P. v. Reyes

Filed 7/20/06 P. v. Reyes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed.

Donald L. LeVine, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Frank Ojeda Reyes challenges his conviction for burglary and petty theft with a prior conviction. He contends the court erred by failing to give a unanimity instruction sua sponte. We see no prejudice from any error, and affirm.

FACTS

A Fullerton clothing store supervisor noticed defendant standing by a clothing rack in the ladies' department. He did not appear to be shopping. He had already spent 45 minutes in the store. The supervisor watched defendant for about 10 minutes. During that time, he continued to stand around and stare at the cashiers. He left and came back into the store twice. The supervisor called the police.

Fullerton police officers arrived at the store and approached defendant. Defendant reached into his pocket. The officers, fearing defendant was reaching for a weapon, escorted him outside. They performed a pat-down search, finding a package of bed sheets tucked into his pants. They also found he was wearing two jackets; the inner one still had a store tag on it.

The supervisor showed the officers a toy store shopping bag she had found underneath the clothing rack where defendant had been standing. No other shoppers had been in that area recently. The bag contained a pair of jeans and a package of bed sheets from the clothing store. The jeans still had the store's security alarm tag on them. Defendant had not paid for any of the items found in the bag or on his person.

The officers arrested defendant, reading him his Miranda rights. They performed an additional search, finding defendant had only 32 cents on him. An officer asked defendant what he had been doing in the store. Defendant replied, â€