P. v. Reid

Filed 7/6/06 P. v. Reid 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, Richard E. Mills, Judge. Judgment affirmed.

A jury found Annette M. Reid guilty of second degree burglary and petty theft of retail merchandise. Reid appeals, contending the trial court erred when it admitted other uncharged acts evidence. We reject her contention and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 27, 2005, Sandra Lardge, a loss prevention manager for Robinson May Department Store (Robinson May) in Carlsbad, was in her office next to the children's clothing department when Reid entered to ask about "Quicksilver" merchandise. Thereafter, Lardge saw Reid selecting some "Quicksilver" merchandise while wearing a leather coat and noted that Reid was quickly selecting multiple items without looking at the prices. About ten minutes later, she observed Reid was still wearing the coat, but also carrying some "Quicksilver" merchandise and a black trench coat. Lardge considered Reid's actions to be suspicious and had agent Marcelino Sotelo watch and videotape Reid on the store's camera system.

Reid then joined another woman, Lana Lubeck, and they walked to another department, where Reid handed the merchandise to Lubeck. While in the china department, Reid handed Lubeck the trench coat and the women separated, with Lubeck returning to the children's department, where she removed the items from their hangers. Lubeck then wrapped the merchandise in the trench coat and left the store. Lardge apprehended Lubeck outside the store and recovered the "Quicksilver" merchandise and a Robinson May bra. Sotelo apprehended Reid after she left the store through a different exit and then walked back inside. Lardge searched the women's purses, finding a broken merchandise sensor in Reid's purse and shop lifting tools and Nordstrom's proof of purchase stickers in Lubeck's purse. Neither woman had any cash, checks or credit cards in their purses.

Carlsbad Police Officer Gerry Ellsworth responded to the shoplifting call and spoke to Reid and Lubeck. Reid told him that she and Lubeck had planned to steal clothing, with her picking out the items and giving them to Lubeck to hide under the trench coat. Officer Ellsworth searched the car that the women had arrived in and found binders with documents that connected them to Reid and Nordstrom's price tags and copies of the tags in sheets with some tags cut out. He also found containers holding price tags from Nordstrom's, with Reid admitting to Officer Ellsworth that she had made the tags on her computer and intended to use them to take and return items for cash at Nordstrom's.

Reid was charged with second degree burglary and petty theft. At trial, Reid testified in her own defense claiming Lubeck was an acquaintance that accompanied her to Robinson May where she planned to look for some shirts for her two boys. Reid asked a sales associate to hold two sweatshirts and a pair of jeans, but kept the "Quicksilver" shirts because she wanted to find them in the proper size. When Reid realized that the store did not have the shirts in the proper size, she handed them to Lubeck to either return or find in the proper size. Reid had her trench coat because it was raining outside and admitted handing it to Lubeck, but could not remember why she did so. After she and Lubeck separated, Reid told the sales associate who was holding the clothing for her that she needed to get her wallet from the car and would be right back. Reid went outside to get her wallet from the car and then returned to the store when she realized her wallet was in a different car.

Reid denied planning to steal, asking Lubeck to steal for her or knowing that Lubeck intended to steal the merchandise. Reid stated that she found the merchandise sensor on a table and intended to give it to a salesperson, but then decided to keep it. She admitted telling Officer Ellsworth that she used to work at Nordstrom's, but denied having a conversation with him, claiming he asked her a single question, "Did you print these labels?" She also denied telling Officer Ellsworth that she had made the labels on her computer intending to use them to return items to Nordstrom's for cash and claimed she told him that she had printed some labels, but not the ones found in the car. Reid explained that she showed Lubeck how to use the "Photo Shop" computer program and printed the label sheets, but did not know why some of the tags had been cut out.

A jury found Reid guilty on both counts and the trial court suspended the imposition of sentence, placed her on three years' probation and ordered her to serve 60 days in county jail with credit for time served.

DISCUSSION

Before trial, the People moved in limine to introduce the fraudulent Nordstrom's price tags and Reid's statements to Officer Ellsworth that she had made the tags on a computer planning to return items to Nordstrom's for cash. The trial court allowed the evidence, finding that the Nordstrom's price tags could be considered evidence in this case showing a plan and general inclination to steal, and Reid's statements showed motive and intent to steal. Reed contends that the trial court abused its discretion by admitting the evidence because only speculation supported the conclusion that the planned crime at Nordstrom's involved shoplifting and the erroneous admission of this evidence adversely affected her credibility. We disagree.

Evidence of other crimes or bad acts is inadmissible when it is offered to show that a defendant had the criminal disposition or propensity to commit the crime charged. (Evid. Code, § 1101, subd. (a), all undesignated statutory references are to this code.) However, such evidence is admissible if it is relevant to prove, among other things, intent, motive or the existence of a common design or plan (§ 1101, subd. (b)) and may be admissible to negate a claim of good faith belief or other innocent mental state. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) If the trial court determines that uncharged misconduct is admissible under section 1101, subdivision (b), it must then determine whether the probative value of the evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, confusing the issues, or misleading the jury. (Ewoldt, supra, 7 Cal.4th at p. 404; § 352.) We review the trial court's determination on admissibility of uncharged crime evidence for an abuse of discretion, examining the evidence in the light most favorable to the court's ruling. (People v. Catlin (2001) 26 Cal.4th 81, 120.)

Although not addressed by the parties, we note that the People proceeded against Reid on an aiding and abetting theory and the trial court instructed the jury on the conduct and intent required to find guilt based upon aiding and abetting (CALJIC No. 3.01), including the concept that principals to an offense include the actual perpetrator and all aiders and abetters of the offense committed (CALJIC No. 3.00). Because actions causally facilitating a crime may be entirely innocent (People v. Campbell (1994) 25 Cal.App.4th 402, 413), case law has established that such a person must "act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]" (People v. Beeman (1984) 35 Cal.3d 547, 560, italics omitted.) Thus, to establish Reid's liability as an aider and abettor, the prosecution was required to prove Reid knew of Lubeck's unlawful purpose.

As a threshold matter, we question the apparent assumption that the challenged evidence constituted "uncharged misconduct" because the evidence might be directly related to the instant crimes because one inference that may be drawn is the women were stealing items from one store to return to another store. Setting this point aside, even assuming the challenged evidence could be considered propensity or character evidence, we conclude that the trial court properly admitted it under section 1101, subdivision (b).

Reid is a former Nordstrom's employee who possessed original Nordstrom's price tags and sheets of counterfeit tags. Her possession of the price tags show a general plan and intent to steal and also a lack of mistake, undercutting her defense that she did not either intend that Lubeck steal the merchandise or know that Lubeck harbored such intent. Similarly, Reid's statements to Officer Ellsworth that she had made the tags on a computer planning to return items to Nordstrom's for cash suggested a motive for the instant crimes and tended to show a plan to steal items from one store and return them to another. As such, the admission of this evidence did not violate the statutory restriction on propensity or character evidence (§ 1101, subds. (a) & (b)) and any prejudice to Reid was outweighed by the probative value of the evidence. Moreover, the trial court took appropriate steps to minimize any prejudice by giving limiting instructions and we must presume that the jurors followed these instructions. (People v. Waidla (2000) 22 Cal.4th 690, 725.)

Moreover, even assuming the trial court erred in admitting the evidence, "the erroneous admission of prior misconduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded. [Citations.]" (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019.) Reid had a broken merchandise sensor in her purse, Lubeck possessed tools capable of removing such sensors with her and the "Quicksilver" merchandise was the type that would normally have been sensored. Reid admitted to Officer Ellsworth that she and Lubeck had formulated a plan to steal from Robinson May whereby Reid would give the items to steal and the coat to Lubeck and the jury viewed a surveillance videotape of the shoplifting incident and heard the testimony of two store employees describing their observations of the women. This evidence was sufficient to support the convictions and render any assumed error harmless.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

McDONALD, Acting P. J.

O'ROURKE, J.

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