People v. Moore CA4/1 ( 2015 )


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  • Filed 7/21/15 P. v. Moore CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                                    D066170
    Plaintiff and Respondent,
    v.                                                                    (Super. Ct. No. SCN326538)
    JEFFREY SHERROD MOORE,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County, Robert J.
    Kearney, Judge. Affirmed.
    Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
    Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and
    Respondent.
    INTRODUCTION
    In May 2014 a jury found Jeffrey Sherrod Moore guilty of one count of felony
    burglary (Pen. Code, § 459; count 3),1 two counts of petty theft of retail merchandise
    (§§ 484, 490.5; counts 2 & 4), and one count of receiving stolen property (§ 496,
    subd. (a); count 5). The jury deadlocked on count 1 for felony burglary (§ 459), which
    the People subsequently dismissed. The court sentenced Moore to three years for the first
    count of petty theft (count 2) based on aggravating circumstances; a consecutive one-
    third middle term of eight months for the second count of petty theft (count 4); three
    years for felony burglary (count 3); and three years for receiving stolen property
    (count 5). Pursuant to section 654, subdivision (a), the court stayed Moore's sentence for
    count 3 finding it was the same criminal act as count 4. The court also stayed the
    sentence for count 5.
    Moore presents three issues on appeal.2 First, Moore contends he was actually
    charged and sentenced for petty theft under count 5 rather than receiving stolen property.
    Second, Moore contends counts 2, 4, and 5 constitute a single offense under the doctrine
    of People v. Bailey (1961) 
    55 Cal. 2d 514
    (Bailey). Accordingly, Moore contends the
    court should have consolidated the three counts and he should have received a single
    conviction for theft. Third, Moore argues he received ineffective assistance of counsel at
    1      All further statutory references are to the Penal Code unless otherwise indicated.
    2      Moore also filed a petition for writ of habeas corpus (In re Jeffrey Sherrod Moore
    (D067592)), which we ordered considered with this appeal. We deny the petition by
    separate order. We deny the motion to consolidate the appeal with the petition.
    2
    trial because his trial counsel should have argued for aggregation of his offenses at trial.
    We disagree with these contentions and affirm the judgment.
    FACTUAL BACKGROUND
    Jacob Evans, a store investigations specialist for Toys "R" Us, was assigned to the
    Oceanside store because the company had reports that an individual they were looking
    for had been making weekly visits to the store. Multiple other Toys "R" Us stores in the
    San Diego area reported an African-American male wearing a large jersey who
    repeatedly entered and exited the stores and, when exiting, appeared to have a box-
    shaped bulge under his jersey in the area of his waistband. Evans had seen an individual
    matching the suspect's description in late October 2013. He had photographed the
    suspect and the vehicle the suspect drove.
    On December 8, 2013, Evans observed Moore, the same individual he had seen
    and photographed in late October, enter the store. Moore was wearing a white jersey
    with a blue and black stripe and the number 48 on the back. Evans had seen Moore wear
    a similar jersey on at least two previous occasions at other stores. Evans watched Moore
    enter the store and make his way to the Lego area. Evans saw Moore remove a Willis
    Tower Lego set (Willis Tower set) and a Brandenburg Gate Lego set (Brandenburg Gate
    set) from different shelves on the display unit and carry both sets to the back of the store.
    Once in the back of the store, Moore placed the Brandenburg Gate set on the corner of a
    shelf. He then concealed the Willis Tower set under a tight blue shirt he was wearing
    underneath his jersey. Evans followed Moore and watched Moore make his way past the
    registers and out of the store. Evans did not exit the store himself.
    3
    Several minutes later, Moore reentered the store and Evans again followed him.
    Moore looked at items in several other toy areas before he ended up where he had left the
    Brandenburg Gate set. Moore took the Brandenburg Gate set to the farthest area of the
    store where he concealed it in his waistband underneath his blue shirt and jersey. He then
    exited the store. This time, Evans followed Moore into the store's parking lot where
    Evans saw Moore open the driver's side door of a green Hyundai and lean in. He
    removed an object from his waistband and placed it on the floorboard behind the
    passenger seat.
    Moore entered the store a third time, although Evans lost sight of Moore after
    entering the store himself. Approximately 20 minutes later, Evans saw Moore checking
    out at one of the store's registers. Evans called the police. While on the phone with the
    police, Evans followed Moore out of the store and observed him return to the green
    Hyundai.
    Moore was driving out of the store's parking lot when Oceanside Police Officer
    Scott Garrett, arrived on the scene. Officer Garrett, who had been given a description
    matching Moore, stopped Moore's vehicle and Moore identified himself. Moore was not
    wearing the white jersey at this time. Officer Garrett searched the vehicle and found a
    white jersey bearing the number 48 on the front passenger seat. He discovered a Robie
    House Lego set (Robie House set) with a security device still attached to it underneath
    the white jersey. Garrett also found a Willis Tower set on the front passenger floorboard
    and a Brandenburg Gate set on the vehicle's rear floorboard. Officer Garrett found a
    Toys "R" Us receipt for a purchase Moore made on that date, but it was not for the Willis
    4
    Tower set, the Brandenburg Gate set or the Robie House set. Officer Garrett searched
    Moore and discovered a cell phone, which Moore identified as his own.
    Officer Garrett arrested Moore. An inventory search of Moore upon his arrival at
    the police station revealed he possessed $37 in cash, but he had no wallet, checkbooks, or
    credit cards. When Officer Garrett later conducted a search of Moore's cell phone, he
    discovered Moore sent a text message after being taken to the police station. The
    message read "They got me, Toys-R-Us, don't call."3
    DISCUSSION
    I
    Moore's Conviction for Receiving Stolen Property
    Moore contends his conviction for count 5, receiving stolen property related to the
    Robie House set, was improper because the court "implicitly found" he stole the Robie
    House set in the same instance he stole the Willis Tower set and the Brandenburg Gate
    set. Therefore, because one cannot be convicted of both stealing and receiving stolen
    property, he could not be convicted on a charge of the former crime. The People contend
    Moore's conviction was proper because count 5 concerned receipt of different stolen
    property than that charged as stolen in counts 2 and 4. We agree with the People.
    3      Moore does not allege the search of his cell phone was improper under Riley v.
    California (2014) ___ U.S. ___, ___ [
    134 S. Ct. 2473
    , 
    189 L. Ed. 2d 430
    ] because he
    concedes the search was conducted pursuant to a Fourth Amendment waiver. (See In re
    Curtis T. (1989) 
    214 Cal. App. 3d 1391
    , 1395-1396.)
    5
    A person may not be convicted of both theft and receipt of the same property.
    (§ 496, subd. (a); People v. Ceja (2010) 
    49 Cal. 4th 1
    , 4 (Ceja).) However, this principle
    is inapplicable where, as here, an individual is convicted of theft and receipt of separate
    pieces of property. 
    (Ceja, supra
    , at pp. 4-5 ["The rule against dual convictions was …
    founded on the notion that it is 'logically impossible for a thief who has stolen an item of
    property to buy or receive that property from himself.' "].) (Italics added.) Therefore,
    regardless of whether Moore actually stole the Robie House set, he may be charged with
    and convicted for receiving that stolen property independently of any charges or
    convictions relating to theft of the Willis Tower set and the Brandenburg Gate set.
    (§ 496, subd. (a); see Gov. Code, § 26501; Ceja, at p. 7 ["[T]he prosecutor has the
    discretion to decide which offenses to charge. The courts do not generally supervise
    these 'purely prosecutorial function[s].' "].) Accordingly, we affirm Moore's conviction
    under count 5.
    II
    Moore's Conviction for Multiple Counts of Petty Theft
    Moore also argues the court failed to consolidate the multiple counts of petty theft
    against him into a single count for the same offense. Moore contends he may only be
    convicted of one offense under 
    Bailey, supra
    , 
    55 Cal. 2d 514
    , because he stole the Willis
    Tower set and the Brandenburg Gate set pursuant to a "single intention," and because
    removing both sets from their respective shelf spaces simultaneously constituted a single
    act of theft. The People contend Bailey is inapplicable. We agree with the People.
    6
    "A criminal defendant cannot be punished more than once for the same criminal
    act or for a series of criminal acts committed 'incident to one objective.' ([Citation]; see
    § 654.) However, as a general matter, a criminal defendant can suffer multiple
    convictions for a single criminal act or series of related criminal acts. (§ 954 ['The
    prosecution is not required to elect between … different offenses or counts set forth in the
    accusatory pleading, [and] the defendant may be convicted of any number of the offenses
    charged.'].)" (People v. Kirvin (2014) 
    231 Cal. App. 4th 1507
    , 1517.)
    The Supreme Court in Bailey created an exception to this general rule. In Bailey,
    the defendant committed a single misrepresentation resulting in the continued receipt of
    welfare payments, each individual payment amounting to petty theft but collectively
    amounting to grand theft. (
    Bailey, supra
    , 55 Cal.2d at pp. 515-516, 518, fn. 3.) Aside
    from this single misrepresentation and omitting to correct it, the defendant committed no
    other criminal acts. Because the evidence supported a jury finding the defendant acted
    pursuant to an initial design to continue receiving the payments until they exceeded the
    requisite amount for grand theft, the Supreme Court concluded the defendant had not
    committed "separate and distinct" offenses of petty theft, but rather a single act of grand
    theft "pursuant to one intention, one general impulse, and one plan." (Id. at p. 519.) In so
    holding, the Bailey court distinguished the facts before it from earlier cases upholding
    multiple convictions of grand theft involving separate and distinct acts of theft despite
    their similarities. (Ibid.)
    A number of Court of Appeal decisions subsequently interpreted 
    Bailey, supra
    , 
    55 Cal. 2d 514
    to shield defendants from multiple convictions for committing multiple acts
    7
    of grand theft pursuant to a singular criminal intention. (See generally People v.
    Kronemyer (1987) 
    189 Cal. App. 3d 314
    , 363-364; People v. Brooks (1985) 
    166 Cal. App. 3d 24
    , 30-31; People v. Packard (1982) 
    131 Cal. App. 3d 622
    , 626; People v.
    Richardson (1978) 
    83 Cal. App. 3d 853
    , 866.) However, the Supreme Court recently
    rejected this expansion of Bailey and recognized defendants may be convicted of multiple
    counts of theft where they commit separate and distinct acts of the offense, even if
    "pursuant to a single overarching scheme." (People v. Whitmer (2014) 
    59 Cal. 4th 733
    ,
    741 (Whitmer).) Thus, Bailey only applies where a defendant commits a single act of
    theft.4
    We review the judgment for substantial evidence. "The Bailey doctrine applies as
    a matter of law only in the absence of any evidence from which the jury could have
    reasonably inferred that the defendant acted pursuant to more than one intention, one
    general impulse, or one plan." (People v. Jaska (2011) 
    194 Cal. App. 4th 971
    , 984.)
    Turning to the case at hand, we conclude there was substantial evidence to support
    Moore's conviction of multiple counts of petty theft. Moore removed each set from
    separate shelf space and placed the items in a secluded area of the store. He placed the
    4       As a general rule, a decision of a court overruling prior decisions is given full
    retroactive effect unless the appellate court determines retroactive application should be
    restricted on grounds of equity and public policy. (Johnson v. Department of Justice
    (2015) 
    60 Cal. 4th 871
    , 888.) The Whitmer court did not retroactively apply its holding to
    the defendant in that case because it would have been "an unforeseeable judicial
    enlargement of criminal liability for multiple grand thefts." 
    (Whitmer, supra
    , 59 Cal.4th
    at p. 742.) Application of Whitmer to this case is not similarly barred on grounds of
    equity and public policy because, as Moore admits, there are no cases applying the Bailey
    doctrine to aggregate multiple convictions of petty theft into one conviction of petty theft.
    8
    Willis Tower set under his jersey and removed it from the store. Upon his return to the
    store, Moore walked around and stopped to look at other items in the store before he went
    back to where he placed the Brandenburg Gate set. He then concealed and removed the
    Brandenburg Gate set. In sentencing Moore to consecutive terms for counts 4 (theft of
    the Brandenburg Gate set) and 2 (theft of the Willis Tower set), the trial court concluded
    there were two crimes. "[Moore] left the store, came back[,] and committed a second
    theft."
    People v. Shannon (1998) 
    66 Cal. App. 4th 649
    , 654 (Shannon) held a defendant
    need not remove an item of property from a store to be liable for theft of that property.
    However, Shannon does not compel the conclusion Moore's independent acts of theft in
    this case should be viewed as a singular act. In Shannon, the defendant placed multiple
    items into a shopping bag and took them collectively to a clerk where he asked to
    exchange them for a cash refund. (Id. at pp. 652-653, 656.) The issue in Shannon did not
    involve the number of thefts committed, but rather at what point in time theft occurred
    since the defendant never actually left the store with the items. (Id. at p. 653.). The
    evidence in Shannon indicated the defendant committed a single act of theft by
    transporting and offering the bag of items to the cashier for a return. In contrast, Moore
    concealed and removed each item from the store separately. The fact he simultaneously
    moved two items within the store does not prevent conviction for the distinct crimes he
    committed. Therefore, because substantial evidence supports the conviction for two
    distinct and separate acts of petty theft, we conclude 
    Bailey, supra
    , 
    55 Cal. 2d 514
    is
    inapplicable.
    9
    Accordingly, we affirm Moore's conviction and sentencing under counts 2 and 4.
    Given our conclusions, Moore cannot establish his trial counsel provided ineffective
    assistance of counsel or that any deficiency in his counsel's failure to move for acquittal
    or request an aggregation instruction caused him prejudice. (People v. Carrasco (2014)
    
    59 Cal. 4th 924
    , 982.)
    DISPOSITION
    The judgment is affirmed.
    MCCONNELL, P. J.
    WE CONCUR:
    HUFFMAN, J.
    IRION, J.
    10
    

Document Info

Docket Number: D066170

Filed Date: 7/21/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021