Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Napa County Super. Ct. No. CR141342
Haerle, J.
I. INTRODUCTION
After a jury trial, appellant was convicted of one count of grand theft, a charge involving aiding and abetting shoplifting from an Office Depot store in Napa. He appeals, claiming (1) a lack of substantial evidence to support his conviction, (2) ineffective assistance of counsel because his trial counsel failed to object to alleged prosecutorial misconduct during closing argument, and (3) error by the trial court in instructing the jury regarding appellant’s alleged flight pursuant to CALCRIM No. 372. We reject all of these contentions and affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 28, 2008, the Napa County District Attorney filed an information charging appellant with two counts: grand theft (Pen. Code, § 487, subd. (a)) in the first count and commercial burglary (Pen. Code, § 459) in the second.
Jury trial began on January 12, 2009. The following is a summary of the testimony presented in the course of the three-day trial:
In the afternoon of July 13, 2008, Office Depot lead cashier Kathyrn Spencer was taking a lunch break outside the store when she saw a white Jeep Cherokee pull into the parking lot. Two men, one of them appellant, and two women emerged from the vehicle “walking individually towards the front of the store” in “single file.” Spencer became suspicious and determined to inform the store manager of this circumstance. Becoming suspicious, Spencer went directly to the manager’s office at the rear of the store.
As she was speaking to the manager about what she had observed in the parking lot, Spencer heard a “walkie-talkie” broadcast that someone was leaving the store with a TV set. As she and the manager hurried to the front of the store, she saw another Office Depot employee, David Serbellon, running out of the store, apparently chasing someone. Spencer also saw appellant on a motorized cart at the front of the store and “yelling” in a very loud voice. Spencer and the store manager passed near appellant on his cart and went into the parking lot, where they saw the white Jeep Cherokee drive away, while Serbellon pushed a cart containing a TV set back into the store.
Spencer then saw appellant leave the store alone and walk to a Target store next door. She had not seen him purchase anything at the Office Depot store.
Later that afternoon, after the police arrived, Spencer identified a woman at a nearby Taco Bell as one of appellant’s companions when the four people had originally arrived in the parking lot.
Irene DeYoung, another Office Depot cashier, saw appellant enter the store and, almost immediately, get on the motorized cart parked at the front of the store. He promptly started driving that cart around about 10 feet from the several cash registers, demanding to be assisted “in a very loud” voice. Appellant’s voice “echo[ed] in the building,” according to DeYoung.
DeYoung responded to appellant’s demands by telling him that she would call for someone to assist him; appellant responded by again requesting help. DeYoung called another department to get help for appellant and then returned to help about six customers who were already in line to check-out with their purchases. DeYoung did not recall seeing appellant make any purchases from either her or the one other cashier then on duty, nor did she see him having any contact with any other store employee before he left.
While this was going on with appellant, DeYoung also saw another man pushing a cart containing a flat-screen TV out of the store “moving pretty fast.” Two women were “close on the other side of him as he was going out and pushing it out the door.” DeYoung saw neither of the females making a purchase.
While the other man left the store with the TV set on the cart, appellant briefly continued to “drive around” and demand help from those in the front of the store. He then parked the cart and left the store a few minutes later.
Michael Morgan was a customer in the store, along with his wife and two children, when he saw a man wheeling a “big screen” TV toward the front of the store. At the same time, Morgan saw appellant in a motorized shopping cart “wheeling around” and then wheeling the cart slow towards the store’s exit. He and his family had to walk around appellant to get out of the store. As Morgan left the store, he observed the man he had seen wheeling the TV set out walking “pretty fast” out into the parking lot, albeit with store employees following him. A female was with him and the two got into a car and drove off. However, the man left the TV set in the cart in the parking lot. The second female who had been with the man with the cart a few minutes earlier left the store and went into a nearby Target store. Morgan saw her exit that store a few minutes later and he followed her into a Taco Bell restaurant; he later identified her there to the police.
Office Depot employee Serbellon, mentioned earlier, testified that, at about 2:30 p.m. on July 13, he heard over his ear piece that a man was apparently stealing a flat-screen TV. Serbellon went to the front of the store and saw a man leaving the store with a TV on a shopping cart. He followed the man out of the store and was joined by another employee who told him not to confront the apparent thief. The man walked to a white Jeep Cherokee and tried to put the TV into the vehicle; he could not do so, and so pushed the cart containing it a few spaces away, got into the vehicle, and drove off.
Responding to a call, Napa Police Officer Katherine Knutsen pulled up in front of the Target store in the shopping center and located appellant outside it. To Officer Knutsen (and several other witnesses), appellant did not appear to have any difficulty in walking or other injury. Officer Knutsen told appellant that she was investigating a theft from Office Depot; he responded, rather loudly, that he was “being harassed”; he was agitated and frustrated that she detained him and said that she had “no probable cause” to do so. He said that he had purchased a telephone charger from Office Depot, and showed her both that charger and a receipt indicating its purchase at 3:13 p.m. that day. He told her he had been on a motorized scooter inside the Office Depot and there was, thus, no way he could have pushed a big-screen TV out of the store. He also told her he had been alone in that store.
Another Napa Police Officer, Eric Koford, then arrived in the shopping center and asked appellant some questions, but appellant did not answer them, instead insisting repeatedly that the officers had “no probable cause” to detain him. Appellant was eventually placed into a police car; he asked what item had supposedly been taken from the store, and was told by Officer Knutsen that it was a flat screen TV. Appellant responded that there was no way he could have taken such an item, as he had been on a motorized scooter. Officer Knutsen suggested that one of appellant’s friends had attempted to take the TV, but appellant asserted that he had not been with anyone.
Earlier testimony given by Carmen Robinson at an Evidence Code section 402 hearing (section 402 hearing) was then read into evidence, after Robinson refused to testify in front of the jury on Fifth Amendment grounds. She testified that her sister (unnamed) gave her a ride to Office Depot on the day in question so that she, Robinson, could purchase copy paper. Two males were also in the vehicle, a white Jeep Cherokee; one was Leonard Miles and the other appellant, who Robinson knew only as “Double E,” and he was asleep in the back seat. When they got to the shopping center, Robinson went into a Home Depot store to use the restroom and then into the Office Depot to buy the copy paper. Her sister was with her at the cash register, but did not make a purchase. Robinson saw Miles pushing a basket out of the Office Depot store “pretty quick.”
Robinson left the store and went into the Target store alone; she believed her sister stayed in Office Depot. When Robinson left the Target store, her sister’s vehicle was gone, so Robinson went to Taco Bell. She did not see appellant either in the Office Depot store, or at any other time or place that day.
However, Napa Police Officer Rosa Calderon testified that Robinson gave police a statement on July 13 that she had seen appellant riding a motorized shopping cart in Office Depot that day, but did not see him make a purchase or speak to anyone inside the store.
No witnesses were called or other evidence adduced by the defense.
On January 15, 2009, after a few hours of deliberation, the jury returned its verdict, finding appellant guilty on the first count, but not guilty on the second. At a sentencing hearing held on February 27, 2009, the court suspended imposition of a sentence on appellant and placed him on probation for a term of three (3) years.
Appellant filed a timely notice of appeal on March 2, 2009.
III. DISCUSSION
A. Substantial evidence supports appellant’s conviction.
As noted above, appellant’s first argument is that there was not substantial evidence that he aided and abetted Miles’ attempted theft of the television set from the Office Depot store. This argument is based on the premise that, when all was said and done, several store employees (e.g., Spencer and Serbellon) were aware of Miles’ attempted theft and that, in fact, nothing appellant did or tried to do in fact aided and abetted the Miles’s unsuccessful attempt to steal the television. That this is the core premise of appellant’s argument is shown by these two sentences from his opening brief: “While it is true that ‘diverting suspicion’ can constitute aiding and abetting [citation], there simply was no evidence that appellant actually created a disturbance or distracted any employees from seeing Miles take the television. None of the Office Depot employees testified that they believed appellant’s action distracted them from seeing Miles take the television.”
Essentially what this argument amounts to is that appellant (or anyone else) cannot be convicted of grand theft on an aiding and abetting theory unless the aiding and abetting efforts are successful. We reject this argument. As our Supreme Court has defined the issue: “A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime. The... question is not whether the aider and abettor actually foresaw the... crime, but whether, judged objectively, it was reasonably foreseeable.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1133 (Mendoza); see also People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1177.)
One of our sister courts has defined the necessary “act” similarly. In People v. Swanson-Bidrabent (2003) 114 Cal.App.4th 733, 743-744 (Swanson-Bidrabent), a panel of our colleagues in the Sixth District held: “The ‘act’ required for aiding and abetting liability need not be a substantial factor in the offense. ‘ “Liability attaches to anyone ‘concerned,’ however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal.” [Citations.]’ ‘It has been held, therefore, that one who is present for the purpose of diverting suspicion, or to serve as a lookout, or to give warning of anyone seeking to interfere, or to take charge of an automobile and to keep the engine running, or to drive the “getaway” car and to give direct aid to others in making their escape from the scene of the crime, is a principal in the crime committed. [Citations.]’ [Citation.]” (See also regarding efforts to “distract” as constituting aiding and abetting, People v. Ngaue (1992) 8 Cal.App.4th 896, 906-907.)
As another appellate court has written: “ ‘The logical basis for conviction as an aider and abettor is that with knowledge of the unlawfulness of the act, one renders some independent contribution to the commission of the crime or otherwise makes it more probable that the crime will be successfully completed than would be the case absent such participation.’ ” (People v. Brady (1987) 190 Cal.App.3d 124, 132, emphasis added; disapproved on other grounds in People v. Montoya (1994) 7 Cal.4th 1027, 1043.)
No authority cited by appellant contradicts any of these principles or, for that matter, states or even hints that, to be found guilty of aiding and abetting, a defendant’s efforts to do so must have been successful. Far from it: the test is whether the commission or attempted commission of a crime was “reasonably foreseeable” (Mendoza, supra, 18 Cal.4th at p. 1133) or, in a case such as this, whether appellant’s presence in the Office Depot store was for “ ‘the purpose of diverting suspicion.’ ” (Swanson-Bidrabent, supra, 114 Cal.App.4th at pp. 743-744.)
Appellant cites People v. Perez (2005) 35 Cal.4th 1219, 1225, in support of his theory that liability for aiding and abetting a crime requires “conduct by the aider and abettor that in fact assists the achievement of the crime.” (Ibid.) But nothing in that case is contrary to the law set forth above, as the essential point in Perez was that there was no proof of a crime having been committed by an alleged perpetrator. (Id. at pp. 1225-1227.) Such is not the case here, as Miles was clearly attempting grand theft.
There was clearly substantial evidence that such was the case here. First of all, witness Spencer specifically cut short her lunch break to inform her manager that she had seen four people, one of whom was appellant, exit the same car, but then not enter the store as a group but, rather, “walking individually” and in “single file.” Second, multiple witnesses testified that, as soon as he entered the store, appellant got on the motorized vehicle and started cruising around the front of the store, near the two cashiers then on duty and, in so doing, making a discernable amount of verbal commotion about needing assistance. Third, and contrary to appellant’s contention, at least one Office Depot employee was, in fact, distracted: one of those two cashiers, DeYoung, testified that she not only heard appellant’s loud demands for store employee assistance, but responded to them. Specifically, she testified that “I tried to help him out the best I could.” Fourth, and perhaps most importantly, after Miles and his two female companions left the store, appellant did the same “a few minutes later” and went into a neighboring store. Fifth, according to DeYoung, in so doing he did not exhibit any injury. Sixth and finally, appellant then lied to Officer Knutsen about being in the store alone; this fact was made clear by the admission of Robinson, one of the female companions who arrived in the same vehicle as appellant and Miles, to Officer Calderon and in Robinson’s testimony at the section 402 hearing.
There is, therefore, more than substantial evidence supporting the charge of aiding and abetting a grand theft.
B. There was no prosecutorial misconduct.
Appellant’s second argument is an offshoot of his first. He argues that his trial counsel provided ineffective assistance by not objecting to the prosecutor’s “blatant misstatement of law [in arguing to the jury] that appellant could be liable as an aider and abettor even if his actions did not ‘make a difference.’ ” This argument, appellant continues, constituted “ ‘ “use of deceptive or reprehensible methods to attempt to persuade... the jury” ’ ” and “ ‘ “infected the trial with such unfairness as to make the conviction a denial of due process.” ’ ” (Citing People v. Young (2005) 34 Cal.4th 1149, 1184.)
To say this is a bit harsh is an understatement. Even though trial counsel did not object to this argument of the prosecution, there was clearly no ineffective assistance of counsel. In the first place, as we have just finished noting, liability as an aider and abettor doesnot depend on the success of the person’s efforts, only that such efforts were in fact made. Per the foregoing section of our opinion, there was clearly substantial evidence of that here.
Second, the context in which the prosecutor used the “make a difference” phrase clearly indicates that he meant “be successful.” The following is a fuller portion of the prosecutor’s argument: “In order to aid and abet a crime you don’t actually have to make a difference. In order to aid and abet a crime according to the law under your jury instruction 1702 for burglary the intent of an aider and abettor to be guilty of burglary as an aider and abettor the defendant must have known of the perpetrator’s unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate or encourage the commission of the burglary before the perpetrator finally left the structure. [¶] What your act... doesn’t have to ensure [is] that the crime actually is committed. And in this instance they didn’t get away with the TV. The actions of Mr. Blake promoting and encouraging that theft didn’t actually result in the accomplishment of the crime. The law doesn’t require that your actions as an aider and abettor make a difference. All the law is assessing is whether or not you did act as an aider and abettor.”
There is nothing erroneous or misleading about this argument.
Third, there is no showing of prejudice here. The trial court properly instructed the jury regarding aiding and abetting with CALCRIM No. 401, and appellant nowhere argues that there was or is any error in the text or application of this instruction. As noted above, the jury was out only a few hours before returning their guilty verdict regarding the first count. The law is clear that in situations of this sort “[t]he court’s instructions, not the prosecution’s argument, are determinative, for ‘[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ ” (People v. Mayfield (1993) 5 Cal.4th 142, 179; see also People v. Mendoza (2000) 24 Cal.4th 130, 173; People v. Prieto (2003) 30 Cal.4th 226, 260; People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8.)
The court also instructed the jury with CALCRIM No. 200, stating that, in the event of any apparent inconsistency between the arguments of counsel and the instructions of the court, the latter controlled.
C. There was no instructional error.
Finally, appellant asserts that the court erred in instructing the jury with CALCRIM No. 372, which read, as given to this jury: “If the defendant fled or tried to flee immediately after the crime was committed that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” Per appellant, it was error to give this instruction “because no evidence supported a finding that appellant fled after being accused of committing the crime” and appellant “remained in the area without any attempt to leave until he was detained and arrested.”
We disagree with this argument on several grounds. In the first place, in order to justify giving the instruction quoted above there is no requirement that the alleged flight take place “after being accused of committing [a] crime.” Second, the jury could well conclude that the reason appellant “remained in the area” was that his confederates had abruptly fled that area when the store’s Serbellon saw them trying to steal the TV and chased them into the parking lot—followed, as per the facts set forth above, by the store manager and cashier Spencer.
Third, there clearly was evidence of apparent flight, specifically the testimony of Office Depot cashiers DeYoung and Spencer. DeYoung testified that, after appellant had driven the motorized cart around the front of the store, loudly demanding attention—which, as noted above, she provided—and then after Miles had left the store pushing the TV-loaded cart, appellant left the store “a few minutes later.” Lead cashier Spencer, the witness who first saw the foursome arrive together in the white Jeep but then enter the store “walking individually,” also observed appellant leave the store and go “towards Target” “[a] minute, two minutes, three minutes” after the Jeep left the parking lot with Miles and one of the two women in it.
This clearly constitutes ample evidence justifying the giving of CALCRIM No. 372. Penal Code section 1127c provides that a trial court “shall” give an instruction such as CALCRIM No. 372 in “any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt.” (Pen. Code, § 1127c.) There was such reliance here, as the prosecutor urged, in her closing argument to the jury, that appellant’s prompt departure from the store was a factor to be considered by the jury in considering his possible guilt. As our Supreme Court has recently held: “We have construed section 1127c ‘as mandating a rule that if there is evidence identifying the person who fled as the defendant, and if such evidence is relied on as tending to show guilt, then a flight instruction is proper.’ [Citation.] ‘A flight instruction is proper whenever evidence of the circumstances of [a] defendant’s departure from the crime scene... logically permits an inference that his movement was motivated by guilty knowledge.’ [Citation.] [¶]... ‘ “An instruction on flight is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.” ’ [Citations.]” (People v. Abilez (2007) 41 Cal.4th 472, 521-522 and cases cited therein.)
Another version of this rule was stated the same year by that court: “ ‘In general, a flight instruction “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.” ’ [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest ‘a purpose to avoid being observed or arrested.’ [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 328; emphasis added; see also: People v. Bradford (1997) 14 Cal.4th 1005, 1055 & 5 Witkin, Cal. Criminal Law (3d. ed.; 2009 Supp.) Criminal Trial, § 641(6), pp. 406-407.)
From the testimony of Office Depot cashiers DeYoung and Spencer, there clearly was ample evidence from which this jury “could find” that appellant fled the Office Depot store and, now lacking the vehicle in which he arrived at the shopping center, went elsewhere in that center. The trial court did not, therefore, err in giving CALCRIM No. 372.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.