P. v. Rushton

Filed 7/20/06 P. v. Rushton CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Raymond Rushton of grand theft for an incident at Wal-Mart. The trial court suspended imposition of sentence and placed defendant on formal probation for five years.

On appeal, defendant contends the trial court improperly (1) admitted evidence of defendant's prior shoplifting at Target, (2) admitted into evidence a videotape of defendant's activity at Target, and (3) admitted evidence of defendant's prior conviction for carrying a loaded firearm in a public place. We affirm.

FACTS

On May 10, 2004, Kevin Kelly, a loss prevention officer at the Rancho Cordova Wal-Mart, observed defendant inside the store removing the contents of a box containing storage shelving. Since this was abnormal activity, Kelly continued watching defendant. Defendant placed the empty box in a shopping cart and wheeled it to the housewares department, where he took it out of the cart and placed it on the floor.

Kelly saw defendant go to the hardware department and retrieve a cart already filled with a welder and men's razors. Defendant pushed this cart back to where he left the empty box, and then placed the items from the cart into the box. He added a bath rug and some hand towels to the box, then closed it and taped it shut.

Finally, Kelly saw defendant take the sealed box to the check-out stand. Defendant used a gift card to pay for the sealed box, as if it only contained the storage shelving, which cost approximately $20. Defendant did not pay for the merchandise which he had placed inside the box. Kelly approached defendant as soon as he left the store and placed him under citizen's arrest. Kelly had the merchandise inside the box scanned; the total value was $600.33.

Defendant's version of the story differs significantly. Defendant testified another man tricked him into presenting the sealed box at the register and he did not know there was other merchandise inside it. This other man had agreed to buy defendant's gift card and wanted defendant to prove the amount on it. Defendant was never in the housewares or hardware department of the store, and only went to the food section. Defendant was in line to buy some food at the check-out stand when this other man came to him with the sealed box and suggested he pay for that too in order to prove the value of the gift card. Defendant stated it must have been this other man whom Kelly observed in the other parts of the store.

DISCUSSION

I

Prior Shoplifting Incident

During its case-in-chief, the prosecution introduced, under Evidence Code section 1101, subdivision (b),^[1] evidence of defendant's prior shoplifting to show defendant's intent to commit the current offense and absence of mistake or accident. Defendant claims it was error for the court to admit evidence of his prior shoplifting. We disagree.

Roger Kleeb was employed as a loss prevention officer at Target on March 9, 2003. Watching through a camera in the security room, Kleeb saw defendant take an item from a shelf in the sporting goods department and pull the packaging apart. Kleeb went to the sales floor to get a better view of defendant. He saw the empty package from a camping lighter in defendant's cart and saw defendant try, though unsuccessfully, to pull apart other packages. Defendant put an unopened camping knife package in his cart, took it to the home improvement section, and used a screwdriver from the shelf to open it. Defendant then put the camping knife in his pocket and left the store without paying. Kleeb apprehended defendant outside the store, he found the camping lighter and the camping knife on defendant's person.

In a motion in limine, defendant asserted that the prosecution should not be allowed to introduce evidence of the shoplifting defendant committed at Target. He argued that the facts of that case were too dissimilar to the facts of this case to be probative of defendant's intent in this case. He also claimed the undue prejudice and jury confusion caused by the evidence would substantially outweigh the probative value. The prosecution countered with its own motion in limine to admit evidence of the Target incident â€