P. v. Furlow

Filed 4/18/07 P. v. Furlow CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Dewey Lawes Falcone, Judge. Affirmed.

Roderick W. Leonard, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

________________

A jury convicted appellant Harold Furlow of second degree robbery (Pen. Code,  211)[1](count 1) and second degree burglary ( 459) (count 4). The trial court found true the allegations that appellant had suffered a prior conviction for a serious or violent felony and a prior prison term ( 667, subd. (a)(1); 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667.5, subd. (b).)

The trial court granted appellants Romero^[2] motion and struck the prior conviction for purposes of sentencing under the three strikes law. The trial court sentenced appellant to an aggregate term of nine years in prison. The sentence consisted of the midterm of three years on count 1, a consecutive five-year enhancement pursuant to section 667, subdivision (a)(1), and a consecutive one-year enhancement pursuant to section 667.5, subdivision (b). The trial court stayed a sentence of two years on count 4 pursuant to section 654.

Appellant appeals on the ground that the evidence presented at trial was insufficient to support the verdicts, and federal due process principles require that the judgment be reversed. We affirm.

FACTS

I. Prosecution Evidence

On August 30, 2005, Daniel Rodriguez (Rodriguez) was working as a plain-clothed loss prevention manager at the Home Depot store in Huntington Park. At approximately 6:00 p.m., Rodriguez saw appellant with an empty shopping cart on the sales floor. Appellant selected some placards and signs from a rack and placed them in his cart. He then went down the main aisle to the electrical department, where he selected other items and put them in his cart. While in the main aisle, appellant spoke with a woman accompanied by a child. The woman and the child then passed through one of the checkout stands.

Rodriguez initially began watching appellant because of the number of placards he had selected. The placards cost approximately $13 and bear no sensors to help prevent their theft. They are high-theft items that can be easily returned for store credit. Rodriguez therefore asked store investigators to assist him by performing a shadow detail of appellant.

Appellant proceeded to the garden department and selected a stainless steel trash can contained in a box that was approximately three feet tall. He put the box in his cart. From the garden department, appellant proceeded to the paint department and picked up some packaging tape and placed it in the cart. He returned to the garden department, opened the box containing the trash can, and opened the trash can. He took the placards and other items from his cart and placed them inside the trash can. Appellant closed the lid of the trash can, closed the top of the box, and taped the box shut.

Appellant took his cart to a self-checkout aisle. Rodriguez stated that when a customer places an item on the self-checkout register, the register weighs the item. If the weight is more than it should be, the register freezes the transaction and alerts the cashier. Instead of placing the box containing the trash can on the register, appellant approached the cashier monitoring the self-checkout registers. The cashier used a hand-held scanner to scan the price code from the box, which remained in the cart. Appellant then returned to the register and paid for the trash can with a store credit voucher that had been issued to him by the Home Depot store in Inglewood at 1:32 p.m. that same day. Appellant had received the voucher when he returned 10 placards without presenting a receipt.

The prosecutor played a digital video segment from the stores surveillance cameras for the jury. It showed appellants purchase of the trash can. The defense produced a receipt showing that appellant purchased the trash can at 6:22 p.m. for $54.10, including tax, and that his credit voucher then had a remaining balance of $41.16.

When appellants transaction was finished, he left the store with the merchandise. Rodriguez followed him out and alerted the assistant manager and two security guards that he needed assistance. Rodriguez and two investigators approached appellant and identified themselves. They asked him to come back into the store to discuss an item he had not paid for. Appellant said, You got the wrong mother fucker. Rodriguez asked appellant to take out the merchandise he had not paid for, and appellant said, No. Rodriguez slowly reached for appellants wrist, but appellant flung it back and pushed Rodriguez out of the way. Rodriguez and one of the investigators tried to hold the shopping cart, but appellant pushed the investigator away and pulled the cart away from them. A van backed up towards appellant, and appellant pushed his cart to meet it. Appellant opened the vans sliding door and placed the box containing the trash can inside. The woman and child who had been in the store with appellant were in the van.

Appellant turned around and saw that Rodriguez was using a cell phone. Rodriguez began to relay the vans license plate number to a 911 operator, and appellant charged at Rodriguez with the shopping cart. Appellant pushed the shopping cart with one hand and put his other hand on a black object in his waistband. Appellant continuously uttered threats to Rodriguez. Because Rodriguez was afraid that appellant might have a gun, he backed away and hid behind a car. Appellant slammed the cart into a curb near Rodriguez, and the cart flipped over. Appellant ran back to the van, got in, and the van drove off. Police officers responded to the store and took Rodriguezs statement.

Detective Neil Castelli of the Huntington Park Police investigated the case. Detective Castelli determined that the photograph on the drivers license of the person who returned the placards to the Inglewood store was that of appellant. Detective Castelli prepared a photographic lineup (six-pack) and included appellants photograph. Rodriguez selected appellants photograph from the six-pack.

Detective Castelli learned that appellant was in custody and spoke with him after obtaining a waiver of appellants Miranda^[3] rights. Appellant told the detective that at the time of the incident he was in the Huntington Park Home Depot with his sister and girlfriend. He bought a plastic trash can to give to his grandmother. He denied taking anything from the store. He felt embarrassed and harassed when confronted by security because they wanted him to open the box in public. He said the security guards swarmed in on him, and he was afraid because a store employee had a box cutter in his hand. He denied having gone to the Inglewood Home Depot in the past two years. Detective Castelli searched appellants home where he lived with his grandmother and brother. He did not find a trash can similar to the one appellant bought at the Home Depot.

II. Defense Evidence

Sheresa Ballomy (Ballomy) was appellants girlfriend and had known him for two or three years at the time of trial. Sometime in August 2005 Ballomy arranged to pick up appellants sister, Janaya Furlow (Janaya), and take her to her Huntington Park home. Appellant and Ballomys son and niece went along.

On route to Janayas home, Ballomy stopped at the Home Depot store in Huntington Park to buy batteries and a broom. Ballomy looked at the brooms and dustpans as appellant looked at trash cans. Ballomy told appellant she was going to check out, and she paid for her purchases and returned to the van.

As Ballomy sat in the car, she heard appellant arguing with someone. She backed up the van to see what was occurring. Appellant had previously gotten into arguments in public. As Ballomy backed up the van, appellant approached it with a shopping cart. He opened a door and put a box inside. Appellant pushed the cart to a cart-return area and got in the van. Ballomy did not see appellant charge at anyone with the cart. Ballomy dropped off appellant and the box at his grandmothers home.

At the time of trial, Ballomy and appellant were separated but still kind of girlfriend and boyfriend. Ballomy was not aware of a restraining order for the protection of her and her son from appellant that was issued in 2004 and was still in effect. She understood why it was issued, because appellant had a propensity for violence and had threatened her numerous times. Ballomy believed appellant had been a danger to her and her son. Ballomy had told the public defenders office that she did not want to testify and wanted nothing to do with appellant.

DISCUSSION

I. Argument

Appellant contends there was insufficient evidence of an entry with intent to commit grand or petit larceny because there was insufficient evidence of larceny and therefore insufficient evidence of burglary and robbery. Appellant argues that the key prosecution witness, Rodriguez, was not believable.

II. Relevant Authority

In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: [We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] The United States Supreme Court has held: [T]his inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. [Citation.] Instead, the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] . . . .  The California Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citations.] (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)

Given this courts limited role on appeal, appellant bears an enormous burden in claiming there was insufficient evidence to sustain the finding. If the finding is supported by substantial evidence, we must give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The standard for securing a reversal is just as high when the prosecutions case depends on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) As long as there is reasonable justification for the findings made by the trier of fact, a reviewing courts opinion that contrary findings might also have been reasonable does not require a reversal. (Id. at p. 793.)

III. Evidence Sufficient

Appellant cites a number of factors in support of his argument. He claims that Rodriguez was materially inconsistent in his testimony and admitted he was not able to see all of appellants actions in the Home Depot store. In addition, Rodriguezs testimony at the preliminary hearing was materially different than his trial testimony. Appellant points out that it is not unusual behavior to place items in a cart and remove them before leaving the store, and appellant did pay for the trash can. No placards or light fixtures were found in appellants home, and the return of placards to the Inglewood store occurred before the alleged crimes were committed. For appellant, these facts lead to the conclusion that the evidence was insufficient to support the conviction.

We disagree. To support a conviction for burglary with the intent to commit theft, the following elements must be proved: A person entered a building and, at the time of the entry, that person had the specific intent to steal and take away someone elses property and intended to deprive the owner permanently of that property. ( 459; CALJIC No. 14.50).)

The evidence showed that appellant had returned 10 placards without a receipt to the Inglewood Home Depot at 1:32 p.m. on the day of the incident. In return he received a store credit, which he took with him to the Huntington Park store on the same day. Rodriguez witnessed appellant pick up placards and other items and place them in his cart. Unbeknownst to appellant, Rodriguez observed him open the box containing the trash can, open the trash can, and place the placards and other items from his cart (except the tape) in the trash can. Appellant used the tape to seal the box. He then took the sealed box to the self-serve checkout station. He did not place the trash can box on the self-serve checkout machine, thus avoiding its being weighed. Instead, he had the bar code scanned while the box was still in the cart. Appellant then paid for only the trash can with the credit voucher he had received earlier. From this evidence, a reasonable jury could determine that appellant had the specific intent to steal when he entered the store and that he did indeed steal the items he had placed in the trash can before sealing the box.

With respect to robbery, the jury was instructed that [t]he crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety. A robbery occurs when a person uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owners immediate presence regardless of the means by which the person originally acquired the property. It is sufficient that the person taking the property used force to prevent the victim from retaking the property and to facilitate his escape.

The evidence showed that appellant shoved Rodriguez when Rodriguez attempted to take hold of appellants wrist outside the store. Appellant refused to hand over the property. He forcefully pulled the cart away from Rodriguez and an investigator and later charged at Rodriguez with the shopping cart when he saw Rodriguez using his cell phone to report the license number of the van. Appellant also repeatedly threatened Rodriguez, which caused Rodriguez to desist and hide behind a car. Appellant slammed the cart into the curb near Rodriguez with enough force to cause it to flip over. The jury could therefore have reasonably found that appellant used force or fear to prevent Rodriguez from retaking the property inside the trash can and to facilitate his escape.

As for appellants assertions regarding Rodriguezs credibility, it is well established that the uncorroborated testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to sustain a criminal conviction. (Evid. Code, 411; People v. Alcala (1984) 36 Cal.3d 604, 623; People v. Scott (1978) 21 Cal.3d 284, 296; see CALJIC No. 2.27.) The differences in this witnesss preliminary hearing testimony and his trial testimony as to whether appellant picked up the placards first or whether he obtained electrical parts from the electrical department or the hardware department did not serve to render his testimony inherently improbable. Furthermore, the jury was given CALJIC No. 2.20, which instructed them on the criteria to be used in determining the believability of a witness. The jury was also instructed in how to evaluate discrepancies in a witnesss testimony or between one witnesss testimony and that of another. (CALJIC No. 2.21.1.) This instruction told the jury to consider whether a discrepancy relates to an important matter or to something trivial.

Thus, the jury was fully able to evaluate the credibility of the principal witnesses in the case, and appellants arguments amount to nothing more than a request that this court reweigh the evidence. This is not the function of an appellate court. (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.] (People v. Maury (2003) 30 Cal.4th 342, 403.) 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 credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]. (Ibid.)

Appellants argument is without merit.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

____________________, Acting P. J.

DOI TODD

____________________, J.

CHAVEZ

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

[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

[3] Miranda v. Arizona(1966) 384 U.S. 436 (Miranda).