P. v. Eivaz

Filed 10/28/08 P. v. Eivaz CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara, Judge.

Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Daniel Eivaz and his brother were detained in a Costco store as employees watched them slash open packages, remove the contents, and discard the empty packages throughout the store. Appellant was convicted of count I, second degree burglary (Pen. Code,^[1] 459), count II, conspiracy to commit theft with seven overt acts ( 182, subd. (a)(1), 484) and count III, petty theft with a prior theft-related conviction ( 666, 484), and he pleaded no contest to count V, misdemeanor possession of a tear gas weapon ( 12403.7, subd. (a)), and received the second strike term of four years. On appeal, he contends there is insufficient evidence of the specific intent required for counts I, II and III, that the prosecution improperly admitted evidence of his silence after he was detained by store employees, and the court should have granted his request for instructions on attempted theft as lesser included offenses of counts I, II and III. We will affirm.

FACTS

On April 28, 2004, William Villalobos and Mark Fife were on duty as undercover loss prevention officers at the Costco store in Merced. Around 5:00 p.m., Villalobos was in the center of the store and walking toward the front. Appellant was also in the center of the store, and Villalobos noticed appellant because he was walking away from me, and he was making a cutting motion into a clam pack, the plastic packaging used for the small SanDisk memory card. The price of each memory card is $64.99. It is a high-theft item, and the clam pack consists of two layers of plastic packaging designed to make thefts difficult. A person has to cut through larger and smaller packages to remove the memory card from the clam pack.

In the meantime, Mark Fife was in an aisle and saw appellants brother, Naram Eivaz (Naram), walk toward him at a regular pace. Naram held a SanDisk package, looked over his shoulder, and did a cutting motion. Naram paced up and down the aisle, dropped the package at the end of the aisle, and walked around the corner. Fife believed Naram had stolen something and dumped the empty package, so Fife followed him to the front of the building and called for help.

Villalobos was still watching appellant when he received Fifes call for help about Naram. Villalobos advised Fife that he had a suspect down this aisle cutting into a package, but Fife requested his immediate assistance at the front of the store because of Narams conduct. Villalobos headed to the front of the store to help Fife and lost sight of appellant, who was walking down the aisle. Villalobos decided not to approach appellant, even though he saw the cutting motion, because he was concerned about his safety and the possibility of violence.

Villalobos consulted with Fife and then resumed his surveillance of appellant, who had walked to the center of the store and was standing with Naram. Villalobos saw Naram make a cutting motion into a clam pack. Villalobos testified that Naram dumped the empty clam pack behind a product display and walked up the stores center aisle.

Villalobos testified he lost sight of Naram. Villalobos walked around the store to look for him, and found Naram and appellant standing and talking together next to the display for Game Boy Advanced. Fife also saw appellant and Naram talking at the Game Boy display. Appellant and Naram each picked up a Game Boy package and walked away. Appellant held onto his package and kept walking. Naram cut open his package, removed the Game Boy from the container, placed it in his pants, and discarded the container. Naram headed toward the exit door.

Villalobos alerted another store employee to join in the surveillance. Appellant still held the Game Boy and kept walking, but noticed the employee was watching him. Appellant and Naram ran toward the stores front doors. Appellant left his Game Boy package on a display table, pulled out a cell phone, and placed it to his ear. He held a gray canister in his other hand.

Naram left the store and was approached by Fife and store employees. Naram was holding a tear gas canister and sprayed it on Fife and the other employees, but he was still detained. Naram dropped the Game Boy during the pursuit, and a SanDisk card was found in his possession. Naram had a Costco membership card with his name and photograph.

Appellant walked out of the store and he was detained by Villalobos and Kevin Hampton, the stores assistant general manager. When he was detained, appellant was holding a tear gas canister in his left hand but did not use it. He did not have any Costco merchandise in his possession.

Villalobos and Hampton escorted appellant into the stores security office. Hampton testified he asked appellant for his identification: I sat him down. I asked him if he had any ID on him. He wouldnt answer nothing, he wouldnt say anything --^[2] Hampton cleared off the top of the desk, which had contained various items, possibly including counterfeit bills from another case.^[3] Villalobos directed appellant to place his possessions on top of the desk. Appellant put the cell phone and the tear gas canister on the desk. Villalobos did not ask appellant to empty his pockets. Hampton testified appellant did not place any cash on the desk.

After appellant was detained, Villalobos walked through the store and found two SanDisk memory cards which had been removed from their clam packs. The memory cards were in an aisle along appellants route as he headed out of the store. The stores employees found four empty SanDisk clam packs in the areas where appellant and Naram walked through the store. An empty clam pack for a mini Cruzer was also found in the store. The employees also found a Game Boy which had been removed from the package, and an empty Game Boy package.

At trial, Villalobos testified about the stores surveillance videotapes, which showed appellant and Naram entered the store together at 5:06 p.m.^[4] The videotape showed Naram holding a clam pack, leaning back by a display, walking down an aisle without anything in his hands, and heading to the back of the store. The videotape showed appellant at the point where Villalobos made his initial observations of him holding a clam pack in his hand. The videotape showed appellant walk toward the bulk package display wall, remove an object from the clam pack, and place it in his pocket. He headed to the center of the store and was no longer holding a clam pack.

Officer Cruz Jasso arrived at the store and found Naram being held in the parking lot, while appellant was detained inside the stores office. Officer Jasso searched appellant and found a knife and a set of magnets, which had been taped together. Jasso noticed a cell phone and can of pepper spray had been placed on top of the desk, but left these items in the room and did not take them into evidence. Jasso did not find any cash, credit cards, or identification on appellant.

Officer Bernard Dalia arrived at Costco and took appellant and Naram into custody. He searched them by his patrol car and did not find any cash on them. He transported them to the jail, then returned to Costco and took custody of the evidence seized from the suspects at the store, including the magnets, knife, cell phone and two cans of pepper spray.

Sergeant Barbara Carbonaro testified the jails records indicated that appellant identified himself as Dan Boleniu when he was booked, and the parties stipulated that was another legal name used by appellant. The jails records indicated that appellant was booked and searched at 6:37 p.m. on April 28, 2004, and he did not have any money or credit cards.

Correctional Officer Denise OBryant testified she was working at the jail when appellant arrived between 6:30 p.m. and 7:00 p.m. He was booked wearing an orange shirt, patted down and searched, and placed in a holding cell. OBryant testified that he would not have been placed in the holding cell if he had been in possession of cash or drugs, but such items may slip into the jail until the officers conduct strip searches. Appellant was in the holding cell with another inmate, Jorge. OBryant testified that something unusual happened when appellant and Jorge went into the back of the cell and exchanged clothes. Jorge had been wearing a torn black T-shirt and gave it to appellant. OBryant could not see them from the waist down and she did not know if they exchanged other clothing. Officer OBryant determined they switched clothes to cause confusion.

Sergeant Carbonaro testified that at 8:52 p.m. the jails records showed that $310 in cash had been added to appellants books at the jail. Sergeant Carbonaro testified the jail did not accept money from relatives to place on an inmates books. Instead, the money could have been added either because it was found on appellant when he was arrested and searched, in the patrol car that transported him, or in his clothes when he was processed into the jail. On April 29, 2004, appellant posted bail and was released, and the jail issued a check to Dan Boleni[u] for $310.

Defense evidence

Appellant did not testify. Officer Donnalee Hartman testified about the proper way to collect evidence at a crime scene.

Clifford Hazeltine, the defense investigator, testified that he interviewed Kevin Hampton prior to the judicial proceedings in this case. Hampton said that when appellant was brought into the stores office and seated at the desk, there was no cash on the desk. Hazeltine did not ask if there was any counterfeit money on the desk.

Appellant was convicted of count I, second degree burglary (Pen. Code,  459); count II, conspiracy to commit theft with seven overt acts ( 182, subd. (a)(1), 484); and count III, petty theft with a prior theft-related conviction ( 666, 484), and he pleaded no contest to count V, misdemeanor possession of a tear gas weapon ( 12403.7, subd. (a)).^[5] He filed a timely notice of appeal, and contends there is insufficient evidence to support the specific intent elements of counts I, II and III, that he entered the store with the intent to steal or specifically intended to steal property. He also contends the court improperly permitted the prosecution to introduce evidence that he was silent and refused to answer questions after he was detained by Costco employees. Finally, he asserts the court had a sua sponte duty to instruct on attempt offenses as lesser included offenses of counts I, II and III.

DISCUSSION

I. Substantial evidence for counts I, II, and III

Appellant contends his convictions in count I for second degree burglary, count II for conspiracy to commit theft, and count III for petty theft with a prior theft-related conviction must be reversed for insufficient evidence of the specific intent elements of the offenses -- namely, that he entered the store with the specific intent to steal and permanently deprive the owner of possession of merchandise. Appellant points to the conflicting evidence as to whether he possessed any money, and the absence of any stolen merchandise on his person when he was detained, and argues that his conduct was also consistent with entry into the store with the intent to look for items but that he changed his mind.

On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] [Citation.] Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. [Citations.] (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)

Appellant contends there is insufficient evidence of the specific intent elements to support his convictions for burglary, conspiracy and theft. We thus begin with the requisite elements of the offenses, with the acknowledgment that a defendants specific intent to commit a crime may be inferred from all of the facts and circumstances disclosed by the evidence. (People v. Guerra (2006) 37 Cal.4th 1067, 1130.) Burglary requires an entry into a specified structure with the intent to commit theft or any felony. ( 459; People v. Tafoya (2007) 42 Cal.4th 147, 170-171.) At the time of entry, the person must have the specific intent to steal and take away someone elses property, and intend to deprive the owner permanently of that property. (People v. Ringo (2005) 134 Cal.App.4th 870, 880.) One who enters a room or building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public. [Citation.] (People v. Horning (2004) 34 Cal.4th 871, 903-904.)

The offense of theft is the unlawful taking of anothers property, and includes larceny. ( 484; People v. Creath (1995) 31 Cal.App.4th 312, 318; People v. Shannon (1998) 66 Cal.App.4th 649, 654.)

The completed crime of larceny -- as distinguished from an attempt -- requires asportation or carrying away, in addition to the taking. [Citations omitted.] [Citation.] The element of asportation is not satisfied unless it is shown that the goods were severed from the possession or custody of the owner, and in the possession of the thief, though it be but for a moment. [Citation.] (People v. Khoury (1980) 108 Cal.App.3d Supp. 1, 4.)

One need not remove property from the store to be convicted of theft of property from the store, but need only take possession of the property, detaching it from the store shelves or other location, and move it slightly with the intent to deprive the owner of it permanently. (People v. Shannon, supra, 66 Cal.App.4th 649, 654.) At the time of the taking, the defendant must have the specific intent to permanently deprive the owner of the property, or deprive an owner temporarily but for an unreasonable time of a major portion of its value or enjoyment. (In re Jesus O. (2007) 40 Cal.4th 859, 867; People v. Parson (2008) 44 Cal.4th 332, 353.) An intent to temporarily deprive the owner of possession may suffice when the defendant intends to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment. (People v. MacArthur (2006) 142 Cal.App.4th 275, 280.)

The offense of conspiracy, which is distinct from its target offense, occurs when two or more persons have the specific intent to agree to commit any crime, as well as the specific intent to commit the elements of the target crime and one or more of the parties commits an overt act in furtherance of the agreement. The act of one conspirator is the act of all. Each is responsible for everything done by his coconspirators, including those things that follow as the probable and natural consequence of the execution of the conspiracy. (People v. Zacarias (2007) 157 Cal.App.4th 652, 657.) Thus, a conspiracy requires dual specific intents: a specific intent to agree to commit the target offense, and a specific intent to commit that offense. (People v. Williams (2008) 161 Cal.App.4th 705, 710.)

Appellant asserts there is insufficient evidence of specific intent for all three offenses because of the conflicting evidence as to whether appellant possessed any money when he was detained and subsequently booked into jail. As noted ante, the Costco employees and law enforcement officers testified they did not find any money on appellant when he was detained at the store, and transported and booked at the jail. Kevin Hampton, the stores assistant general manager, admitted there were counterfeit bills on the desk in the stores office where appellant was initially detained, and that he failed to mention this fact when he testified at previous court proceedings. However, Hampton insisted that he pushed those bills out of the way when appellant was seated at the desk. The evidence further showed that $310 was placed on appellants books at the jail just a few hours after he was booked. There was also evidence, however, that appellant and another inmate exchanged clothes in the holding cell shortly before the money was placed on appellants books in the jail.

Despite the conflicting evidence of appellants possible possession of money when he was taken into custody, the entirety of the record contains substantial evidence of the requisite specific intent as to counts I, II and III. As to theft, appellants conduct in slashing open the clam packs, removing the contents and dumping the empty packages as he walked through the store establishes his specific intent at the time of the taking to permanently deprive the owner of the property. While he subsequently discarded the memory cards in the store and did not walk out with them, he had already completed the offense through his actions of removing the memory cards from the theft-resistant packaging and walking through the store to select additional clam packs for tampering.

As for conspiracy, appellant and Naram entered the store together, they were in possession of tear gas canisters, appellant had a knife, and they maintained contact with each other as they walked through the store and removed the merchandise from the packages. They met and talked at the Game Boy display and they each removed a package. Naram successfully removed the Game Boy from the package, hid it in his pants and left the store with the unpaid item, whereas appellant left the items in the store as he apparently realized he was being watched.

Finally, there is strong circumstantial evidence of the specific intent required for burglary -- that appellant had the specific intent to steal and take away another persons property when he entered the store, and intended to deprive the owner permanently of that property. Appellant and Naram entered the store together. Appellant possessed the knife and tear gas canister. Even if he had cash in his pockets, he methodically walked through the aisles, slashed open the SanDisk clam packs, dumped the empty packaging materials and moved on to other merchandise. His conduct was not consistent with selecting merchandise and changing his mind as to whether he was going to purchase or steal it. As he tried to exit, he realized he was being followed by store employees, dumped the Game Boy and the memory cards, and pulled out the tear gas canister but, unlike his brother, he did not spray it at the employees when he was detained. Appellants convictions are supported by substantial evidence of specific intent.

II. Admission of Hamptons testimony

As set forth ante, appellant was detained by Costco employees and escorted to the stores office. Kevin Hampton, the stores assistant general manager, testified that he asked appellant for his identification, but appellant did not respond or say anything. Appellant contends such evidence violated the trial courts decision to exclude any evidence of his postdetention silence, violated his Fifth Amendment rights and requires reversal of his convictions.

A. Background

Prior to trial, defense counsel moved to exclude any reference to appellants silence after he was detained at the store, and to prevent the prosecution from arguing that appellant would have said something if he had any money and intended to pay for the items. Counsel argued appellant was detained and not free to leave, and his silence was protected by Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and the Fifth Amendment. The court decided that appellants silence after he was detained by store employees was inadmissible under Griffin v. California (1965) 380 U.S. 609 (Griffin) and Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).

At trial, Hampton testified appellant was detained and escorted into an office.

[THE PROSECUTOR]. Now, when you got into that office, what did you do?

A. I sat him down. I asked him if he had any ID on him. He wouldnt answer nothing, he wouldnt say anything --

Defense counsel objected to Hamptons testimony, argued that it violated Griffin, Doyle, and the courts prior ruling, and requested the court to strike that testimony and instruct the jury accordingly. The court noted that it had excluded such evidence, and asked the prosecutor to speak to Hampton before he returned to the stand. Defense counsel stated he did not want any other witness to mention appellants silence. The court did not strike the testimony.

B. Analysis

Appellant contends Hamptons testimony about his silence, in response to his request for identification, violated both Griffin and Doyle because appellant was in custody and had the right to remain silent even though he had not been advised of the Miranda warnings. Our review of federal and state authorities refutes this argument.

Griffin held that a defendants choice not to testify at trial and remain silent cannot be used against the accused either by the prosecutor in closing argument, or the court in jury instructions. (Griffin, supra, 380 U.S. at p. 614 & fn. 5.) Doyle excluded a defendants post-Miranda silence because it would be fundamentally unfair and a deprivation of due process to allow the arrested persons silence to be used to impeach an explanation subsequently offered at trial. (Doyle, supra, 426 U.S. at pp. 617-618.)

Thus, once an accused has been given the Miranda warnings, his or her post-Miranda silence may not be used for impeachment purposes if he or she testifies at trial. (Doyle, supra, 426 U.S. at pp. 619-620; People v. OSullivan (1990) 217 Cal.App.3d 237, 244; People v. Medina (1990) 51 Cal.3d 870, 890.) However, a defendants pre-Miranda silence, either before or after his or her arrest, is admissible to impeach the accuseds trial testimony. (Fletcher v. Weir (1982) 455 U.S. 603, 607; Jenkins v. Anderson (1980) 447 U.S. 231, 238, People v. Earp (1999) 20 Cal.4th 826, 856-857; People v. Delgado (1992) 10 Cal.App.4th 1837, 1842.)

Neither the United States nor California Supreme Courts have addressed the issue raised by appellant -- whether a defendants pre-Miranda silence, either before or after arrest, can be used as substantive evidence of guilt in the prosecutions case-in-chief if the defendant does not testify at trial. The federal circuits have addressed these issues and reached different conclusions.^[6] We need not address these issues, however, given the particular facts and circumstances of this case.

Appellant asserts Hamptons testimony about his silence in the stores office, when asked for his identification, violated Griffin and Doyle. There are several problems with this assertion. Respondent acknowledges that appellant was detained by store personnel when Hampton asked for his identification. (See, e.g., Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716;  490.5, subd. (f)(1).)

However, it is undisputed that Hampton merely asked appellant for his identification and did not conduct any type of interrogation. The nature of Hamptons inquiry requires an examination as to whether appellant was even subject to custodial interrogation. In People v. Hall (1988) 199 Cal.App.3d 914 (Hall), the court upheld the admission of evidence of the defendants refusal to answer an arresting officers questions, prior to Miranda advisements, as to the defendants identity. Hall held that questions concerning the defendants identity did not constitute interrogation:

In Rhode Island v. Innis (1980) 446 U.S. 291 , the United States Supreme Court concluded that the definition of [the word] interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. [Citation.] The courts specific exclusion of words and actions normally attendant to arrest and custody from the definition of interrogation suggests that routine booking inquiries are outside the scope of interrogation. [Citation.] Innis thus reinforces the proposition that [d]espite the breadth of the language used in Miranda, the Supreme Court was concerned with protecting the suspect against interrogation of an investigative nature rather than the obtaining of basic identifying data required for booking and arraignment. (Hall, supra, 199 Cal.App.3d at p. 921.)

In People v. Farnam (2002) 28 Cal.4th 107, the court held that questions aimed at identifying a suspect do not constitute interrogation because they are not reasonably likely to invoke an incriminating response. While the term interrogation refers to any words or actions on the part of police that are reasonably likely to elicit an incriminating response, it does not extend to inquires that are essentially limited to the purpose of identifying a person found under suspicious circumstances or near the scene of a recent crime[.] (Id. at p. 180.)

Thus, even if Hampton was considered a law enforcement officer and appellant was under arrest, Hamptons request for appellants identification did not constitute an interrogation within the meaning of Miranda, Innis, and the Fifth Amendment. Therefore, the admission of appellants failure to respond to that inquiry did not violate Griffinor Doyle.

Moreover, even if we assume that Hamptons testimony about appellants silence was improperly introduced as substantive evidence in the prosecutions case-in-chief, the admission of such evidence was harmless beyond a reasonable doubt pursuant to Chapman v. California (1967) 386 U.S. 18, 24, which is the applicable standard in cases of Griffin and Doyle error. (U.S. v. Kallin (9th Cir.1995) 50 F.3d 689, 693; People v. Earp, supra, 20 Cal.4th 826, 858; People v. Hovey, supra, 44 Cal.3d at p. 572.) The entirety of the prosecutions case focused upon the eyewitness and videotape evidence of the activities of appellant and his brother as they walked through the store, slashed open clam packs, removed the contents, discarded the empty packaging, and tried to make their escapes. Hamptons very brief testimony simply established that appellant was detained, asked for his identification, and did not respond to that inquiry, an issue that was not highly relevant given the entirety of the record. Hampton did not ask appellant any other questions or attempt to elicit any other information from him, such as what he was doing in the store, why he opened the clam packs and removed the contents, or why he did not try to pay for the merchandise. Thus, the admission of Hamptons testimony was necessarily harmless beyond a reasonable doubt.

III. Lesser included offenses.

Appellant contends the court improperly denied his request for instructions on lesser included offenses. He argues the court should have instructed on attempted theft as a lesser included offense of petty theft with a prior, and as lesser included offenses underlying the charges of burglary and conspiracy, since appellant did not leave the store with any property.

Even without a request, a trial court must instruct on general principles of law that are closely connected to the facts before the court and that are necessary for the jurys understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. [Citations.] Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. [Citation.] (People v. Lewis (2001) 25 Cal.4th 610, 645.) However, the court need not instruct on a lesser offense when there is no evidence the offense was less than that charged. (People v. Barton (1995) 12 Cal.4th 186, 194-195.)

As explained ante, the offense of theft is the unlawful taking of anothers property, and includes larceny. ( 484; People v. Creath, supra, 31 Cal.App.4th 312, 318; People v. Shannon, supra, 66 Cal.App.4th 649, 654.) The completed crime of larceny -- as distinguished from an attempt -- requires asportation or carrying away, in addition to the taking. [Citations omitted.] [Citation.] The element of asportation is not satisfied unless it is shown that the goods were severed from the possession or custody of the owner, and in the possession of the thief, though it be but for a moment. [Citation.] (People v. Khoury, supra, 108 Cal.App.3d Supp. at p. 4.) One need not remove property from the store to be convicted of theft of property from the store, but need only take possession of the property, detaching it from the store shelves or other location, and move it slightly with the intent to deprive the owner of it permanently. (People v. Shannon, supra, 66 Cal.App.4th 649, 654.) At the time of the taking, the defendant must have the specific intent to permanently deprive the owner of the property, or deprive an owner temporarily but for an unreasonable time of a major portion of its value or enjoyment. (In re Jesus O., supra, 40 Cal.4th 859, 867; People v. Parson, supra, 44 Cal.4th 332, 353.) An intent to temporarily deprive the owner of possession may suffice when the defendant intends to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment. (People v. MacArthur, supra, 142 Cal.App.4th 275, 280.)

In the instant case, appellant requested instructions on attempted theft as lesser included offense of counts I, II and III. The court denied the instructional request because it found that if there was no evidence of asportation, appellant would not be guilty of theft. Appellant concedes there was some evidence that he might have been walking around the store with the memory cards removed from packaging, but he argues that Villaloboss testimony was impeached by his prior inconsistent statements and there were merely inferences from the videotapes that he walked around the store with the items removed from packaging.

The trial court herein properly rejected appellants request for instructions on attempted theft as a lesser included offense because there was no substantial evidence from which the jury could have ascertained that appellant committed attempted theft instead of theft. The evidence showed that appellant entered the store with a knife and a tear gas canister, he methodically walked through the store and slashed open clam packs, he removed the contents and dumped the empty packages throughout the store, and he discarded the merchandise when he realized he was being watched by store employees. Such evidence established the elements of a taking without the consent of the owner and the intent to steal. Appellants removal of the merchandise from the packages, and his movement of the merchandise as he walked around the store and dumped the empty packages, established his intent to steal and the requisite asportation. (People v. Shannon, supra, 66 Cal.App.4th at p. 654; People v. Khoury, supra, 108 Cal.App.3d Supp. at pp. 4-5.) While appellant did not possess any merchandise when he walked out of the store, he had already completed the offenses by removing the items from the secure packaging, discarding the clam packs, and walking around the store. He discarded the merchandise and the Game Boy package as he walked out, but he had already completed the theft offenses.

DISPOSITION

The judgment is affirmed.

_________________________

Levy, J.

WE CONCUR:

_______________________________

Wiseman, Acting P.J.

_______________________________

Dawson, J.

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^[1]All further statutory citations are to the Penal Code unless otherwise indicated.

^[2]As we will discuss in part II, post, appellant contends Hamptons testimony violated his Fifth Amendment right to silence.

^[3]Hampton conceded that at the previous court proceedings in this case, he failed to mention there were counterfeit bills on the desk where appellant was seated.

^[4]Villalobos conceded that at previous court proceedings in this case, he erroneously testified that he personally observed appellant engage in certain conduct, but realized that he actually learned about such conduct by watching the surveillance videotapes and did not have personal knowledge of all of appellants actions.

^[5]Appellant and his brother were initially tried together and the matter ended in a hung jury. Thereafter, a grand jury indictment was returned against appellant and his brother, and appellant was tried alone in the instant case.

^[6]The Ninth Circuit has held a defendants prearrest, pre-Miranda silence is admissible as substantive evidence of guilt in the prosecutions case-in-chief. (U.S. v. Oplinger (9th Cir.1998) 150 F.3d 1061, 1066-1067 (Oplinger); United States v. Giese (9th Cir.1979) 597 F.2d 1170; see also U.S. v. Zanabria (5th Cir.1996) 74 F.3d 590, 593; U.S. v. Rivera (11th Cir.1991) 944 F.2d 1563, 1568.) Other circuits have disagreed and held that such evidence is inadmissible and violates Griffin. (Combs v. Coyle (6th Cir.2000) 205 F.3d 269, 283; U.S. v. Burson (10th Cir.1991) 952 F.2d 1196, 1200-1201; Coppola v. Powell (1st Cir.1989) 878 F.2d 1562, 1565-1568; U.S. ex rel. Savory v. Lane (7th Cir.1987) 832 F.2d 1011, 1018.)

As to a defendants postarrest, pre-Miranda silence, the Ninth Circuit has held such evidence is inadmissible as to substantive evidence of guilt because it plainly infringe[s] upon a defendants privilege against self-incrimination. (U.S. v. Whitehead (9th Cir. 2000) 200 F.3d 634, 639; United States v. Newman (9th Cir. 1991) 943 F.2d 1155, 1158; U.S. v. Velarde-Gomez (9th Cir. 2001) 269 F.3d 1023, 1032.) But other circuits have disagreed and held a defendants postarrest, pre-Miranda silence is admissible in the prosecutions case-in-chief as substantive evidence of guilt. (See United States v. Rivera (11th Cir. 1991) 944 F.2d 1563, 1568 & fn. 12; United States v. Frazier (8th Cir. 2005) 408 F.3d 1102, 1109-1111.)