Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. No. RIF133129, Ronald E. Owen, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Allison K. Simkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
In a bifurcated proceeding, a jury found defendant guilty of commercial burglary. (Pen. Code, § 459.) The jury thereafter found true the allegation that defendant had sustained a prior strike conviction. (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) Defendant was sentenced to a total term of two years eight months in state prison with credit for time served. On appeal, defendant contends (1) the trial court erred in failing to instruct the jury on theft as a lesser included offense, and (2) the trial court prejudicially erred by giving a special jury instruction defining moral turpitude. We find no prejudicial error and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
I
FACTUAL BACKGROUND
On November 6, 2006, around 3:30 p.m., Ms. Camarena, an asset protection specialist for a Target store in Riverside, was monitoring the store’s surveillance cameras when she saw defendant acting suspiciously in the automotive aisle, near the global positioning system (GPS) section. Camarena observed defendant pull a pair of blue and white, short, shear-type scissors from his pocket; cut the GPS from its locking peg display, a display that only Target employees could access; and leave the section. Defendant had a shopping cart containing a backpack and a pair of orange-handled scissors, both of which were sold at Target.
Camarena left the security office and began observing defendant’s conduct in person. She saw defendant place the GPS device on top of the backpack and then inside the backpack. Defendant appeared suspicious because he did not make eye contact with anyone as he pushed his shopping cart though the store. Defendant then proceeded to the plastics department, where he used the blue and white scissors to cut the GPS from its packaging. When shoppers or Target employees approached him, defendant would stop cutting the packaging and close the backpack. He would grab merchandise, as if he were shopping, and place the items in his shopping cart. The items included a white trash can and an ironing board. After shoppers or employees would pass by, defendant would resume cutting the GPS from its packaging. Once he finished cutting the GPS from its packaging, defendant placed the GPS into his right front pants pocket. He then placed the packaging, as well as the orange-handled scissors, inside the white trash can in the shopping cart, abandoned the shopping cart in the store, and began exiting the store without paying for the GPS.
Camarena checked the abandoned shopping cart and found the orange-handled scissors and the empty GPS packaging inside the white trash can. Camarena and uniformed security guards stationed in front of the store apprehended defendant when he was two or three feet outside of the store. They identified themselves as “Target security” and asked defendant to come back inside to talk about the unpaid merchandise. Defendant complied. When Camarena asked defendant to empty his pockets, defendant removed the GPS and the blue and white scissors from his pockets. Target did not sell the blue and white scissors at its store. In response to questioning by Camarena, defendant stated that he stole the GPS because he needed money. He also stated that he knew that Target sold GPS devices, and he knew other people who had stolen items from Target in the past and had gotten “away with it.” Defendant stated he planned to sell the GPS device.
Officer Acosta of the Riverside Police Department responded to the scene. In searching defendant, Officer Acosta found a box cutter and a wallet containing $11; however, he did not find any credit cards, personal checks, or cashier’s checks. Camarena told the officer that defendant had not used the box cutter to cut the GPS from its packaging but had used the blue and white scissors. The officer collected the blue and white scissors as evidence and arrested defendant for burglary.
Defendant testified on his own behalf. He claimed that he had entered the Target store to comparison shop for deals and that he had a shopping list of items he needed such as hangers, a trash can, an ironing board, soap, a duffel bag, and food. He had $11 on his person and was looking at several clearance items to potentially purchase. He grabbed a couple of things from the food section that cost 99 cents and then grabbed a backpack from a clearance display, as well as a pair of blue and white scissors and placed them in his shopping cart. While shopping, he passed the GPS section and decided to take a look. Defendant said he had always wanted a GPS, but that he did not have enough money to purchase it, so he decided to take one. He admitted cutting the GPS from the display and its packaging with the blue and white scissors and placing the GPS inside the backpack with some other items.
Defendant denied that he planned to steal the GPS when he entered the store. He claimed, “something came over” him, as he was not the type of person who committed crimes. He also stated that he panicked and walked toward the front of the store, intending to leave without paying for the GPS. He was then stopped by Camarena and the security guards before he could exit the store. He denied making any admissions to Camerena and claimed he did not know that Target sold GPS’s. He admitted that he had a box cutter in his shirt pocket but claimed it was a tool he used for work, although he was not working that day.
At the time defendant was apprehended, he did not have a shopping list in his pocket or in his hand. Camarena did not find any hangers or food items in defendant’s shopping cart. Camerena found the blue and white scissors in defendant’s pants pocket. She had never seen that type of scissors in the store before the incident and did not find that type when she searched the store later that same date. The white trash can defendant had placed in the shopping cart cost $14.99.
II
DISCUSSION
A. Failure to Instruct on Theft
Defendant contends the trial court erred in failing to instruct the jury on theft as a lesser included offense of burglary, arguing that the accusatory pleadings necessarily included the commission of a theft, and his defense was that he did not intend to steal when he entered the store. We disagree, as theft is not a necessarily lesser included offense of burglary under either the statutory elements or the accusatory pleading test. (People v. Bernal (1994) 22 Cal.App.4th 1455; People v. Tatem (1976) 62 Cal.App.3d 655, 658 (Tatem).)
A lesser included offense is necessarily included in the greater offense if either the statutory elements of the greater offense or the facts alleged in the accusatory pleading include all of the elements of the lesser offense, such that the greater offense cannot be committed without also committing the lesser offense. (People v. Sanchez (2001) 24 Cal.4th 983, 987-988, disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228.)
The Tatem court explained: “By statutory definition, petty theft (or theft of any kind) is not a necessarily included offense of burglary because burglary can be committed without committing theft [citations]. Nor is petty theft a necessarily included offense under the accusatory pleading in this case, since the information nowhere alleges [the defendant] stole or took away the property of another.” (Tatem, supra, 62 Cal.App.3d at p. 658, fn. omitted.)
Here, the accusatory pleading stated: “The District Attorney of the County of Riverside hereby accuses [defendant] of a violation of Penal Code section 459, a felony, in that on or about November 6, 2006, in the County of Riverside, State of California, he did willfully and unlawfully enter a certain building located at TARGET, 3520 TYLER STREET, RIVERSIDE, with intent to commit theft and a felony.” The information “nowhere alleges [that defendant] stole or took away the property of another.” (Tatem, supra, 62 Cal.App.3d at p. 658.) Accordingly, the trial court did not have a duty to instruct on theft as a lesser included offense to burglary.
Defendant’s attempt to distinguish Tatem is unavailing. Likewise, People v. Tillotson (2007) 157 Cal.App.4th 517 does not aid him. In that case, the appellate court found that a lesser included instruction was appropriate in a computer crimes conviction where the accusatory pleading indicated the defendant could not have committed the greater offense without also having committed the lesser included offense. (Id. at p. 541.) The court explained: “Count 4 of the information, amendment 3, alleged that [the defendant] ‘did knowingly and unlawfully access and without permission alter, damage, delete, destroy, and otherwise use data, a computer, a computer system, and a computer network belonging to E[quifax].’ (Italics added.) By using the italicized ‘and’ instead of ‘or’ (as Pen. Code[,] § 502, subd. (c)(1) does), the information alleged that [the defendant] used data, a computer, a computer system, and a computer network belonging to Equifax. In other words, under the information, the prosecution had to prove use in addition to alteration, damage, deletion, or destruction, in order to secure a conviction. As alleged in the accusatory pleading, [the defendant] could not have committed a violation of section 502, subdivision (c)(1) without also committing a violation of section 502, subdivision (c)(3). Thus, under the accusatory pleading test, in this case a violation of [] section 502, subdivision (c)(3) is a lesser included offense of a violation of section 502, subdivision (c)(1).” (Id. at p.541.)
Section 502, subdivision (c)(1) states a person commits a public offense when that person “[k]nowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.”
Defendant argues that because the accusatory pleading here provided that defendant had the “‘intent to commit theft and a felony,’” the accusatory pleading provided that a “theft necessarily took place as well as a felony.” We reject this contention because, as defendant recognizes, the pleading did not specifically state that defendant “‘stole or took away the property of another.’”
Moreover, instruction regarding a lesser included offense is not necessary where the evidence indicates that a defendant was either guilty of the greater offense or was not guilty at all. (People v. Ordonez (1991) 226 Cal.App.3d 1207, 1233.) 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. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162.) Evidence is substantial enough to merit consideration if a reasonable jury could conclude that the lesser offense, but not the greater, was committed. (Ibid.) A trial court is not required to instruct the jury on a lesser included offense if there is only weak evidence supporting the lesser included offense. (People v. Hagen (1998) 19 Cal.4th 652, 672.)
Here, there was no substantial evidence from which the jury could infer that defendant committed only a theft. There was overwhelming evidence that defendant had formed the intent to steal the GPS before he entered the store and not on a whim as he claimed. There was no dispute that defendant had stolen the GPS. The only issue was whether he formed the intent to steal prior to entering the store or after. Camarena testified that she saw defendant remove a pair of blue and white scissors from his pants pocket and cut the GPS from its locking display. Camarena stated that the blue and white scissors used by defendant were not sold at the Target store, and in fact, after the incident, Camarena verified that they were not sold at the Target store. Defendant had the blue and white scissors and only $11 in his possession when he entered the store, and told Camarena, after his apprehension, that he stole the GPS because he needed the money. Simply put, there was more than substantial evidence to show that defendant entered the Target store with the intent to commit theft, and his claims to the contrary were incredible. No factual basis existed for the jury to conclude that defendant had formed the intent to steal the GPS after he entered the Target store and, accordingly, the trial court was not required to give a theft instruction. (See People v. Dorsey (1995) 34 Cal.App.4th 694, 704-705 [holding that 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]; People v. Brenner (1992) 5 Cal.App.4th 335, 341 [holding that the trial court did not err in failing to instruct the jury 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 is 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.” (People v. 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, for the reasons noted above, it is not reasonably probable that the alleged error affected the outcome or that defendant would have been found guilty merely on theft rather than burglary.
B. Special Instruction Defining Moral Turpitude
Over defense counsel’s objection, the trial court allowed the People to impeach defendant with his prior felony convictions for making criminal threats and stalking but sanitized the convictions as convictions “involving moral turpitude.” Accordingly, at trial, defendant admitted that he had committed two prior felony convictions involving moral turpitude.
The court, over defense counsel’s objection, later instructed the jury with the People’s special instruction defining moral turpitude as follows: “[A c]rime of moral turpitude is one in which the defendant exhibited a willingness to lie or a general readiness to do evil.” (Italics added.)
Challenging the italicized portion of the instruction, defendant claims that the trial court prejudicially erred in instructing the jury with the People’s special instruction defining moral turpitude because it improperly instructed the jury to consider his disposition to commit criminal acts. He therefore believes the instruction “constituted reversible waiver by lessening the state’s burden of proof” and violated his federal constitutional rights to trial by jury and due process.
As the People point out, in People v. Castro (1985) 38 Cal.3d 301, our Supreme Court held that any prior felony conviction that “necessarily involves moral turpitude” is admissible to impeach a witness’s testimony. (Id. at p. 306.) Castro defined moral turpitude as the “‘general readiness to do evil.’” (Id. at p. 314; accord, People v. Barnett (1998) 17 Cal.4th 1044, 1126-1127.) Castro made no attempt to list those felonies that do not involve moral turpitude, but made clear that moral turpitude does not depend on dishonesty being an element of the crime. (Castro, at pp. 314-315.) Hence, the trial court properly instructed the jury that a crime involving moral turpitude included one where the defendant exhibited a general readiness to do evil. (See People v. Gray (2007) 158 Cal.App.4th 635, 640 [modified instruction limiting moral turpitude to dishonesty was incorrect as “Our Supreme Court has defined moral turpitude more broadly as a ‘“general readiness to do evil,”’ which may, but does not necessarily, involve dishonesty”].) Defendant neither cites authority holding that such an instruction was improper, nor does he show there was a reasonable likelihood the jury misapplied the instruction. (See People v. Cain (1995) 10 Cal.4th 1, 36.) Accordingly, we reject defendant’s unsupported claims.
Defendant also argues that the court erred in sua sponte instructing the jury with Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 316, which limits consideration of prior crimes evidence to the issue of credibility. The court had no sua sponte duty to instruct with CALCRIM No. 316. (See People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278 [analogous instruction of CALJIC No. 2.23]; see also Evid. Code, § 355 [court upon request shall instruct jury on limited use of evidence]; People v. Hernandez (2004) 33 Cal.4th 1040, 1051 [“although a court should give a limiting instruction on request, it has no sua sponte duty to give one”].)
CALCRIM No. 316, in pertinent part, provides: “If you find that a witness has been convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witness’s testimony. The fact of a conviction does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.”
CALJIC No. 2.23 provided, “The fact that a witness has been convicted of a felony, if this is a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of a conviction does not necessarily destroy or impair a witness’s believability. It is one of the circumstances that you may consider in weighing the testimony of that witness.”
Defendant concedes his counsel never specifically requested CALCRIM No. 316 but argues the court should have given it because defense counsel mentioned it during the hearing on motions in limine held at the beginning of trial. Defendant is mistaken, as it appears CALCRIM No. 105 is the instruction to which defense counsel was referring during those discussions, and the court gave that instruction to the jury. (See CALCRIM No. 105.)
Even if we assume for the sake of argument that the trial court erred in failing to instruct the jury with CALCRIM No. 316 on the limited use of defendant’s prior convictions, the absence of the instruction was clearly harmless in this case. Reversal is only warranted for instructional error of this sort if “‘it is reasonably probable that a miscarriage of justice resulted.’ [Citations.]” (People v. Lomeli (1993) 19 Cal.App.4th 649, 656, disapproved on another ground by People v. Hernandez, supra, 33 Cal.4th at p. 1052, fn. 3; see also People v. Watson (1956) 46 Cal.2d 818.) No miscarriage of justice is shown here. Camarena was a credible witness, whose account of the burglary was essentially corroborated by the physical evidence found in defendant’s possession. In contrast, defendant’s defense was incredible. Thus, it is not reasonably probable that defendant would have obtained a more favorable verdict if the instruction had been given. (Lomeli, at p. 656.)
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P J., KING, J.
Under section 502, subdivision (c)(3), a person commits a public offense when that person “[k]nowingly and without permission uses or causes to be used computer services.”