Opinion
E045007.
2-24-2009
THE PEOPLE, Plaintiff and Respondent, v. JAMES EARL SMITH, Defendant and Appellant.
Lise M. Breakey, 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, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
Defendant and appellant James Earl Smith appeals his jury conviction for petty theft with priors (Pen. Code, §§ 666, 484, subd. (a)) and second degree burglary (§ 459). On due process grounds, he challenges two separate consciousness of guilt instructions given to the jury.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
A loss prevention officer at a grocery store observed defendant take several meat and deli items out of his shopping basket and slip them into the waistband of his pants. According to eyewitness testimony and surveillance tapes shown to the jury, defendant then went to the check stand, purchased a package of noodles, walked toward the front exit of the store, and took about two steps outside. Although defendant was being watched by security personnel dressed in plain clothes, they did not attempt to confront him at the door. Instead, defendant turned around and went back inside the store.
After defendant went back inside the store, he threw his bag of noodles on an empty check stand, walked quickly toward the rear of the store, and went inside the restroom. A box boy testified that he walked out of a restroom stall and observed defendant unloading items from his pants and placing them into the sink. After unloading the items into the sink, defendant left the restroom and walked towards the front of the store. Defendant was taken into custody by loss prevention officers when defendant exited the store for the second time. The total value of the items found in the sink was $95.33. When arrested, defendant was wearing a T-shirt and denim jeans. Underneath the jeans, he was wearing a second pair of pants with the pant legs tucked into his socks and wrapped with duct tape. He had $1.14 in his pockets.
In his defense, defendants friend and roommate testified defendant used a bicycle as transportation, and he had seen defendant duct tape both of his pant legs, presumably so they would not get caught in the bicycle chain. Citing evidence indicating that defendant actually purchased an item while inside the store, defendants counsel argued there was no evidence of an intent to steal before defendant entered the store. Counsel also argued there was no evidence showing defendant developed the intent to permanently deprive the store of the merchandise. Because defendant started to exit the store, but then went back inside and left the merchandise in a public restroom, counsel argued the evidence merely established defendant changed his mind.
The jury found defendant guilty of petty theft (§§ 666, 484, subd. (a)) and second degree burglary (§ 459). Defendant waived his right to a jury trial on the prior conviction allegations. The court found four prior conviction allegations to be true and to fall within the meaning of section 667.5, subdivision (b). The court sentenced defendant to four years in state prison, consisting of the upper term of three years for the petty theft with a prior plus one consecutive year as a result of having served a prior prison term. The court imposed the upper term of three years on the second degree burglary conviction but stayed it under section 654. The court also stayed the sentence on the remaining prior prison term allegations.
DISCUSSION
Flight Instruction (CALCRIM No. 372)
Defendant believes the evidence presented at trial is not in any way indicative of flight or evasiveness. He argues there is no evidence of flight because he immediately returned to the store after exiting, went into a public restroom, and did not seek an alternative exit from the store. He claims his act of divesting himself of the stores merchandise could not be interpreted as evasive because he did so in plain view of a uniformed store employee in a public restroom, merely indicating he had "a change of heart." As a result, he contends the trial court violated his right to due process and committed prejudicial error when it gave the jury a flight instruction. We disagree. " `A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury." (People v. Mendoza (2000) 24 Cal.4th 130, 180.) A flight instruction is generally warranted "where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." (People v. Ray (1996) 13 Cal.4th 313, 345.) "`[F]light 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. [Citation.]" (People v. Visciotti (1992) 2 Cal.4th 1, 60.) "`The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.]" (People v. Boyette (2002) 29 Cal.4th 381, 438.)
In our view, a jury could reasonably conclude defendants acts of returning to the store and leaving merchandise in a public restroom reflected consciousness of guilt. From the evidence, it could be inferred defendant did not merely change his mind about stealing merchandise but realized he was being watched as he left the store the first time with merchandise concealed in his pants. As a result, it could also be inferred he went back into the store thinking he could avoid arrest by surreptitiously leaving the merchandise somewhere inside. Rather than return the merchandise to the proper places inside the store, the jury could infer defendant went into the restroom hoping to avoid detection while removing the items concealed in his pants. However, the evidence indicates his plan was essentially foiled when a store employee emerged from a stall inside the restroom while he was in the process of putting the items in the sink. Therefore, the trial court did not err in giving the instruction.
Concealment of Evidence Instruction (CALCRIM No. 371)
Defendant believes that evidence presented to the jury shows he did not attempt to conceal evidence because the testimony was that he left merchandise in the sink in a public place in plain view of a uniformed store employee who was watching him. As a result, defendant claims the concealment of evidence instruction was not warranted by substantial evidence. "`[I]n order for a jury to be instructed that it can infer a consciousness of guilt from suppression of adverse evidence by a defendant, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference. [Citation.] [¶] To support an inference that the defendant attempted to suppress evidence, the record need not establish that the evidence actually was destroyed. [Citations.]" (People v. Hart (1999) 20 Cal.4th 546, 620.)
The People incorrectly assert defendant forfeited this claim by failing to make a timely objection in the trial court. (People v. Benavides (2005) 35 Cal.4th 69, 100 [holding appellate review is not waived where a defendant fails to timely object to an instruction on consciousness of guilt].)
Under the circumstances presented, the jury could reasonably infer defendant was attempting to suppress evidence when he removed the merchandise from his pants and put it in the sink in the restroom. Although the restroom was "public," it was behind a closed door and not in open view. In addition, the store employee testified he walked out of the restroom stall while defendant was placing the items into the sink. As a result, the jury could reasonably infer defendant did not see or realize the store employee was there when he began unloading the items from his pants and hoped to hide the evidence so it would not be found on his person should he be stopped when he again exited the store. We therefore conclude the instruction was based on substantial evidence and was not erroneous.
DISPOSITION
The judgment is affirmed.
We concur:
RICHLI, J.
GAUT, J.