P. v. James

Filed 8/18/06 P. v. James CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge.

Kenneth J. Hutz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Anthony Deon James was charged and convicted of grand theft of personal property over $400 (Pen. Code,^[1] § 487, subd. (a)), based on his theft of a watch from a jewelry store. He was sentenced to the middle term of two years and ordered to pay direct restitution of $1,695, based on the testimony of the jewelry store owner as to the watch's retail price. Appellant filed a timely notice of appeal. On appeal, he asserts the court lacked sufficient evidence to impose the restitution order, and the court failed to properly respond to the jury's question about the flight instruction.

FACTS

On the afternoon of April 13, 2005, Kandice Sheets (Sheets) was working at her business, Latham Sheets Fine Jewelry, in Bakersfield. Carol Rice, who used to work at the jewelry store, was there and looked at a Cyma brand ladies watch, but did not buy it.

Sheets testified that about 10 minutes later, a man rang the buzzer to gain entry into the store. Sheets described him as a Black male, about six feet tall, wearing a baseball cap backwards and a jersey with patches. Sheets subsequently identified appellant as the man. Appellant said he wanted his jewelry cleaned. Sheets said the store did not clean jewelry, but she let him into the store and he asked to look at wedding rings.

Sheets testified appellant was nervous and fidgety, and repeatedly moved his hands in and out of his pockets, as she showed him various rings. Sheets testified that appellant intentionally knocked a ring off the counter, which forced Sheets to bend over to pick it up. Sheets was suspicious about the way appellant acted, and activated the store's silent security alarm. She pushed the silent alarm button three times because she was not sure if it was working.

Sheets testified appellant turned his attention to watches which were in boxes, and displayed on top of a counter. Appellant asked to look at the watches. Sheets mistakenly dropped her keys and had to bend down to pick them up, and was not watching appellant. The store's security videotape revealed that when Sheets bent down to pick up the keys, appellant used his left hand to grab something from the top of the counter.

Sheets testified that as appellant looked at the items, the store's telephone rang but she did not answer it. The call switched over to the speaker phone on her answering machine, which revealed it was the police department calling about the silent alarm. Sheets did not react to hearing the police department over her answering machine, but appellant was present and could have easily heard the call.

Sheets testified that appellant's cell phone rang, he looked at the telephone number, and said it was his fiancée calling. When he answered the cell phone, Sheets heard a male voice screaming at appellant to get out. Appellant calmly told the caller, â€