Opinion
B223739
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT K. WILSON et al., Defendants and Appellants.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Robert K. Wilson. Gary C. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant Melinda Faye Triplett. Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant Gwendolyn Denise Hayes. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA087523)
APPEAL from the judgment of the Superior Court of Los Angeles County. Steven D. Blades, Judge. Affirmed in part, reversed in part and remanded with directions.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Robert K. Wilson.
Gary C. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant Melinda Faye Triplett.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant Gwendolyn Denise Hayes.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
SUMMARY
This case arises from a series of thefts and fraudulent returns at several Kohl's department stores. Suspicious purchases and returns by defendants Melinda Faye Triplett and Gwendolyn Denise Hayes at a Glendora Kohl's store resulted in a "be on the lookout" alert by the Kohl's loss prevention team. With the Kohl's loss prevention team on high alert, defendants Triplett and Hayes, joined by defendant Robert K. Wilson, were apprehended making returns without receipts and stealing merchandise at the La Verne and Upland Kohl's stores.
Defendants were charged by second amended information with burglary and petty theft, after the criminal case against Hayes and Triplett (KA088619) was joined and consolidated with the separate case against Wilson (KA087523). In the second amended information, Wilson was charged with one count of second degree commercial burglary of the Kohl's La Verne store (Pen. Code, § 459) (count 1). Triplett and Hayes were each charged with two counts of second degree commercial burglary of the La Verne and Upland stores (Pen. Code, § 459) (counts 1 and 5), as well as two counts each of petty theft with a prior theft conviction (Pen. Code, § 666) (counts 3 and 6 as to Triplett, and counts 4 and 7 as to Hayes).
The jury convicted all three defendants of burglary (counts 1 and 5). Triplett and Hayes each admitted one theft-related prior. Triplett was convicted of one count of attempted petty theft with a prior at the Upland store (count 6). Hayes was convicted of petty theft with a prior and attempted petty theft with a prior at the La Verne and Upland stores (counts 4 and 7). Wilson was sentenced to the low term of 16 months. Triplett was sentenced to the low term of 16 months for each of the burglaries, and eight months on the attempted petty theft, to run concurrently. Hayes received a suspended three-year sentence, and was placed on formal probation.
Each defendant has separately appealed. Wilson claims instructional error related to the admission of evidence that he committed a burglary at the Upland Kohl's. (He was convicted after pleading guilty to petty theft in a separate case prosecuted in San Bernardino County.) Wilson contends that the "other crimes" instruction, which permitted the jury to consider evidence of the Upland burglary, improperly characterized the intent required for burglary.
Triplett contends insufficient evidence supports her convictions, and that she could not be convicted of burglary as an aider and abettor as a matter of law on the instructions given. She also claims the trial court failed to instruct the jury sua sponte on when a burglary is completed.
Hayes submitted a brief under People v. Wende (1979) 25 Cal.3d 436 (Wende)in which no issues were identified. In a supplemental brief, Hayes states that she did not commit the crimes, and that evidence was improperly excluded.
We sent a letter to the parties under Government Code section 68081, inviting briefing on whether attempted petty theft with a prior is a crime (People v. Bean (1989) 213 Cal.App.3d 639) and, if not, how we should dispose of defendants Triplett's and Hayes's sentences on count 6 and 7 for attempted petty theft with a prior. We also sought briefing on the effect of the September 2010 amendment to Penal Code section 666 (requiring proof of three instead of only one theft-related prior) on Hayes's petty theft with a prior conviction and sentence on count 4. (People v. Vinson (2011) 193 Cal.App.4th 1190.) We received letter briefs from Hayes, Triplett, and respondent.
We conclude that attempted petty theft with a prior is not a crime, and therefore Hayes's and Triplett's convictions on counts 6 and 7 must be reversed, and a judgment of conviction for attempted petty theft should be entered instead. We also conclude that the recent amendment to Penal Code section 666 applies retroactively and requires proof of three prior theft convictions instead of one. (See Stats. 2010, ch. 219, § 15.) Therefore, Hayes's conviction on count 4 must be reversed.
We disagree with defendants' other contentions on appeal and therefore affirm the remainder of the judgments.
FACTS
On April 16, 2009, defendants Triplett and Hayes walked into the Glendora Kohl's department store. They used store credit from multiple gift cards to buy clothing. Their conduct caught the attention of loss prevention supervisor Natalie Dillon, who researched the source of the store credits on the gift cards, and discovered that two returns had been made to the store earlier that day. One return was made with a receipt, and was for women's underwear. The other return was made without a receipt, and was for four packages of two Oral-B Precision Clean toothbrush heads, with a retail value of $24.99 each. The returns were made in immediate succession. Because the return of the toothbrush heads was made without a receipt, only $17.99 was refunded for each item, since the store policy was to refund the lowest price for which the items had been sold. Dillon checked the toothbrush head display and discovered that four items were missing. She also checked the store inventory, and discovered that four packs were unaccounted for. She followed Hayes and Triplett out of the store, and noted the license plate of their car. Although she did not stop defendants, she sent an email to surrounding Kohl's stores, advising them to "be on the lookout for" defendants Hayes and Triplett. She included the information about their car in her email.
There was some evidence that two other, unrelated women attempted to make purchases with fraudulent gift cards that same day, but the court was concerned that such evidence would prejudice defendants Triplett and Hayes. That evidence was not introduced at trial.
Two days later, just before 5:00 p.m., defendants Triplett and Hayes, joined this time by Wilson, entered the La Verne Kohl's store. Hilary Deaner, a loss prevention supervisor, had received Dillon's email and immediately recognized the two female defendants from Dillon's description. She focused the surveillance cameras on the three defendants and started recording. The recording was played for the jury. The defendants split up immediately after entering the store. Triplett had a bag in her hands, and she and Hayes made their way to the store's customer service area. Wilson walked to the store's electronics aisle. He had a pair of sunglasses, from which he removed a price tag, discarding it in another part of the store. Kohl's staff later recovered the discarded tag.
Wilson made his way to the toothbrush display, took four packages of toothbrush heads, and concealed them in the waistband of his pants. Wilson then walked to the customer service area, where Hayes and Triplett were being helped by a customer service associate, Amanda Aparicio. Triplett returned items without a receipt. Hayes returned four packages of toothbrush heads, also without a receipt. They were both given store credit for the returns. Hayes signed the return slip "Sheila Riley," and the other slip was signed "Kimberly" with an illegible last name. The parties stipulated that Hayes's California driver's license bore the name "Gwen Hayes Riley," and that Riley was her married name.
Wilson entered the men's room while the other defendants were making their returns. After Wilson left the restroom, customer service area supervisor Richard Abilez searched it at Deaner's behest, but did not find any Kohl's merchandise there. Deaner also checked the toothbrush head display and discovered that four packages of heads were missing, and the store computer confirmed that four packs had not been sold.
The three defendants left the store together around 5:03 p.m. They got in a white Ford Taurus with the same license plate noted in Dillon's email.
Deaner was unable to confirm that the toothbrush heads and sunglasses were missing, and not discarded in the restroom, until after the defendants left the store. Therefore, she did not intercept the defendants and instead called the Kohl's Upland store and spoke with loss prevention supervisor Erik Pelaez. She also called Dillon. She wanted to warn the surrounding stores to be on the lookout for the defendants. She consulted MapQuest, which placed the Upland store only eight miles and 12 minutes from the La Verne store.
After receiving Deaner's call, Pelaez saw the three defendants arrive at the Upland Kohl's store at around 5:18 p.m. They were in a white car with a license plate matching the one described by Dillon. He watched defendants from his office through the store's closed circuit television system. He recorded the footage of defendants, and that video was also played for the jury. The defendants separated once they entered the store. When they entered, Triplett was carrying a plastic bag, Hayes was pushing an empty shopping cart, and Wilson was empty handed. Triplett approached the customer service counter with the bag and attempted to return four packages of toothbrush heads. Ashlee Hopkins assisted her. Pelaez told Hopkins that if Triplett did not have a receipt, she should reject the return and offer a corporate refund instead. Corporate refunds require a customer to provide identification and personal information, which is entered into the store's computer system. The refund request is then processed by the corporate office, which would decide whether or not to approve it. Hopkins offered Triplett a corporate refund. Triplett declined the offer and said she would try to locate her receipt. She took the merchandise, and Hopkins voided the return.
In the meantime, Wilson approached a display of sunglasses, took a pair, removed the tag, and concealed the sunglasses in his pocket. Afterwards, he approached the toothbrush head display, took two packages of toothbrush heads, and concealed them in his waistband. He then met up with Triplett and Hayes. Wilson took some merchandise from a shopping cart and got in line at the registers at the front of the store. But, before making a purchase, he got out of line, and walked through the men's department to the jewelry department with the other two defendants. The defendants then made three separate purchase transactions at the jewelry counter, using store credit. The store credit was from the return of toothbrush heads at the La Verne and Glendora Kohl's stores. Pelaez called the police to report a theft in progress.
After making their purchases, defendants left the store, and made their way to their car. Triplett got in the front passenger seat, Hayes got in the driver's seat, and Wilson started to get into the back passenger side of the car, when he was stopped by police.
Upland Police Officers Richard Madrid, Michael Hontz, and Chris Hilliard responded to Kohl's call. They saw the three defendants walking toward the white Ford Taurus. As Wilson was entering the car, Officer Madrid called for Wilson to come to him with his hands up. Wilson grabbed something from his waistband and threw it in the backseat of the car, and then walked to the officer. Officer Hontz searched the car. There were items scattered on the rear passenger seat, including four packages of toothbrush heads. Another four packages were found in a grocery bag, along with a pair of sunglasses. Another pair of glasses was found in Wilson's right front pants pocket. The police found probable cause to arrest Wilson, but not the other two defendants. Wilson admitted to taking the items from the La Verne and Upland stores and apologized. When he was arrested, he had only $17 on him.
The prosecution moved to introduce evidence of Wilson's conduct at the Upland store, for which he was prosecuted in San Bernardino but not charged in this case, under Evidence Code section 1101, subdivision (b), to prove his specific intent to commit burglary at the La Verne Kohl's store. The trial court concluded that Wilson's conduct at the Upland store was relevant and not unduly prejudicial, and could be introduced to prove a common scheme or plan and intent for the La Verne burglary. Wilson's counsel thereafter requested slight modifications to CALCRIM No. 375 (the standard Evid. Code, § 1101, subd. (b) instruction), which are not at issue in this appeal. Counsel did not request any modification of the portion of the instruction concerning the use of other crimes evidence to prove specific intent to commit the La Verne burglary. However, the court suggested, and counsel agreed, to insert language that the prosecution had to prove that "when Wilson entered the Kohl's store in La Verne, . . . he had the specific intent to commit theft within the store." Before the written instructions were given to the jury, the court asked Wilson's counsel if the court's copy of the revised CALCRIM No. 375 was "wrong," and Wilson's counsel stated: "It seems the same as mine, but I'll double-check." The issue was not revisited.
However, the written CALCRIM Instruction No. 375 that was given to the jury provided in pertinent part: "The People presented evidence that defendant Wilson committed the offense of burglary in violation of Penal Code section 459 at the Kohl's store in Upland, San Bernardino County, California. He is not charged with that offense in this case. [¶] . . . [¶] If you decide that defendant committed the offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant acted with the specific intent to commit a theft at the Kohl's store in La Verne, Los Angeles County, California in this case; or [¶] The defendant had a plan to commit the offenses alleged in this case." (Italics added.) Thus, the written instruction did not refer to Wilson's specific intent to commit burglary at the time he entered the La Verne store.
The instruction that the court read aloud to the jury did refer to Wilson's specific intent at the time he entered the store, as counsel and the court had agreed. The court instructed the jury in relevant part: "If you decide that the defendant Wilson committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not defendant Wilson entered the Kohl's store in La Verne, Los Angeles County, California, that he had the specific intent to commit theft within the store." (Italics added.) In addition, the court gave CALCRIM No. 1700, providing in relevant part that "[y]ou may not find a defendant guilty of burglary unless you all agree that he or she intended to commit theft at the time of the entry."
After the conclusion of the prosecutor's case in chief, Triplett made a Penal Code section 1118.1 motion for a judgment of acquittal of all counts, which was denied by the trial court. The jury convicted all three defendants of burglary (counts 1 and 5). Both Triplett and Hayes admitted one prior theft conviction. Triplett was convicted of one count of attempted petty theft with a prior (count 6, Upland store). Hayes was convicted of petty theft with a prior and attempted petty theft with a prior (count 4, La Verne store; count 7, Upland store).
DISCUSSION
Defendants appeal separately, making different contentions (although defendant Triplett has asked to incorporate any argument made by her codefendants that would inure to her benefit). Defendant Wilson contends that the written "other crimes" instruction improperly characterized the intent required for burglary. Defendant Triplett contends that insufficient evidence supports her conviction on each count, and that she cannot be guilty of burglary under an aiding-and-abetting theory because the trial court failed to instruct the jury on when a burglary is completed, and because the instructions stated the wrong burden of proof. Appellate counsel for defendant Hayes submitted a brief under Wende, supra, 25 Cal.3d 436, requesting our independent review of the record. Hayes, herself, submitted a supplemental brief, attacking the sufficiency of the evidence and the trial court's failure to admit certain evidence. We address each defendant's appeal separately below, as well as the issues identified in our Government Code section 68081 letter.
1. Defendant Wilson
Wilson does not challenge the admissibility of the evidence of the uncharged burglary at the Upland Kohl's store, but contends the written instruction on how the jury could consider the evidence was erroneous. Specifically, Wilson contends that the "intent" portion of the written instruction did not make clear the prosecution must prove defendant intended to commit theft at the time of entry into the store.
We determine whether a jury instruction correctly states the law under the de novo standard of review. (People v. Posey (2004) 32 Cal.4th 193, 218.) Review of the adequacy of instructions is based on whether the trial court "fully and fairly instructed on the applicable law." (People v. Partlow (1978) 84 Cal.App.3d 540, 558.) "'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole[] . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]" (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
Burglary is committed when a person "enters any house, room, apartment, tenement, shop, warehouse, store . . . with intent to commit grand or petit larceny." (Pen. Code, § 459.) A necessary element of this crime is the defendant intended to commit theft at the time of entry. (People v. Holt (1997) 15 Cal.4th 619, 669.) Generally, other crimes evidence is inadmissible to prove defendant committed the charged offense. Evidence Code section 1101, subdivision (a) provides that "evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." However, section 1101, subdivision (b) permits admission of evidence that a person committed a crime or other act when it is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.
Here, the standard CALCRIM No. 375 instruction on the use of other crimes evidence to prove intent to commit the charged crime provides: "[The defendant acted with the intent to [insert specific intent required to prove the offense[s] alleged]in this case]." (Boldface omitted.) Defendant Wilson complains that the written instruction provided to the jury did not make clear that the intent to steal must be harbored at the time of entry because it provided only: "The defendant acted with the specific intent to commit a theft at the Kohl's store in La Verne, Los Angeles County, California in this case," without stating defendant entered the store with the requisite intent. However, the jurors were also given, orally and in writing, CALCRIM No. 1700, stating the jury could not convict defendant of burglary unless they all agreed that "[t]he defendant entered a building; [¶] [and] [¶] When he or she entered a building, he or she intended to commit theft. [¶] . . . [¶] . . . You may not find a defendant guilty of burglary unless you all agree that he or she intended to commit theft at the time of the entry." (See CALCRIM No. 1700.) And, the written CALCRIM No. 375 instruction made clear that the prosecution had to prove every element of the La Verne burglary beyond a reasonable doubt.
The instruction read to the jury contained the specific intent language desired by defendant. However, when there is a conflict between oral and written instructions, the written instructions prevail. (People v. Osband (1996) 13 Cal.4th 622, 687.)
Respondent contends this issue was forfeited, because Wilson did not object to the written instruction at trial. Wilson claims it is unclear from the record whether he had an opportunity to object. He also argues that because his substantial rights are affected, this court may review the error without an objection. Generally, a party may not complain on appeal about an instruction that was correct in law and responsive to the evidence unless the party objected. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) Even so, we may review any instruction which affects the defendant's "substantial rights," with or without a trial objection. (Pen. Code, § 1259.) Determining whether a claimed instructional error affected the substantial rights of a defendant necessarily requires an examination of the merits of the claim, to the extent that we must determine whether the claimed error was prejudicial (if the instruction was erroneous). (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) And, Wilson contends that because the challenged instruction was not correct in law, he did not have to object at trial. (See People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) Therefore, we review defendant's claim of error on the merits.
As discussed above, it appears that Wilson's counsel had an opportunity to review the trial court's written instructions, but did not notice the error. Therefore, the claim that defendant did not have an opportunity to object is unfounded.
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The instructions must be read as a whole, and the standard CALCRIM burglary instruction made it abundantly clear that the prosecution had to prove defendant intended to commit theft when he entered the La Verne store. (CALCRIM No. 1700 ["You may not find the defendant guilty of burglary unless you all agree that [he or she] intended to commit . . . [theft] at the time of the entry."].) In this case, there was no danger that the jury was misled by the instructions. In the context of the whole charge to the jury, the permissible use of the evidence of the Upland burglary was clear, and the jury could not possibly have concluded that defendant was guilty of burglary of the La Verne store without finding he entered that store with the intent to steal merchandise. The jury was advised of the various elements of burglary, and that the prosecution had to prove them beyond a reasonable doubt. Therefore, we find no prejudicial error.
2. Defendant Triplett
a. Sufficiency of the evidence
Defendant Triplett contends there was insufficient evidence supporting her convictions of burglary at the La Verne and Upland Kohl's stores, and attempted petty theft at the Upland store. Before a judgment of conviction can be set aside for insufficiency of the evidence, it must clearly appear that on no hypothesis whatsoever is there sufficient substantial evidence to support the judgment. (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Johnson (1980) 26 Cal.3d 557, 575-578.) The record must be reviewed in its entirety when determining whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 316-320; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable double." (People v. Johnson, supra, 26 Cal.3d at p. 578.) The substantial evidence standard of review is the same when the evidence of guilt is primarily circumstantial. (People v. Holt, supra, 15 Cal.4th at p. 668.)
As discussed above, burglary is committed when a person "enters any house, room, apartment, tenement, shop, warehouse, store . . . with intent to commit grand or petit larceny." (Pen. Code, § 459.) Larceny involves the taking and carrying away of property of another, without claim of right, with intent to deprive him of it wholly and permanently. (Callan v. Superior Court (1962) 204 Cal.App.2d 652, 667; see Pen. Code, § 484.) Larceny is committed by returning stolen merchandise for a refund. (See, e.g., People v. Davis (1998) 19 Cal.4th 301, 316.) "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (Pen. Code, § 21a.)
A defendant may be guilty as a principal if she is a direct perpetrator of a crime, or if she aided and abetted the commission of a crime. (Pen. Code, § 31.) The test for aiding and abetting is whether the accused in any way, directly or indirectly, aided the perpetrator of the offense or advised and encouraged its commission with knowledge of the perpetrator's wrongful purpose. (People v. Butts (1965) 236 Cal.App.2d 817, 836.) If a defendant's guilt is predicated upon the theory that she aided and abetted the perpetrator, the defendant's intent to encourage or facilitate the actions of the perpetrator must have been formed prior to or during the commission of that offense. (People v. Montoya (1994) 7 Cal.4th 1027, 1039.) For purposes of determining guilt as an aider and abettor, "a burglary is considered ongoing during the time the perpetrator remains inside the structure." (Id. at p. 1045.)
During his closing argument, the prosecutor advanced a theory that Triplett was guilty of aiding and abetting Wilson's theft of toothbrush heads at the La Verne store by acting as a "fence" to obtain store credit by returning them at the Upland store. The prosecutor argued the burglary was not completed when Wilson stole the toothbrush heads in La Verne but when defendants obtained merchandise at the Upland store using store credit from fraudulent returns. Triplett contends she cannot be guilty under an aiding and abetting theory for the La Verne burglary based on her conduct at the Upland store, as it occurred after Wilson's La Verne burglary was complete. (See People v. Brady (1987) 190 Cal.App.3d 124, 132, disapproved on other grounds as stated in People v. Montoya, supra, 7 Cal.4th at p. 1045 [aid to the perpetrator after the crime is committed is not aiding and abetting].) However, Triplett has construed the prosecutor's theory too narrowly, and in any event, the evidence established that Triplett encouraged the La Verne burglary before and during its commission.
When Triplett and Hayes went to the Glendora Kohl's store, they purchased items using various gift cards which were obtained by returning toothbrush heads without receipts that same day. Returning items without a receipt results in a refund of significantly less money than what the items were worth, creating a strong disincentive to make such a return if the items were lawfully purchased. When the Glendora store inventory was searched, toothbrush heads were missing. Thereafter, all three defendants entered the La Verne store, where additional returns were made by defendants Hayes and Triplett, including the return of more toothbrush heads by Hayes.
Neither defendant signed the return receipts with his or her real name. Defendant Wilson stole four sets of toothbrush heads, all three defendants departed the La Verne store together, and they went immediately to the Upland Kohl's, where again, Wilson stole more toothbrush heads. Triplett attempted to return toothbrush heads at the Upland store, and the three made purchases using the store credit obtained from the return of toothbrush heads at the Glendora and La Verne Kohl's stores. When Wilson was arrested, he had only $17 in his possession. Eight packages of toothbrush heads were found in defendants' car, with a retail value of almost $200; clearly, Wilson could not have intended to buy any toothbrush heads when he entered the Kohl's stores. The jury could reasonably infer from the evidence that all defendants acted pursuant to a scheme to steal toothbrush heads and fraudulently return them without receipts to obtain store credit.
These same facts also support the jury's finding that Triplett was guilty as a direct perpetrator (through her attempt to return stolen toothbrush heads) or as an aider and abettor (due to Wilson's burglary) of the Upland burglary, and for attempted petty larceny (the attempted return). The jury could reasonably infer that Triplett entered the Upland store with the intent to make a fraudulent return of stolen toothbrush heads. In reviewing the sufficiency of evidence to support a burglary finding, the requisite intent is rarely demonstrated by direct proof and, as a result, may be inferred from facts and circumstances. (People v. Holt, supra, 15 Cal.4th at p. 670.) The jury could reasonably infer that she was aware of Wilson's intent to steal more toothbrush heads at the Upland store, and encouraged this conduct. Therefore, Triplett's convictions are supported by sufficient evidence.
b. Attempted petty theft with a prior
Although there is sufficient evidence that Triplett was guilty of attempted petty theft, and had a prior theft-related conviction, we requested briefing on whether attempted petty theft with a prior is a crime. "'"There is no criminal common law in California. All public offenses or crimes are statutory, and unless there is in force at the time of the commission or omission of a particular act a statute making it a crime or a public offense, no one can be adjudged to suffer punishment for its commission or omission."' [Citation.]" (People v. Vasilyan (2009) 174 Cal.App.4th 443, 449.)
Penal Code section 666 (hereafter section 666) provides, in relevant part, that "every person who, having been convicted three or more times of petty theft, grand theft, auto theft . . . burglary, carjacking . . . and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison." (§ 666, subd. (a), italics added.) In People v. Bean, supra, 213 Cal.App.3d at page 643, the court concluded that because section 666 requires a present conviction for petty theft, the statute cannot be violated by an attempt to complete a petty theft. Respondent concedes that attempted petty theft with a prior is not a crime.
The only dispute is the resolution of this error in the judgment of conviction on count 6. Bean does not provide guidance, as the error there occurred in a plea bargain and the plea to the nonexistent crime was determined to be a nullity. Respondent contends the judgment for attempted petty theft with a prior should be reversed with instructions to enter a new judgment of conviction for attempted petty theft (Pen. Code, § 484) since that crime was proven at trial. Triplett contends that the judgment on count six must be reversed and the sentence stricken because retrial is barred by double jeopardy.
Triplett relies on People v. Broussard (1977) 76 Cal.App.3d 193. In Broussard, the defendant was charged with attempted murder, but was found guilty of the lesser included offense of "attempted involuntary manslaughter." The court concluded that this was not a crime, and because the jury had impliedly acquitted defendant of attempted murder and attempted voluntary manslaughter, double jeopardy barred retrial. The court also concluded that retrial was barred on other offenses arising out of the same incident. (Id. at pp. 198-199.)
This case is different than Broussard, because retrial is not necessary. The jury was instructed on the elements of petty theft and found Triplett guilty of attempted petty theft, which is a crime. Evidence of Triplett's prior theft conviction was admitted only for purposes of sentencing. (People v. Bouzas (1991) 53 Cal.3d 467, 474-475 [Section 666 is merely a sentence-enhancing statute, and not a substantive-offense statute, and a former theft conviction is not an element of the crime that must be proven to the jury].) Because section 666 is an enhancement statute, the proper remedy is to reverse the conviction, and remand with directions to enter a new judgment of conviction for attempted petty theft (Pen. Code, § 484), and to order resentencing of Triplett accordingly. (See, e.g., People v. Finley (1994) 26 Cal.App.4th 454, 459.)
c. Instructional error
i. Guilt as an aider and abettor
Defendant Triplett contends she was improperly convicted of the Upland burglary under a theory that she aided and abetted Wilson, because the prosecution had to prove beyond a reasonable doubt that Wilson, the perpetrator, committed burglary, yet the jury was instructed that the burden of proof of Wilson's uncharged crime was the preponderance of the evidence standard. The disputed written instruction provided as follows: "The People presented evidence that defendant Wilson committed the offense of burglary in violation of Penal Code section 459 at the Kohl'[s] store in Upland, San Bernardino County, California. He is not charged with that offense in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed that offense. . . ."
Triplett acknowledges that as to Wilson, the burden of proof of an uncharged offense under Evidence Code section 1101, subdivision (b) is the preponderance of the evidence standard. (See People v. Mendoza (1974) 37 Cal.App.3d 717, 724 [preponderance of the evidence standard applicable to Evid. Code, § 1101, subd. (b) evidence].) However, she claims that as to her, the instruction allowed the jury to improperly find by a preponderance of the evidence that Wilson committed a burglary, circumventing the beyond a reasonable doubt burden of proof that defendant Triplett aided and abetted that burglary. We disagree.
CALCRIM No. 375 clearly pertained only to Wilson, permitting the use of the uncharged offense as evidence that he possessed the requisite intent or acted pursuant to a common plan in committing the La Verne burglary. Also, the jury was properly instructed on the principles of aider and abettor guilt: "To be guilty of burglary as an aider and abettor, a defendant must have known of the perpetrator's unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate, or encourage commission of the burglary before the perpetrator finally left the structure." (CALCRIM No. 1702.) "'To prove that a defendant is guilty of a crime based on aiding and abetting of that crime, the people must prove, one, the perpetrator committed the crime.'"
The general charge to the jury provided that the applicable burden of proof is beyond a reasonable doubt, unless the court specified otherwise. Under these circumstances, the jury could not possibly have applied the wrong standard of proof to Triplett, as it was clear that the prosecution had to prove that Wilson, the perpetrator, committed the Upland burglary beyond a reasonable doubt in order for Triplett to be guilty of aiding and abetting that burglary. In any event, there was ample evidence that Triplett was guilty of the Upland burglary as a direct perpetrator, for her attempt to return stolen merchandise at the Upland Kohl's and, when she was offered only corporate credit, her behavior in leaving the Upland store with the stolen toothbrush heads.
ii. Sua sponte instruction on duration of burglary
Defendant Triplett contends the prosecutor advanced a theory that the burglary in La Verne continued until the stolen merchandise was returned in Upland, requiring the court to instruct the jury sua sponte on when a burglary is completed. Respondent urges that any claim of error has been forfeited because no request for such an instruction was made at trial. (See, e.g., People v. Hudson, supra, 38 Cal.4th at pp. 1011-1012.) Triplett argues that because her substantial rights are implicated, this court may review the claimed error in absence of an objection. We must determine whether the court was obligated to provide such an instruction and, if so, whether the failure to do so implicated Triplett's substantial rights, and therefore reach the merits. (See People v. Andersen, supra, 26 Cal.App.4th at p. 1249.)
"'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.) If the court was required to give an instruction sua sponte, no objection is required to preserve the issue for appeal. (See People v. Carter (2010) 182 Cal.App.4th 522, 532 ["An instruction that must be given sua sponte - Latin for 'on one's own accord' or 'of one's own will' - is one that, by legal definition, requires '"no trial court action by the defendant to preserve it."'"].)
We find the aiding and abetting instructions provided to the jury made clear that the jury had to find beyond a reasonable doubt that Triplett formed the intent to "aid, facilitate, promote, instigate, or encourage commission of the burglary before [she] finally left the structure." Therefore, we conclude that the question of when a burglary was completed was not so "closely and openly" connected to the facts before the court as to give rise to a sua sponte obligation to give the jury a pinpoint instruction on when a burglary is completed, and that the instructions provided by the court were adequate under the circumstances. The charge as a whole made clear that Triplett must have formed the intent to aid and abet Wilson's La Verne burglary before Wilson left the store.
3. Defendant Hayes
We appointed appellate counsel to represent defendant Hayes. Appointed counsel filed a brief pursuant to Wende, supra, 25 Cal.3d 436, in which no issues were raised. The brief included a declaration from counsel that he reviewed the record and sent a letter to defendant explaining his evaluation of the record. Counsel further declared that he advised defendant of her right, under Wende, to submit a supplemental brief. Defendant submitted a supplemental brief to this court, raising several issues. Hayes states that she returned underwear to the Glendora Kohl's because it did not fit her daughter, and that she went "from store to store" because the stores did not have what she was looking for. She also states that the driver's license number on the receipt for the return of toothbrush heads is not hers, and that the jury did not receive evidence that two other women were in the Glendora store attempting to make purchases with gift cards, or that Wilson was convicted in San Bernardino for his crime at the Upland Kohl's.
As summarized above, there is ample evidence supporting defendant's convictions (except as discussed, post), such as her return of toothbrush heads at the Glendora and La Verne stores without receipts, that she signed the La Verne return slip "Sheila Riley," and that she drove defendants from store to store to carry out their scheme to return stolen goods for store credit. The existence of conflicting facts does not render this evidence insufficient. (See, e.g., People v. Proctor (1992) 4 Cal.4th 499, 528-529.) In fact, Hayes's supplemental brief concedes that "[i]t is a fact that crimes were committed in the Laverne [sic] and [U]pland stores." She appears to argue that the evidence of any wrongdoing at the Glendora store was insufficient, but she was not charged or convicted for any conduct occurring at the Glendora store. She also appears to complain that evidence of Wilson's San Bernardino conviction was not admitted at trial, nor was evidence that there were two other women making suspicious purchases at the Glendora Kohl's. However, the fact of Wilson's San Bernardino conviction could not possibly have helped Hayes, and evidence of wrongdoing by other unrelated women at the Glendora store was properly excluded as irrelevant, and likely would have been damaging to Hayes, to the extent the jury could have concluded that they were working in concert.
a. Amendments to section 666
We requested briefing on the impact of recent amendment to section 666 on Hayes's conviction for petty theft with a prior (count 4). At the time of trial, section 666 required proof of only one prior theft conviction. However, in September 2010, the statute was amended to require proof of three prior theft convictions before the enhanced penalty would apply. (See former § 666, amended by Stats. 2010, ch. 219, § 15.) In People v. Vinson, supra, 193 Cal.App.4th 1190, it was determined that these changes are to be applied retroactively. (Id. at pp. 1198-1199.) Respondent concedes that because Hayes's conviction under section 666 was not yet final when the amendments to the statute went into effect, she is entitled to the benefit of the amended statute. Because Hayes admitted only one prior petty theft conviction, her sentence must be vacated. However, her probation report reveals four burglary convictions and a previous conviction for petty theft with a prior. Therefore, we will remand for retrial of the prior conviction allegations, so that respondent may have the opportunity to prove the additional prior theft convictions, and for resentencing on count 4. (See People v. Figueroa (1993) 20 Cal.App.4th 65, 72.)
b. Attempted petty theft with a prior
Lastly, Hayes was convicted in count 7 of attempted petty theft with a prior, which is not a crime. (People v. Bean, supra, 213 Cal.App.3d 639.) Therefore, her judgment of conviction on count 7 must be reversed and remanded with directions to enter a new judgment of conviction for attempted petty theft and for resentencing accordingly.
DISPOSITION
The judgment of conviction of Hayes on count 4 is reversed and remanded for retrial of the prior conviction allegations and resentencing, and the judgments of conviction of Hayes on count 7 and of Triplett on count 6 are reversed and remanded with directions to enter new judgments of conviction for attempted petty theft and for resentencing on these counts. In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J. WE CONCUR:
RUBIN, ACTING P. J. FLIER, J.