P. v. Phomphachanh

Filed 5/16/06 P. v. Phomphachanh CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

A jury convicted defendant Sisavanh S. Phomphachanh of six counts of commercial burglary, one count of receiving stolen property, and one count of petty theft. The trial court sentenced defendant to three years and four months in prison exclusive of the petty-theft conviction. For the petty-theft conviction, the trial court chose a consecutive sentence of 141 days, awarded defendant 141 days of presentence credits, and deemed the sentence served. On appeal, defendant contends that (1) the trial court erred by admitting evidence of an uncharged crime, (2) she received ineffective assistance of counsel because counsel failed to make a due process objection to the uncharged-crime evidence, and (3) the consecutive sentence for petty theft constitutes improper multiple punishment (Pen. Code, § 654).[1] The People concede the section 654 issue, and we agree that the concession is appropriate. We otherwise disagree with defendant. We therefore modify and affirm the judgment.

background

Defendant and confederates operated a shoplifting scheme in which they would steal merchandise from retail stores only to return it in exchange for store credit.[2] Gilroy police caught defendant by stopping her automobile after a theft witness reported the automobile's license number. They found merchandise worth $3,152 in the automobile and credit receipts from various merchants in defendant's possession.

While this case was pending, Modesto police arrested defendant for shoplifting. During in limine proceedings, the People successfully moved to admit evidence of this incident under Evidence Code section 1101, subdivision (b), to prove defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident.

Modesto Police Officer Kelly Scott testified for the People. He summarized his expertise as an 18-year officer with the Modesto Police Department who had various assignments that included his current assignment investigating economic crimes. He explained that shoplifters commonly return stolen merchandise in exchange for credit receipts that can then be sold for 50 cents on the dollar. He stated that he had recently stopped defendant's automobile in a Modesto shopping mall because mall security alerted him to a theft that it had traced to defendant's car. He added that defendant was the driver, the theft suspect was sitting in the front seat, and two others were sitting in the back seat. He related that he found in the car and confiscated merchandise worth $6,700 that he believed to be stolen because (1) the volume of merchandise was large, (2) the packaging of the merchandise was in nondescript bags rather than merchant-logo bags, (3) the merchandise was new and many items were duplicative, (4) defendant and her passengers had no receipts for the merchandise, and (5) he found in the car a list of Northern California shopping malls with addresses and telephone numbers. He added that he arrested defendant for commercial burglary, possession of stolen property, and conspiracy.

evidence of the modesto uncharged crime

Character evidence in the form of specific instances of a person's conduct is inadmissible when offered to prove the person's conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) This prohibition, however, does not apply if the evidence is relevant to prove some fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident, other than the person's disposition to commit the act. (Id., subd. (b).)

In our context, evidence of defendant's misconduct in Modesto â€