People v. Strickland CA2/5 ( 2014 )

Filed 11/20/14 P. v. Strickland CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B254195
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA096686)
v.
LEROY STRICKLAND,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Richard R. Romero, Judge. Affirmed.
Hancock & Spears, Alan E. Spears for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Chung L. Mar and Idan Ivri, Deputy Attorneys General for Plaintiff and
Respondent.
_______________
Appellant Leroy Strickland was convicted, following a jury trial, of one count of
second degree burglary in violation of Penal Code section 459. The trial court sentenced
appellant to the low term of 16 months in county jail.
Appellant appeals from the judgment of conviction, contending there is
insufficient evidence to support his conviction. We affirm the judgment of conviction.
FACTS
At about 4:30 p.m. on August 27, 2013, asset protection associates at a Wal-Mart
store in Torrance were watching customers on the store’s surveillance system. Kevin
Merritt saw appellant and considered his actions suspicious. Merritt watched appellant
enter the electronics department with empty hands, crouch down in the cell phone
accessory area, then stand up and leave the department carrying two pieces of
merchandise. Merritt identified the items as a cell phone case and a “Passport” hard drive
device.
Appellant went to the sporting goods department with the merchandise in his
hands. There, he opened the packaging on the items, then placed the empty packaging on
a shelf. Merritt testified that he saw appellant conceal the case and “Passport” on his
person. Video of appellant showed him leaving the department with nothing in his hands.
Appellant went to the front of the store, walked past the cash registers without
stopping and left the store. He was approached by Edgar Luna and Nicholas Faustino,
who were Wal-Mart asset protection associates. They asked appellant to come back into
the store. He agreed. As they all walked toward the office, appellant turned around and
tried to push past the associates toward the exit. Appellant said he needed to go to his
car. Luna told appellant he needed to go to the office first. Appellant continued to try to
push past the associates. Luna and Faustino, joined by Merritt, forcibly moved appellant
into the office.
Once inside the office, appellant was cooperative. Merritt and Luna stated that
appellant took a “Passport” device and cell phone case from his pocket and placed them
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on the table.1 Appellant also had a mobile hot spot device. According to the associates,
the “Passport” device and the case looked brand new and matched the packaging
recovered by Faustino from the sporting goods department. Faustino scanned the bar
codes, and Wal-Mart’s computer system showed each item’s description and price. The
items were then put in a bin to be sorted out by a claims associate and eventually either
sold to a customer or sent back to the manufacturer. They were not retained as evidence.
The mobile hot spot device was returned to appellant.
Los Angeles Police Department Officer Thomas Vago came to Wal-Mart and took
appellant into custody. Officer Vago searched appellant and found $193 in his pocket.
Appellant testified in his own defense at trial. He is an attorney who practices in
Florida, Pennsylvania, Ohio and New York. On August 26, 2013, he arrived in
California to represent Mohammed Mouchtachar in an immigration matter. He planned
to stay at Mouchtachar’s home. Mouchtachar did not have internet service at his home
and so appellant used his mobile hot spot device. On August 27, appellant went shopping
for a case for his hot spot. After checking several stores unsuccessfully, appellant went
to Wal-Mart. When he entered the store, he had his hot spot, a cell phone and a hard
drive case on his person.
Inside Wal-Mart, appellant went to the electronics department to look for a case.
He saw a hard drive which was on sale for a good price, and picked it up. He wanted to
buy the hard drive, but only if its charging cable was compatible with his hot spot device.
Appellant went to the sporting goods department to look for a sleeping bag to use
at Mouchtachar’s house. Appellant was in a hurry at that point, and decided to open the
hard drive package to test the compatibility of the cable. The cable did not fit his hot
spot, so he decided not to buy it. He put the packaging and hard drive on a shelf. He
believed the cable might have fallen on the floor. Before leaving the department, he
looked for a sleeping bag but did not see one.
1
Faustino testified that the “Passport” device fell out of appellant’s pocket during
the struggle outside the office.
3
Appellant left the store and was stopped by men he assumed were with store
security. They asked him to come back inside the store. Appellant agreed. The men
wanted him to go into a room, but appellant refused because he did not trust them. He
told them to search him outside. He said he would go into the office if he could first tell
Mouchtachar what was happening.
One of the men pushed appellant and threatened to call the police. Appellant went
with the men into a room. Inside the room, a hard drive case, a hot spot device and a
wallet were removed from appellant’s possession and placed on a table. Eventually,
appellant was able to call Mouchtachar, who came inside the store. An officer gave
Mouchtachar a bag containing appellant’s wallet, hot spot device and a few other
personal items.
DISCUSSION
Appellant contends there is no substantial evidence that any property found on his
person after he left the Wal-Mart store belonged to Wal-Mart, and so there is insufficient
evidence to support his conviction for burglary.
“In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance allegations.
[Citation.] [I]f the circumstances reasonably justify the jury’s findings, the judgment
may not be reversed simply because the circumstances might also reasonably be
reconciled with a contrary finding. [Citation.] We do not reweigh evidence or reevaluate
a witness’s credibility. [Citations.]” (People v. Nelson (2011) 51 Cal.4th 198, 210
[internal quotation marks omitted].)
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“Every person who enters any . . . store . . . with intent to commit grand or petit
larceny or any felony is guilty of burglary.” (Pen. Code, § 459.) In order to be convicted
of the offense of burglary, there must be evidence that the defendant intended to commit
theft or another felony at the time of entry. (People v. Holt (1997) 15 Cal.4th 619, 668.)2
The existence of the requisite intent is rarely shown by direct evidence, but may be
inferred from the factual circumstances. (Ibid.)
Appellant correctly contends there is no independent evidence that he entered the
store with the intent to commit theft. Appellant agrees such intent could properly be
inferred from the actual commission of a theft, but contends there is no evidence that he
took any Wal-Mart property.
There is more than sufficient evidence to show that appellant was in possession of
a “Passport” device and cell phone cover belonging to Wal-Mart when he left the store,
and that he did not pay for those items. As described in more detail in the facts section of
this opinion, Merritt testified that he observed appellant pick up Wal-Mart merchandise,
unwrap it and put it in his pocket. The jury saw a recording of the videos Merritt
watched. Appellant left the store. When he returned to the store at the request of asset
protection associates Luna and Faustino, a cell phone case and a “Passport” device were
in his pockets. These two items appeared brand new and matched the empty packaging
that had been retrieved from the sporting goods department. Faustino confirmed that the
bar codes on the packaging were in Wal-Mart’s computer system.
Appellant contends this evidence is not substantial evidence because Wal-Mart did
not produce the allegedly stolen items at trial and there is no proof that those items came
from the open packages; Merritt described the device taken from appellant as both a
“Passport” and a “hot spot” and Wal-Mart conceded it had no proof that the hot spot
2
A defendant is still guilty of burglary if he enters with the intent to commit one
felony, but ultimately commits a different felony. (People v. Montoya (1994) 7 Cal.4th
1027, 1041-1042.)
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belonged to Wal-Mart; Merritt testified that appellant concealed the items in his pockets,
but the video does not show appellant putting any items in his pockets; different Wal-
Mart employees gave different testimony about when and where the hard drive and
empty packaging were recovered.
There is no requirement that either the prosecution or the victim in a theft case
produce any recovered stolen property at trial. The jury was free to question the accuracy
and credibility of the employees’ testimony in the absence of the property, but was not
required to do so. That testimony, if believed, supports a reasonable inference that the
“Passport” device and cell phone cover found in appellant’s possession came from the
empty packaging which appellant was seen placing on a shelf in the sporting goods
section. Even if there were other reasonable inferences which could be drawn from the
evidence, that circumstance would not require reversal of the judgment. (People v.
Nelson, supra, 51 Cal.4th at p. 210 [“if the circumstances reasonably justify the jury’s
findings, the judgment may not be reversed simply because the circumstances might also
reasonably be reconciled with a contrary finding”].)
To the extent appellant suggests Merritt mistook appellant’s hot spot device for the
“Passport” device and appellant did not actually have a “Passport” in his possession, we
do not agree. Merritt may have had difficulty telling the two devices apart but all Wal-
Mart employees testified that they kept the “Passport” and returned the hot spot to
appellant (or his friend), demonstrating that there were two separate, albeit similar,
devices.
Appellant is correct that there are inconsistencies in the employees’ testimony and
between that testimony and some aspects of the videos of appellant’s activity. “Conflicts
and even testimony which is subject to justifiable suspicion do not justify the reversal of
a judgment, for it is the exclusive province of the trial judge or jury to determine the
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credibility of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MINK, J.*
We concur:
MOSK, Acting P. J.
KRIEGLER, J.
*
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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