P. v. Griggs

Filed 8/9/06 P. v. Griggs CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Rafael A. Arreola, Judge. Affirmed.

A jury convicted defendant Kimberly Griggs of one count of burglary (Pen. Code, § 459)^[1] and one count of grand theft (§ 487, subd. (a)). In a bifurcated proceeding, Griggs admitted the allegations that she had suffered a prior prison term (§ 667.5, subd. (b)) and had previously been convicted of a prior strike (§ 667, subds. (b)-(i)). The court denied Griggs probation under section 1203, subdivision (e)(4), sentenced her to a term of six years for the burglary conviction, and stayed the sentence on the grand theft conviction under section 654.

Griggs contends the court's erroneous admission of evidence of an uncharged prior theft mandates reversal.^[2]

FACTUAL BACKGROUND

A. Prosecution Case

On May 20, 2005, Macy's security agents apprehended Griggs when she left the store carrying merchandise for which she had not paid. While in their custody awaiting police, Griggs stated, "This is the Macy's way of shopping. I'm a secret shopper, and you guys pay me to shoplift." However, when police transported her to jail, she stated she was unemployed, and did not mention her secret employment with Macy's.

B. Defense Case

Griggs testified she was employed by Macy's corporate headquarters in New York as a "secret shopper" and tested loss prevention systems at Macy's stores by shoplifting from the stores. Her compensation is derived from selling the shoplifted items to "clients" and paying 70 percent of the proceeds to Macy's while keeping the balance. Her employment is covert and she was "not able to disclose" the name of her New York corporate supervisor nor how she reported her activities to her supervisor. She has taken "around $10 million" worth of merchandise from Macy's over her 10 years of secret shopping, but never took property without Macy's permission. She claimed her May 20 theft occurred in her capacity as a secret shopper and she believed she had Macy's permission to take the items.

C. Prosecution Rebuttal

Macy's regional director of loss prevention, Mr. Kesner, testified Macy's had used "secret shoppers" only to test customer service, and the program had been discontinued two years earlier. Macy's had never hired agents to test loss prevention, and no one had contacted Kesner to identify Griggs as an employee.

ANALYSIS

A. Admission of the Uncharged Conduct Was Harmless

Griggs asserts the trial court prejudicially erred by permitting the prosecutor to question Griggs about her March 2005 uncharged theft of merchandise from the Chula Vista Macy's. The court overruled Griggs' objection because the March 2005 theft was relevant to her credibility.^[3] The court subsequently instructed the jury that the uncharged offenses could be considered in assessing Griggs's credibility and determining whether she had the requisite intent, but could not be considered for any other purpose.

We conclude that, even assuming the prosecutor should not have been permitted to elicit further details about the March 2005 theft,^[4] the evidence was harmless by any measure. Even before the prosecutor asked about the March 2005 incident, Griggs admitted (during both direct and cross-examination) she had repeatedly taken merchandise from numerous Macy's across the country, she had taken property from the Chula Vista Macy's, and the goods she had taken over her career exceeded $10 million in value. The fact the prosecutor was allowed to briefly^[5] ask about one of those incidents did nothing to diminish her defense that she was innocent of the charged offense because the May theft, like every other incident (including the March 2005 incident), was authorized by Macy's.

Griggs argues she was prejudiced because, even if the jury accepted her belief she was authorized to take merchandise on May 20, 2005, it is reasonably probable (People v. Watson (1956) 46 Cal.2d 818, 836) the prosecutor's questions about a prior incident would lead the jury to "[convict] her anyway to prevent future harm and loss to Macy's." However, Griggs had already admitted she had taken millions of dollars worth of merchandise from Macy's during the preceding 10 years, providing the jury with ample retributive or preventive impetus. We are unconvinced that allowing the prosecutor to ask about just one of those prior thefts added to the jury's decision.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

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^[1] All further statutory references are to the Penal Code.

^[2] Griggs also asserts on appeal that it was error to impose the upper term for the burglary conviction under Blakely v. Washington (2004) 542 U.S. 296. However, Griggs concedes this contention has been resolved adversely to her by People v. Black (2005) 35 Cal.4th 1238, and raises the argument to preserve the claim for federal review.

^[3] Griggs had testified on direct and cross-examination that she had no San Diego address because she had "just returned from Chicago" from another secret shopper "mission" and had only been in San Diego for about two weeks. The defense argued that she had not denied being in town during March, but the court stated the implication he had drawn from her testimony was that she had only been in San Diego for a week or two, and therefore the March theft would constitute impeachment. When the prosecutor subsequently asked her about the March theft, she admitted she was in San Diego during March 2005.

^[4] We doubt that allowing cross-examination was error in the first instance, because Griggs opened the door to cross-examination about her prior incursions into Macy's by testifying at length to her secret shopper activities. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1147; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 72.) However, we need not decide that issue because we conclude admission of the evidence was harmless.

^[5] The prosecutor asked fewer than a dozen questions about the March 2005 incident.