P. v. Crite

Filed 7/14/09 P. v. Crite CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.

Julia L. Bancroft, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On June 12, 2007, the Kern County District Attorney filed an amended felony information in the superior court charging appellant as follows:

Counts 1, 3, and 5--burglary (Pen. Code,^[1] 460, subd. (b)) with four prior prison terms ( 667.5, subd. (b)); and

Counts 2, 4, and 6--petty theft with a prior ( 666) with four prior prison terms ( 667.5, subd. (b)).

On March 14, 2008, after a number of continuances, appellant declined a plea offer of four years imprisonment.

On March 27, 2008, after the court ruled on numerous defense motions in limine, jury trial commenced.

On April 2, 2008, the jury returned verdicts finding appellant not guilty of count 4, and guilty as charged of the remaining five substantive counts. Appellant waived a jury trial of the special allegations and the court found the special allegations relating to the five remaining substantive counts to be true.

On June 9, 2008, appellant filed a statement in mitigation.

On June 13, 2008, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of eight years four months in state prison. The court imposed the upper term of three years on count 1, imposed consecutive terms of eight months (one-third of the middle term) on counts 3 and 5, and imposed and stayed three-year upper terms on counts 2 and 6 ( 654). The court also imposed four consecutive one-year terms on the prior prison term allegations ( 667.5, subd. (b)). The court imposed a $200 restitution fine ( 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole ( 1202.45), and awarded 535 days of custody credits.

On June 16, 2008, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

Facts Underlying Counts 5 and 6

At mid-day on January 3, 2007, Michael Chenze, an assistant manager at the Rite Aid Drug Store on Panama Lane in Bakersfield, saw appellant enter the store. Appellant went directly to the liquor aisle. Chenze watched appellant on a monitor in an adjacent aisle but could not see appellants face or hands. Appellant turned his back to the security camera and appeared to place something down the front of his pants. Chenze went around the corner of the aisle as appellant started walking away. Chenze heard the sound of clinking glass bottles as appellant walked. Chenze followed appellant and said, Excuse me, but appellant continued to walk. Chenze went back to the liquor aisle, examined an alcohol display, and noticed two bottles of Tequila 1800 were missing from a recently-stocked shelf.

Chenze proceeded to the front of the store and heard the electronic tagging system sound an alarm. Chenze was aware that bottles of tequila were tagged for the alarm system and the alarm would register if such merchandise passed through two posts near the door. Chenze saw appellant pass through the doors of the store and did not notice anyone else at those points of ingress/egress. Chenze followed appellant out of the store and called to him. Appellant turned toward Chenze but the latter declined to pursue him and appellant left the scene. Chenze returned to the store, checked the computer system to determine the alcohol inventory, and learned that two bottles of tequila were missing. Chenze then reported an incident of shoplifting to the Bakersfield police.

One month after the incident, law enforcement conducted a follow-up investigation and Chenze identified appellant from a photographic lineup. At trial, Chenze again identified appellant as the man he saw in the Rite Aid on January 3, 2007.

Defense

Chenze testified he never saw appellant put liquor in his pants. He also acknowledged his store was located in a high shoplifting area and that there had been numerous thefts at the store. Chenze further acknowledged he was unsure as to the nature of appellants attire at the time of the incident. Bakersfield Police Officer Lonnie Mills testified he was unaware that Chenze observed the incident on a closed circuit television monitor.

Facts Underlying Counts 3 and 4

At mid-day on January 26, 2007, Longs Drugs employee Jennie Thomas observed a man doing something suspicious in one of the aisles at her store on Coffee Road. Thomas notified store manager Dave Gannon and fellow employee Kay Bailey and the latter called 911. Thomas then walked to one set of exit doors while Gannon walked to the other set of doors. The man approached Thomas and she advised him the doors were broken. The man then walked to the other set of doors. As the man walked past Gannon, Thomas saw the man lift up his shirt and tell Gannon, I didnt take anything or See, I dont have anything. Gannon did not hear the man say anything but did see the man open his jacket to demonstrate he did not have anything on his person.

The man left the store, walked to a car parked outside, and then returned to the store. Upon the mans return, Thomas heard him say, I put it over there, and saw him point to the garden aisle. Gannon heard the man say, I didnt take anything. Gannon replied, I didnt say you did. The man also said, I dont have anything or I dont have the stuff and Gannon responded, Okay. The man left the store again after making the various comments.

Thomas, Gannon, and Bailey then went to the garden aisle and found a ripped box for Crown Royal whisky but no bottle of the alcoholic beverage. Sometime later, store personnel found a bottle of Crown Royal in the garbage bag aisle. One aisle away, the store personnel found an empty package for dryer balls. The dryer balls were difficult to open and had been cut away from the packaging. The dryer balls were never recovered. On February 21, 2007, police officers presented Thomas with a photographic lineup and she identified the photo of appellant as depicting the man who entered the Longs Drugs store.

Bakersfield Police Detective Joel Luera spoke with appellant on March 1, 2007. Appellant told Luera he was at the Longs Drugs store on January 26, 2007, admitted he had taken some liquor, but claimed he put the liquor back. When Luera asked appellant why he put the liquor back, appellant said no comment. At trial, both Thomas and Gannon identified appellant as the man they saw in the Longs Drugs store.

Defense

During cross-examination, Jennie Thomas and Dave Gannon acknowledged they never personally observed the man while he was in the liquor aisle and never saw him select liquor from the shelves on that aisle. Thomas said she was unable to see what the man did with his hands. She also acknowledged her store sustained a few thefts every month.

Jennie Thomas testified she watched through the store mirrors and saw a large, bald-headed African-American male in the liquor aisle. He was dressed in a darker blue sweat suit made of a suede material. Longs Drugs employee Kay Bailey said she used binoculars to survey the entire store through the mirrored windows of the second floor office. However, she could not positively identify the man from a photographic lineup or at trial. Bailey said she never noticed anyone else in the liquor or garden aisles.

On cross-examination, Detective Luera testified he spoke with Longs Drugs employee Thomas about the incident. Thomas said she saw the man take two boxes of liquor from the shelf of the liquor aisle and then open those boxes in another aisle. Thomas also told Luera she saw the man hide the boxes. According to Luera, Thomas never said she saw the man put items back and never told the detective that the man pointed to various aisles to identify where items may have been left. Luera interviewed Gannon and the latter admitted he had not witnessed a theft on the premises. Luera said he was aware of investigations of the January 3, 2007, incident at Rite Aid on Panama Lane and a February 8, 2007, incident at an Albertsons Store on White Lane.

Facts Underlying Counts 1 and 2

During the early evening of February 8, 2007, Mark Wernli was working as a loss prevention specialist at the Albertsons store on White Lane. Wernli and appellant passed one another in the frozen food section of the store. The latter section was located about 20 feet from the liquor section. Later that evening, Wernli trained a new loss prevention specialist in the liquor department. The practice of Albertsons was to keep high-end liquors faced even with the front so that a specialist could tell at a glance whether any sales or disturbances had occurred. Wernli and his trainee noticed a hole of at least two bottles in the Grey Goose vodka section of the liquor department.^[2] Wernli had last checked the liquor section approximately an hour prior to the discovery of the hole. Wernli investigated further by checking with the three cashiers on duty and the point of sale (P.O.S.) system in the store offices. The registers and P.O.S. system did not reveal the sale of any Grey Goose products.

Wernli said the liquor section was located immediately adjacent to the entrances and exits to the store. He reviewed a surveillance videotape recorded during the 5:00 p.m. hour on February 8, 2007, and saw appellant enter the store with a grocery cart and then depart without going to a register or taking a cart outside of the store. Wernli estimated that 40 Albertsons employees were on duty on the day of the incident and that 50 to 75 customers are generally present in the store on a slow day. Wernli also said the store sustained several thefts each week.

Defense

On cross-examination, Officer Luera said the incident at the White Lane Albertsons occurred on February 8, 2007, but was reported on March 1. Luera recalled speaking with Mark Wernli about the incident. However, he did not recall Wernli telling him that Wernli had actually seen the suspect on February 8. Luera also said none of the items taken in the January 3, 2007, incident at Rite Aid and the February 8 incident at Albertsons were recovered. Luera also said he did not seize any of the items involved in the January 26, 2007, incident at Longs Drugs for testing.

DISCUSSION

Appellants appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) By letter dated February 10, 2009, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. On March 11, 2009, this court granted appellants application for an extension of time to and including May 11, 2009, to file an opening brief. Appellant has not done so.

Our independent review discloses no reasonably arguable appellate issues. [A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsels professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

DISPOSITION

The judgment is affirmed.

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^* Before Gomes, Acting P.J., Dawson, J. and Kane, J.

^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Wernli said each missing bottle was a 750 milliliter, a tall long bottle. These two particular ones had security caps on them as well, so there was black caps on the tops of the bottles as well. Wernli also said the vodka in these bottles was a clear liquid and that each bottle sold for between $30 and $40.