Filed 12/12/19 P. v. Cook CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

CYRUS DAVID COOK,

Defendant and Appellant.

E071261

(Super.Ct.No. FVI18000701)

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.

Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, defendant and appellant Cyrus David Cook was found guilty of attempted robbery, a lesser included crime of robbery. (Pen. Code, § 664, 211.) The trial court sentenced him to two years in state prison. Defendant appeals contending the court erred (1) in admitting evidence of his prior theft-related incidents pursuant to Evidence Code section 1101, subdivision (b), (2) in instructing the jurors that they could consider evidence of the prior theft-related incidents in determining whether he had a motive to commit the present offense, and (3) in failing to instruct the jury on the lesser included offense of attempted petty theft. Because we conclude the trial court did not err in admitting the prior theft-related incidents into evidence or instructing the jury, we affirm.

I. PROCEDURAL BACKGROUND AND FACTS

On June 7, 2017, defendant entered a store in Victorville. According to a surveillance video, he removed two to three bottles of vodka from the shelves and attempted to conceal them under his clothing. A loss prevention officer (LPO) employed by the store was observing the store via video surveillance. The LPO recognized defendant as he entered the store from numerous prior encounters he had had with defendant. Defendant was observed concealing bottles of vodka in his clothing. The LPO followed defendant as he passed all the registers, never attempting to pay for the merchandise, and exited the store. The LPO approached defendant outside the store, displayed his badge, and identified himself. In response, defendant physically shoved the LPO against the wall and told him to “fuck off.” During the struggle, two bottles of vodka fell to the ground. Defendant fled on foot, and the LPO contacted the police. The LPO was afraid, uncomfortable, and felt his safety was “compromised.” Police dispatch advised the LPO “they had done an area check and closed the call.” The LPO again contacted police the next day. They responded and took a report. Defendant was subsequently arrested in May 2018, almost one year later.

II. DISCUSSION

A. The Trial Court Properly Admitted Evidence of Defendant’s Prior Theft-related Incidents.

Defendant contends evidence of his prior theft-related incidents involving taking or attempting to take bottles of alcohol from the same store without paying for them was admitted in violation of Evidence Code sections 1101, subdivision (a), and 352. We disagree.

1. Further background facts.

Prior to trial, the People sought to admit evidence of the LPO’s prior interactions with defendant. They cited two incidents in May 2017, in which defendant was stopped for taking or attempting to take bottles of alcohol from the same store without paying for them. Defendant objected to the evidence on the grounds it was irrelevant and inadmissible character evidence.

The trial court asked defense counsel, “Do you think if he had stolen before that that would go to show anything that would be admissible under [Evidence Code section] 1101(b), motive, plan, scheme?” Defense counsel answered, “I don’t think it shows motive [or] scheme.” The court continued, “Whoever this person is apparently he steals booze, and that, as far as I’m concerned, certainly shows common plan and scheme and it’s sufficiently relevant under 1101(b) to be highly prejudicial. I mean, highly—but much more probative than prejudicial.” The court then granted the People’s request “under an [Evidence Code section] 352 analysis,” stating, “[f]oundation is the issue. . . . The fact that [the LPO], if he has video surveillance of [defendant] previously taking booze, then . . . that’s fine. If he has previously seen [defendant] take booze, that’s fine. If . . . somebody told him [defendant] took booze, that’s not fine.” Again, defense counsel objected, stating, “I don’t think it’s sufficiently familiar. The cases on common plan or scheme require actual details be the same, not the same crime.”

At trial, the LPO identified defendant, stating he recognized defendant from prior theft-related incidents. The LPO explained he had personally seen defendant steal from the store between “seven to ten times,” and defendant usually stole bottles of vodka. During cross-examination, the LPO testified defendant’s repeated thefts and attempted thefts posed a problem for business, and defendant continued to return to the store despite the police and loss prevention employees’ repeated requests for him to leave.

2. Standard of review.

Evidence of a defendant’s prior criminal activity may not be introduced to show a defendant has a propensity to commit crimes or bad character. (Evid. Code, § 1101, subd. (a); People v. Lindberg (2008) 45 Cal.4th 1, 22 (Lindberg); People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) However, Evidence Code section 1101, subdivision (b), permits the introduction of evidence of prior criminal acts for various purposes, including the existence of a common plan or scheme. (Lindberg, at p. 22.) Here, the trial court admitted evidence of defendant’s prior thefts (or attempted thefts) to show identification and common plan or scheme. We review the court’s decision for abuse of discretion. (People v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

3. Analysis.

At the outset, we note defendant’s opening brief argues that evidence of his prior thefts or attempted thefts was admitted to show “identity or a common scheme or plan.” According to the trial court’s ruling and the jury instructions, the prior crime evidence was admitted to show identity, intent, motive, and common plan or scheme. The “distinction, between the use of evidence of uncharged acts to establish the existence of a common design or plan as opposed to the use of such evidence to prove intent or identity, is subtle but significant.” (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) The least degree of similarity between the crimes is needed to prove intent. (People v. Kelly (2007) 42 Cal.4th 763, 783; Ewoldt, at p. 402.) “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.”’” (Ewoldt, at p. 402.) The repetition of a similar result tends to establish criminal intent. (Kelly, at p. 783.) Evidence of a common plan to prove a specific intent is admissible even if there is no issue as to defendant’s identity. (People v. Nieves (1969) 2 Cal.App.3d 562, 567.) A greater degree of similarity is required to prove the existence of a common design or plan; there must be “‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations,’” rather than a series of similar, spontaneous acts. (Ewoldt, at p. 402.) The plan “need not be unusual or distinctive.” (Id. at p. 403.)

Here, the trial court properly admitted evidence of defendant’s prior theft-related incidents. Because defendant was charged with robbery, the prosecution was required to show that defendant took “personal property in the possession of another, from his person or immediate presence, and against his will, . . . by means of force or fear,” and with the specific intent to permanently deprive the person of such property. (Pen. Code, § 211, italics added; see People v. Clark (2011) 52 Cal.4th 856, 943.) In other words, the prosecution had to prove the underlying theft of the bottles of alcohol from the store.

In his prior and current theft-related incidents, defendant entered the same store and went to the alcohol section. He grabbed a bottle or bottles of alcohol and placed (or attempted to place) them under his clothing. Defendant committed two of these prior thefts within the month prior to the present offense and, in both cases, he stole two bottles of alcohol (two bottles of scotch on May 21, 2017 and two bottles of vodka on May 19, 2017). In the charged offense, defendant was able to exit the store before being stopped. When confronted, defendant pushed the LPO against the wall, dropped the bottles of alcohol, told the LPO to “fuck off,” and ran away. Defendant’s prior theft-related incidents involved identical items, the same store, and were witnessed by the same employee, so they share sufficient distinctive features to raise an inference of identity and to establish the existence of a common design or plan, not merely a series of spontaneous acts. (Lindberg, supra, 45 Cal.4th at p. 23; see Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2 [“[I]n a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution.”]; People v. Rodriguez (1970) 10 Cal.App.3d 18, 33-34 [prior thefts involving the same general type of item committed in the same general locale were properly admitted to show a common plan or scheme].)

Notwithstanding the above, defendant asserts that since he “did not argue that he was not the person who had attempted to take vodka from the . . . store on the date of the charged offense,” and the “store security surveillance video tape . . . contained images of [him] putting bottles of vodka in a sweater, . . . it was unnecessary to admit evidence of numerous prior similar incidents in order to prove [his] identity or that the current incident was part of a distinctive common scheme or plan.” We disagree. Defendant did not enter into a formal stipulation as to identity. Absent such stipulation, the prosecution was required to prove all elements of the underlying theft beyond a reasonable doubt in order to establish defendant’s guilt of the charged offense. (People v. Whisenhunt (2008) 44 Cal.4th 174, 204 [a defendant’s plea of not guilty puts all elements of the charged offense in issue]; see Estelle v. McGuire (1991) 502 U.S. 62, 69 [“[T]he prosecution’s burden to prove every element of the crime is not relieved by a defendant’s tactical decision not to contest an essential element of the offense.”].)

Moreover, evidence of defendant’s prior theft-related incidents was not made inadmissible by Evidence Code section 352. Pursuant to that section, trial courts have the discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The prejudice contemplated by the statute “is not synonymous with ‘damaging,’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against [the] defendant”’ without regard to its relevance on material issues.” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Defendant’s uncharged offenses were not significantly more inflammatory than the charged crime, the jury was properly instructed on the limited purpose for which it might consider the evidence, and presentation of the evidence did not consume a great deal of time. Considering the relevant factors, the trial court did not exceed the bounds of reason in concluding the probative value of the uncharged crimes evidence outweighed any potential for prejudice.

In any event, even assuming arguendo that the evidence should have been excluded, no reversible error is apparent. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Marks (2003) 31 Cal.4th 197, 226-227 [recognizing that claims of error in excluding evidence under Evid. Code, § 352 are reviewed “under the ‘reasonable probability’ standard of Watson”].) As is apparent from our discussion of the facts ante, the evidence against defendant was overwhelming: Defendant was seen taking bottles of alcohol and leaving the store without paying for them. When confronted by the store’s security personnel, defendant dropped the bottles as he shoved the LPO against a wall and fled. Evidence of defendant’s prior theft-related incidents was but a small part of the People’s case and, arguably, benefited defendant. The evidence supported the defense theory that the LPO was biased against defendant because he was unable to stop defendant from coming into the store. According to defense counsel, because defendant’s prior theft-related incidents did not involve force or fear, the LPO had to exaggerate defendant’s actions in an attempt to have him charged with an offense that would warrant a prison sentence. Also, defense counsel used the fact that none of defendant’s prior theft-related incidents involved force or fear in challenging the claim that the current offense involved force or fear. The jury’s refusal to convict defendant of a completed robbery suggests the defense theory successfully created doubt as to the use of force or fear element of the charged offense.

For these reasons, we find no probability that defendant would have received a more favorable result had his prior theft-related evidence been excluded.

B. The Trial Court Properly Instructed the Jury with CALCRIM No. 375.

Defendant contends the trial court erred in instructing the jury to consider his prior theft-related incidents when deciding whether he had a motive to commit the present offense because the instruction “essentially directed the jury to infer [defendant’s] guilt based on evidence of addiction and poverty.” We find no error.

1. Standard of review.

In criminal cases “‘[a] trial court has a duty to instruct the jury “sua sponte on general principles which are closely and openly connected with the facts before the court.”’” (People v. Gutierrez (2009) 45 Cal.4th 789, 824; see People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)

2. Analysis.

The trial court instructed the jury with CALCRIM No. 375, which allowed the jury to consider evidence that defendant committed prior uncharged theft-related offenses for the limited purpose of deciding whether or not he “had a motive to commit the offense alleged in this case.” Defendant contends this instruction “allowed the jury to find that [he] had a motive to attempt to rob the [store] because he was an alcoholic who did not have money to buy alcohol on his own.” He criticizes the instruction for “effectively allow[ing] the jury to use [his] alcoholism . . . as a proxy for his poverty, which cannot be presented as a basis for a finding of motive to steal.”

We agree that “a defendant’s poverty generally may not be admitted to prove a motive to commit a robbery or theft; reliance on such evidence is deemed unfair to the defendant, and its probative value is outweighed by the risk of prejudice.” (People v. Koontz (2002) 27 Cal.4th 1041, 1076; see, e.g., People v. Clark (2011) 52 Cal.4th 856, 928-930.) However, use of a defendant’s substance addiction to prove motive to steal is permitted when the direct object of the charged offense is to obtain the substance. (See, e.g., People v. O’Brand (1949) 92 Cal.App.2d 752, 754 [burglary of drugstore to steal narcotics]; but see People v. Cardenas (1982) 31 Cal.3d 897, 906 [testimony by witnesses that defendant was a drug addict was inadmissible to prove financial motive to rob store].) Here, defendant’s prior acts involved the theft of bottles of alcohol from the same store. Assuming any evidence of his alleged addiction had been presented, it was admissible to show his motive to commit the charged offense, stealing alcohol.

Moreover, CALCRIM No. 375 did not advise the jury that it could convict defendant based on a finding of poverty or addiction. Rather, CALCRIM No. 200 directed the jury not to rest its verdict on bias against defendant, including bias based on his socioeconomic status. Also, no party or witness mentioned defendant’s addiction or poverty, or encouraged the jury to return a guilty verdict based on these characteristics. In fact, over defense counsel’s objection, the trial court expressly prohibited any discussion of defendant’s indigence or homelessness. For the foregoing reasons, we conclude the trial court did not err by using CALCRIM No. 375 to instruct the jury that it may consider defendant’s prior theft-related incidents in deciding whether he had a motive to commit the charged offense.

C. The Trial Court Properly Refused to Instruct on Attempted Petty Theft.

Defendant contends the trial court prejudicially erred when it failed to instruct the jury on the lesser included offense of attempted petty theft. He argues such instruction was necessary because the jury could have concluded he had not completed a theft offense “by both taking and carrying away the bottles of alcohol.” We disagree.

The trial court is required to give an instruction on a lesser included offense “whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” (Breverman, supra, 19 Cal.4th at p. 161.) Evidence is substantial enough to merit consideration if a reasonable jury could conclude that the lesser included offense, but not the greater, was committed. (Id. at p. 162.) A trial court is not required to instruct the jury on a lesser included offense if there is only weak evidence to support the lesser included offense. (People v. Hagen (1998) 19 Cal.4th 652, 672.)

Here, the trial court instructed the jury on the charged offense of robbery and the lesser included offenses of attempted robbery and petty theft. Neither party requested an instruction on attempted petty theft because they agreed that, prior to defendant using physical force against the LPO outside the store, defendant took bottles of alcohol off the shelves, concealed them in his clothing, and left the store without paying for them. The trial court correctly concluded there was no substantial evidence from which the jury could infer that defendant committed only an attempted petty theft.

We reject defendant’s assertion “there was substantial evidence to support a finding that [he] had not completed the element of asportation and therefore committed only an attempted theft.” According to the uncontradicted testimony of the LPO and the video evidence, the stolen bottles of alcohol were transported from inside the store to outside the store before defendant could be stopped. Simply put, there was more than slight movement of the bottles of alcohol to constitute carrying away and satisfy the asportation element of petty theft. (See People v. Lopez (2018) 26 Cal.App.5th 382, 386, 390-392 [defendant properly charged with petty theft with a prior where evidence showed he took items and exited a store without paying before being stopped by an asset protection officer, who recovered the items].) No factual basis existed for the jury to conclude defendant did not transport the stolen bottles of alcohol and, accordingly, the trial court was not required to give an attempted petty theft instruction. (See People v. Dorsey (1995) 34 Cal.App.4th 694, 704 [holding the trial court did not err in failing to instruct on theft related offenses rather than robbery because the evidence could only support a finding of robbery]; cf. People v. Brenner (1992) 5 Cal.App.4th 335, 341 [the trial court did not err in failing to instruct on attempt to dissuade a victim from reporting a crime because evidence would not justify a conviction on the lesser included offense].)

Even assuming the trial court erred, the failure to give a lesser included instruction was not prejudicial. A trial court’s failure to instruct “on a lesser included offense in a noncapital case is at most, an error of California law alone, and is thus subject only to state standards of reversibility.” (Breverman, supra, 19 Cal.4th at p. 165.) Therefore, reversal is not warranted “unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.” (Ibid.) Here, the alleged error could not have contributed to the outcome because the jury was instructed that it had to find the element of asportation. If the jury had not found the requisite asportation, it could not have convicted defendant of attempted robbery. Thus, the jury necessarily determined the factual question posed by the omitted instruction.

 

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.