P. v. Arana
Filed 5/28/13 P. v. Arana CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CLAUDIA MUNOZ ARANA,
Defendant and Appellant.
D062418
(Super. Ct.
No. SCD237855)
APPEAL from
a judgment of the Superior Court
of
County, Peter C. Deddeh, Judge. Affirmed.
CSLlegal,
Jeremy M. Evans for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Steve Oetting and Michael Pulos,
Deputy Attorneys General, for Plaintiff and Respondent.
Claudia
Munoz Arana appeals from a judgment convicting her of burglary arising from her
participation in a theft of clothing from a store. She argues (1) the trial court erred in
admitting evidence of her prior petty
theft offense to show intent and common plan; (2) there is insufficient
evidence to show she entered the store with intent to steal; and (3) the court
erred in dismissing a juror as unfit to serve.
We find no error and affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
The charged
offense was committed by defendant and an accomplice (Patricia Gomez) on December 1, 2011, at a shopping
mall. Loss prevention officer Jesus
Alvarez and police officer Allyson Boyd were working at the mall in an
undercover capacity to identify and apprehend shoplifters. While the two officers were in Express
clothing store, Alvarez became suspicious about defendant and Gomez. Defendant was pacing back and forth in a
nervous fashion with men's jackets draped over her arm. Gomez was nearby at a clothing rack.
nearly empty shopping bag from a different store in the mall and a toy
box. Shoplifters frequently bring a bag
with them to use to conceal stolen merchandise.
Alvarez
alerted Officer Boyd about the suspicious activity. Alvarez went outside the store to monitor the
situation by looking through the front store window, while Officer Boyd
conducted surveillance from inside the store.
Officer Boyd noticed that defendant was behaving suspiciously rather
than like a normal shopper; she would pick up men's clothing without examining
it, look around, put the clothing down, and walk off. Both defendant and Gomez were looking around
nervously and "eyeball[ing]" the employees. The two women "[met] up with each other
at least once or twice" and it appeared that they knew each other and were
together. After a couple of minutes,
Officer Boyd was concerned that the women might notice she was watching them,
so she went to the store's jewelry section where she could no longer see the
women and left the surveillance to Alvarez.
As Alvarez
was leaving the store, he saw defendant and Gomez huddled together near the
clothing rack where Gomez had been standing.
Once he was outside the store, he saw defendant and Gomez stuffing the
jackets into the bag that was on the floor.
Gomez then grabbed the toy box and placed it into the top of the
bag. Gomez came to the front entrance of
the store, looked both ways as if checking for mall security, and went back
into the store. While Gomez was doing
this, defendant remained in the store near the bag. As soon as Gomez reentered the store, both
women left the store, walking at a fast pace and without paying for the
merchandise. Gomez was carrying the bag.
Alvarez ran
and told Officer Boyd about the theft, and the two officers jogged after the
women who were quickly walking away through the mall. Officer Boyd yelled, "San
Diego police, stop" and displayed her badge. After both women turned around and looked at
Officer Boyd, Gomez (who was still carrying the shopping bag) stopped
walking. Defendant "looked alarmed"
and resumed quickly walking away.
Officer Boyd sprinted after defendant, cut in front of her, and ordered
her to stop.
Officer
Boyd told the women that they were seen stealing from the Express store; asked
to search the bag; and found three men's jackets in the bag with a total value
of $737.01. The security sensors had
been removed from the jackets, and during a search of the store, the police
found three sensors hidden in a pocket in a pair of pants. When the police searched defendant and her
purse, there was nothing inside the purse and she had no car keys, cash, credit
or debit cards, or checks in her possession.
Officer Boyd testified that experienced shoplifters tend not to carry
their car keys or identification with them in an attempt to avoid a vehicle
search and detection of their identity.
To show
intent to steal and common plan, the prosecution introduced evidence of a prior
petty theft offense committed by defendant and Gomez at another shopping mall
in February 2011, about 10 months before the current offense. When defendant and Gomez walked into the
mall, loss prevention officer Terrence Wilkerson thought they were potential
shoplifters because they were walking at a high rate of speed; both were
carrying purses that appeared empty; and Gomez was carrying a shopping bag from
a retail store that appeared empty.
After the women entered a clothing store, defendant acted as a lookout
while Gomez filled the shopping bag with clothing. The women then left the store at a fast pace
without paying for the merchandise.
Wilkerson summoned the police, and defendant and Gomez were
arrested. While defendant was detained,
she tried to hide a tool (used to remove security sensors from merchandise) in
a planter next to the bench where she was seated.
The jury
found defendant guilty of burglary. The trial court denied probation and
sentenced her to 180 days in custody.
DISCUSSION
I. Admission
of Prior Petty Theft Evidence
Defendant
argues the trial court erred in admitting the evidence of her prior petty theft
offense. The court ruled the evidence
was highly probative to show intent and common plan and it was not unduly
prejudicial.
Evidence of
the defendant's other crimes that are not charged in the current case is
generally inadmissible for purposes of showing the defendant's bad character or
propensity to commit crimes. (
369.) The rationale for excluding other
crimes evidence is that the jury might convict because of the defendant's criminal
propensity or bad character regardless of whether guilt is proven beyond a
reasonable doubt. (See People v.
Alcala (1984) 36 Cal.3d 604, 631.) However, other crimes evidence may be
admitted for the limited purpose of proving material facts apart from criminal
disposition, such as intent or common plan.
(People v. Whisenhunt (2008)
44 Cal.4th 174, 203; People v.
Demetrulias (2006) 39 Cal.4th 1, 14.)
To be
relevant to intent or common plan, the conduct during the uncharged and charged
acts must be sufficiently similar to support a rational inference that the
defendant probably harbored the same intent or plan in each instance. (People
v. Kipp, supra, 18 Cal.4th at p.
369; People v. Cole (2004) 33 Cal.4th
1158, 1194.) Because of the prejudice
inherent in other crimes evidence, the evidence must have substantial probative
value, and the trial court must evaluate under Evidence Code section 352
whether the probative value is outweighed by the probability of undue
prejudice, confusing the issues, or misleading the jury. (Kipp, supra, at p. 371.) We
review the trial court's rulings for abuse of discretion. (Id. at pp. 369, 371.)
Defendant
argues the court should have excluded the prior petty theft evidence under
Evidence Code section 352 because the petty theft conduct was so similar to the
charged conduct (including that the conduct was close in time and involved the
same accomplice) that the jury would have been unable to separate the prior
offense from the current offense. The
contention is unavailing.
To
establish the charged burglary offense, the prosecution had to prove that
defendant entered the store with the intent to commit theft or any felony. (Pen. Code,
§ 459.) The strong similarity
between the current and prior offenses increased the relevancy of the prior
offense to show that in the current offense defendant went into the store with
the intent to participate in the theft activity with Gomez. Evidence showing that defendant and Gomez had
previously shoplifted from a store using a particular modus operandi supported
that defendant had this same intent and was carrying out the same scheme during
the charged incident involving a similar shoplifting scenario.
Defendant
has not shown that the jury would be unable to separate the prior offense from
the current offense. We assume that
jurors are intelligent persons who understand and follow the court's
instructions. (People v. Gray (2005) 37 Cal.4th 168, 217; People v. Ramos (2008) 163
Cal.App.4th 1082, 1088.) The jurors were
instructed that if they found the prior petty theft offense true by a
consider the evidence to decide if in the current case defendant acted with the
intent to commit theft or had a plan or scheme to commit the alleged
offense. The jurors were also instructed
about the limitations on the use of the evidence; i.e., they could not consider
the evidence for any other purpose; the evidence was only one factor to
consider along with all the other evidence; the evidence was not by itself
sufficient to prove guilt; and the prosecution must prove the charge beyond a
reasonable doubt. (See CALCRIM No.
375.) Based on these instructions,
reasonable jurors would understand that the fact that defendant engaged in a
prior shoplifting incident with Gomez could not prove her guilt of the charged
offense unless the jurors were convinced beyond a reasonable doubt that she
committed the current offense based on all the evidence. Thus, the jurors knew that although they
could consider the prior offense when evaluating defendant's intent and conduct
during the charged incident, they had to independently evaluate the evidence
concerning the charged offense and could not assume defendant was guilty based
only on her commission of the prior crime.
Defendant
also argues that the commission of one prior offense is not sufficient to show
a common plan or scheme. To be relevant
on the issue of common plan, the charged and uncharged offenses must share
common features indicating the existence of a plan rather than a series of
spontaneous acts. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) There is no requirement that there be a
certain number of prior offenses to show the existence of a plan. The trial court could reasonably find that a
plan to engage in shoplifting can emerge from one prior incident of shoplifting
followed by a current charge of shoplifting.
The trial
court did not abuse its discretion in admitting the prior offense evidence.
II. Sufficient
Evidence of Burglarious Intent
Defendant asserts there was
insufficient evidence to support that she entered the store with the intent to
steal.
When reviewing a challenge to the
sufficiency of the evidence, we examine the entire record in the light most
favorable to the judgment to determine whether there is substantial evidence
from which a reasonable jury could find the defendant guilty beyond a
reasonable doubt. (People v. Nelson (2011) 51 Cal.4th 198, 210.) We presume in support of the judgment the
existence of every fact the jury could reasonably deduce from the
evidence. (Ibid.) If the circumstances
reasonably justify the jury's findings, reversal is not warranted merely
because the circumstances might also reasonably be reconciled with a contrary
finding. (Ibid.) It is the exclusive
province of the jury to determine credibility and to resolve evidentiary
conflicts and inconsistencies in testimony.
(People v. Young (2005) 34
Cal.4th 1149, 1181.) Because intent can
seldom be proved by direct evidence, it may be inferred from the
circumstances. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.)
Here, the jury was entitled to
credit loss prevention officer Alvarez's testimony that he saw defendant and
Gomez stuffing the stolen jackets inside the bag. From this evidence, the jury could reasonably
infer that when defendant went into the store, she had the intent and plan to
participate in the theft of clothing with Gomez. This inference is buttressed by Alvarez's and
Officer Boyd's assessments that defendant was behaving suspiciously when she
was initially observed inside the store, including pacing back and forth with
jackets over her arm, looking nervously around, and handling merchandise in a
manner unlike a normal shopper. Further,
she was carrying a purse with nothing inside, which supported an inference that
she was not at the mall for legitimate shopping purposes. Additionally, she had previously committed
shoplifting at a mall with Gomez, which supported that she had the intent and
plan to engage in the same endeavor during the charged incident. Based on Alvarez's eyewitness testimony, the
circumstances surrounding the current incident, and the prior shoplifting
incident, the record supports a finding that defendant entered the store with
the intent to steal.
III. Dismissal
of Juror
Defendant
argues the trial court abused its discretion when it dismissed Juror No. 1 from
the jury during trial and replaced him with an alternate juror.
On the
second day of trial after two witnesses had testified, the court called a short
recess because Juror No. 1 had asked to use the restroom. During the recess outside the presence of the
jury, the court told the parties that it was concerned about Juror No. 1's
behavior. The court stated that when
Juror No. 1 first arrived and sat down that morning, the court noticed he was
"behaving bizarrely," and his inappropriate behavior continued during
the witness testimony. The court explained:
" . . . I
noticed that he was kind of behaving bizarrely, sort of nodding off
and . . . his head would snap up, and his eyes kept
closing, and then he'd open them. . . . And then as the testimony of Mr. Alvarez was
unfolding, he was making kind of bizarre hand gestures and pointing at the
screen. And then he asked a question,
which was kind of unusual.[
"But his
demeanor is completely different than yesterday. Yesterday he was not behaving this way at
all.
"And then he
made some comments . . . sort of like popping off,
basically, when . . . a couple of witnesses were
testifying, inappropriately laughing and guffawing, and then he apparently
said . . . bullshit [or shit] at some
point. . . .
[¶] . . . [¶]
". . . I
heard something that was an outburst, and I didn't hear exactly what it
was. . . . And he's
making other jurors uncomfortable because he's kind of moving around, too, and
fidgety.
"And so when I
first saw him, I thought oh, he's under the influence of something. And it's very apparent to me that he is under
the influence of something, and not just a person that's kind of behaving
bizarrely or—and then apparently one of the other
jurors . . . came up to my bailiff and said that he had
been drinking. And maybe she knew that
because he talked to her, said something to her."
The court
stated that it did not think Juror No. 1 was "fit to serve at this
time"; the other juror had provided "some verification" that he
was "probably under the influence of something"; and his behavior was
distracting and making other jurors uncomfortable. The court proposed to dismiss Juror No. 1,
and to accomplish this by having the bailiff tell the juror that he did not
need to return to the courtroom. Defense
counsel objected, stating that there was "no foundation" for the
removal without first at least conducting an inquiry with the juror and that
the behavior could be rectified with a "strict admonishment." The court disagreed, stating it had already
admonished the juror "once when he popped off gratuitously during the
testimony, and then he did it again."
The court found Juror No. 1 had "already demonstrated that he's not
fit to serve," and declined to question him on the matter.
Consistent
with the court's observations, the reporter's transcript reflects that during
the witness testimony Juror No. 1 frequently laughed and made comments.
the third time, the court admonished him, stating, "We don't need any
comment from you, okay?" Juror No.
1 responded, "Oh, sorry."
However, Juror No. 1 thereafter interjected two more comments, after
which the court called the recess, held the sidebar conference, and decided to
dismiss him from the jury.
A trial
court has discretion to dismiss a juror if upon "good cause shown to the
court [the juror] is found to be unable to perform his or her
duty . . . ."
(§ 1089; People v. Boyette
(2002) 29 Cal.4th 381, 462.) "While
a trial court has broad discretion to remove a juror for cause, it should
exercise that discretion with great care."
(People v. Barnwell (2007) 41
Cal.4th 1038, 1052, fn. omitted.) The
juror's inability to perform as a juror must appear in the record as a
demonstrable reality. (
On appeal, our review under the " 'demonstrable reality test'
" is more stringent than under the "typical abuse of discretion
standard." (People v. Fuiava (2012) 53 Cal.4th 622, 711; People v. Barnwell, supra, 41 Cal.4th at p. 1052.) The demonstrable reality test requires a
showing that the trial court actually relied on evidence that supports
dismissal, and on appeal "the reviewing court must be confident that the
trial court's conclusion is manifestly supported by evidence on which the court
actually relied." (
pp. 1052-1053.)
However,
the "manner in which the trial
court conducted its inquiry [on a juror's fitness to serve] is subject to
review for abuse of discretion under the typical standard." (People
v. Fuiava, supra, 53 Cal.4th at p. 712; People
v. Clark (2011) 52 Cal.4th 856, 971 [court has broad discretion in deciding
whether and how to conduct an inquiry].)
For example, a trial court has the discretion to decide that " 'a
juror's disqualification is so clear that further [inquiry] is
pointless . . . .' "
(People v. Fuiava, supra, 53
Cal.4th at p. 714.)
Defendant
asserts the court improperly relied on hearsay from another juror and the
court's unfounded beliefs that Juror No. 1 was intoxicated, and it should have
questioned Juror No. 1 to determine whether he was intoxicated. Also, defendant contends the court should
have admonished Juror No. 1, not dismissed him.
We are not persuaded.
The court
personally observed Juror No. 1's bizarre behavior and found it was "very
apparent" that he was under the influence, which observation was
corroborated by another juror's assessment that was communicated to the
bailiff. On appeal, "we afford
deference to the trial court's factual determinations, based, as they are, on
firsthand observations unavailable to us on appeal." (People
v. Barnwell, supra, 41 Cal.4th at p. 1053.)
The court admonished the juror to stop making comments during witness
testimony, and yet the juror was apparently unable to control himself because
he continued to make comments. The trial
court reasonably concluded that a juror who appears intoxicated and who cannot
refrain from making comments and laughing during witness testimony is unfit to
serve on the jury. The juror's apparent
intoxication and repeated inappropriate comments and noises support that the juror's
ability to properly pay attention to the evidence and deliberate with the other
jurors could be impeded, and his conduct could also distract and impede the
other jurors in the performance of their duties.
Further,
given the court's personal observation of the juror's inappropriate behavior
and demeanor, the court reasonably found there was no need to further question
the juror. The court could reasonably
conclude that the juror would not be able to provide any explanation that would
show he was fit to serve because the juror had already repeatedly demonstrated
his unfitness during the trial proceedings that morning. The court also reasonably found that an
additional admonishment would serve no purpose because the earlier admonishment
had not stopped the inappropriate behavior.
The record
manifestly supports the trial court's decision to dismiss Juror No. 1, and the
court did not abuse its discretion when it declined to conduct a further
inquiry.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
name="_ftn1" title="">[1] On cross-examination, Alvarez acknowledged that in his
written report prepared the day of the incident, he stated that Gomez was the
one who had the jackets over her arm.
Alvarez explained that he identified the women as "S-1" and
"S-2" in his report and he used the wrong identifier when describing
who was holding the jackets.
name="_ftn2" title="">[2] Subsequent unspecified statutory references are to the Penal
Code.
