P. v. Sin

Filed 5/11/06 P. v. Sin CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Darlene E. Schempp, Judge. Affirmed.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan, Tasha G. Timbadia and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Scott Sang Sin (defendant) appeals from the judgment entered following a jury trial resulting in his convictions of second degree burglary (Pen. Code, § 459) and grand theft (Pen. Code, § 487, subd. (a)). At sentencing, the trial court granted probation on condition inter alia, that defendant spend one year in the county jail.

Defendant contends that the trial court abused its discretion and denied him due process by improperly admitting other crimes evidence. (Evid. Code, §§ 1101, subd. (b), 352.)[1]

We conclude that the evidence in dispute is admissible, and we affirm the judgment.

FACTS

The information charged defendant with two December 15, 2004, offenses arising from the same transaction, burglary and grand theft of personal property.

1. The Prosecution's Case-in-Chief

At about 4:00 p.m. on December 15, 2004, loss prevention agent Miguel Ayala (Ayala) was working for his employer Costco Stores at the store in Canoga Park. Ayala observed defendant in the store's luggage aisle and in an adjacent aisle apparently tampering with the plastic tie or seal on a piece of Costco luggage, which was sitting in defendant's shopping cart. Ayala then saw defendant replace the item of luggage at the back of the pallet constituting the display for that piece of luggage. Defendant left the store empty-handed. Ayala followed defendant outside and wrote down the license plate number on defendant's car.

Ayala reentered the store and examined the luggage. Ayala observed that the plastic seal that came on the luggage at delivery to the store was replaced with a clear plastic tie. Ayala and the store manager opened the luggage. Ayala discovered three items of electronic Costco merchandise inside the luggage. Ayala resealed the luggage with a similar plastic tie. Ayala suspected that defendant had discovered a means for stealing expensive Costco merchandise from the store without detection. He conducted a surveillance of the luggage aisle for the next several hours to see whether defendant returned.

Approximately three hours later, at about 6:15 p.m., Ayala again observed defendant in the luggage aisle of the store. Ayala saw defendant walk to the luggage display and remove the same piece of luggage from the back of its display. Defendant put the luggage into his shopping cart and went to a cash register and checked out. Defendant used a cash card to purchase the luggage for $199.99. At the same time, he purchased a $19.99 Polo Sport backpack, which was also in his cart.

Outside the store, Ayala detained defendant with the luggage and escorted him inside to the store's security office. Ayala cut the clear plastic tie that Ayala had replaced on the luggage. Inside, he found the three items that Ayala had previously observed inside the luggage: a Panasonic telephone â€