and second occasions, he paces in front of the glass
cabinet. He then reaches around the
cabinet, retrieves a laptop, and places it on the cabinet. Shortly thereafter, he is seen vigorously
adjusting his pants and the laptop is not seen again.
This is simply not a
case of first you see the laptop and now you do not. The prosecutor’s argument Orji reached around
and shoved the laptop down his pants is an entirely reasonable explanation of
what is depicted in the video. Orji
appears to be pacing waiting for the other customer to walk away. That Orji is observed leaving the store
promptly after this activity, and that the laptop is discovered missing
immediately after Orji leaves the store, is further
laptop without permission. We conclude
substantial evidence supports the theft conviction.
II. Sufficient
Evidence to Support a Finding of at Least Three Prior Theft Convictions
In addressing a
challenge to the sufficiency of the evidence supporting a conviction, the
reviewing court “must review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial evidence - -
evidence that is reasonable, credible and of solid value - - such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.†(People v. Johnson (1980)
26 Cal.3d 557, 578.) We defer to the trial court’s factual
findings if they are supported by substantial evidence. (People v. Ravaux (2006) 142 Cal.App.4th 914, 917, 919.)
Although
the record demonstrates the court initially did not find there was sufficient
evidence to support three prior convictions, the court candidly admitted it had
only looked at exhibit Nos. 1 and 2 and would then look at exhibit No. 3. Counsel was then given an opportunity to
argue the relative weight to be given the variances within exhibit No. 3. Having reviewed exhibit No. 3 and having
heard counsel’s argument, the court found true beyond a reasonable doubt the
two additional prior convictions reflected in exhibit No. 3. Viewed in its totality, the record before the
trial court provided substantial evidence from which a trier of fact could
reasonably conclude Orji was the same individual who suffered the prior
convictions in exhibit No. 3.
DISPOSITION
The
judgment is affirmed.
O’LEARY,
P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code.
name="_ftn2" title="">[2] A “
strike prior in the interest of justice.
(People v. Superior Court (
