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The People v. Cynthia Joan Witts et al

March 2, 2011


(Super. Ct. No. 09F04942)

The opinion of the court was delivered by: Butz ,j.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury found defendant Cynthia Joan Witts guilty of second degree burglary (Pen. Code, § 459),*fn1 and found defendant Sean Patrick Myers guilty of the same offense (ibid.) and petty theft with a prior (§ 666). The trial court sustained allegations that defendant Myers had a previous conviction for petty theft and had served a prior prison term. (§ 667.5.)

The court denied the motion of defendant Witts to reduce her offense to a misdemeanor (finding her conduct indicated a degree of sophistication, and citing her failure to take full responsibility for her actions). It nonetheless found hers to be an unusual case and granted formal probation (conditioned inter alia on a 120-day jail sentence), suspending imposition of judgment.*fn2 It determined she had one day of custody credit. The court also imposed various enumerated fines and fees. (It did not award direct restitution because the victim recovered all of its property.) The court set the reasonable value of defendant Witts' legal fees at $600, as to which she reserved her right to a hearing on her ability to pay.

The trial court also denied the motion of defendant Myers to reduce his convictions to misdemeanors. Declining to find his to be an unusual case making him eligible for probation, the court sentenced defendant Myers to the middle term on the burglary conviction (as enhanced with the prior prison term) and stayed execution of sentence on the theft conviction for an aggregate sentence of three years in state prison. It originally awarded 123 days of custody credits and 60 days of conduct credits; on application of appellate counsel, the court issued an amended abstract of judgment in May 2010 increasing the amount of conduct credit to 122 days. (Former § 4019, subds. (b)(1), (c)(1) & (f) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50 (hereafter former section 4019)].)

The ensuing appeal of defendant Witts is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accord with the latter, the Factual and Procedural Background includes any proceedings in the trial court pertinent to her appeal (along with the circumstances of her offense). In his appeal, defendant Myers asserts the trial court erred in denying his motion for acquittal. We shall affirm both the order granting probation to defendant Witts as well as the judgment of defendant Myers as modified.


Defendant Myers waived a preliminary hearing; defendant Witts submitted the issue of probable cause on the police reports and moved to reduce her offense to a misdemeanor. The magistrate denied the motion and held her to answer, deeming the complaint to be the information. She entered a plea of not guilty.

Before trial, defendant Witts had been willing to plead to a misdemeanor. However, as it was part of a negotiated package that her co-defendant would not accept, she went to trial, where she did not testify and counsel did not present any evidence in her defense, make any argument, or question any of the witnesses (noting the strongest reasonable legal strategy for defendant Witts was to seek reduction of the offense to a misdemeanor).

A Wal-Mart "asset protection" employee testified that he kept the co-defendants under constant supervision after they entered the store in June 2009 and went to the cosmetics department, which was particularly subject to shoplifting, because they had reusable bags in their cart and this had become a preferred method of shoplifting. He also found it unusual that defendant Witts simply grabbed a plastic juice jug and tossed it in the cart without checking the price. The co-defendants appeared to him to be making joint decisions regarding the merchandise they were selecting. The asset protector specifically recalled defendant Myers at one point placing a pair of boots in the cart after browsing through the selections. Defendant Myers kept looking around as they walked. As they headed toward the exit, there were numerous items in the shopping cart, with the reusable bags on top of them.

Approaching the general exit, the two of them separated. Defendant Myers walked out the general exit. Defendant Witts went past all the general checkout counters and walked toward the checkout counters and exit for the food department. The asset protector followed defendant Myers while his supervisor followed defendant Witts. Defendant Myers walked about half of the 200 feet separating the general exit from the food exit and waited. Defendant Witts walked out the food exit less than a minute later without attempting to pay for the merchandise in her cart. She met up with defendant Myers. There were 37 items in the cart, valued at $188 (rounded) before taxes. The items were all unbagged; the reusable bags had been tucked into the cart's child seat.

When the co-defendants began to head out into the parking lot, the asset protectors detained them and asked about the unpaid merchandise in the cart. Defendant Myers did not seem visibly surprised at hearing this. Defendant Witts initially claimed she had been looking for defendant Myers, and offered to pay for the items. Defendant Myers challenged the right of the asset protectors to detain them and demanded that they call the police. A police officer and a sergeant responded. The police officer was responsible for the investigation.

As the police questioned the defendants (it is not clear whether one or both of them were present), the asset protectors heard defendant Witts admit that she had intended to shoplift the items before arriving at the store. The asset protector said he also heard defendant Myers initially deny any role in the selection of the goods or the departure from the store without paying for them; however, he heard defendant Myers eventually admit it was his fault that "they had come to do this because he was unable to provide for them without a job." The asset protector admitted that he had not included any quote of these admissions in his report, simply noting instead that they had made admissions. He acknowledged the possibility that he could be mistaken in attributing these ...

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