APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. (Super.Ct.No. FMB900101)
The opinion of the court was delivered by: King, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed with directions.
This case arises from the burglary and theft of approximately $80 in groceries and cookware from a Stater Bros. grocery store. Defendant's girlfriend, Janna Lorette, was the alleged principal in the burglary. Defendant was charged with being an accessory after the fact pursuant to Penal Code section 32.*fn2 He was convicted of the charge by a jury and sentenced to two years in prison.
On appeal, defendant contends the evidence was insufficient to support his conviction. First, he contends there was no substantial evidence he knew that Lorette intended to steal when she entered the store. Second, he argues he cannot be convicted of being an accessory to a felony when there was no evidence that the underlying burglary was a felony burglary. Defendant further contends: the jury instructions ambiguously failed to clarify that defendant could not be convicted for merely helping the perpetrator after she committed theft; the court prejudicially erred in giving a flight instruction; and the cumulative effect of errors requires reversal. We reject these arguments and affirm the judgment. Finally, defendant contends, and the People agree, that the court erred in delegating the calculation of defendant's conduct credits to the Department of Corrections and Rehabilitation. The correct credit is six days. We will direct the court to amend the abstract of judgment accordingly.
During the afternoon of February 26, 2009, David Nelson, an assistant manager of a Stater Bros. grocery store, observed a woman leave the store without going through the checkout. The woman was carrying a large purse or bag that was bulging on one side. Within minutes, the woman walked back into the store carrying the same purse, which now appeared to be empty. A few minutes later, she left the store with her purse bulging again.
Nelson followed the woman into the parking lot. He saw her removing items from her purse and placing them into compartments in the back of a utility truck. Nelson approached her and asked if she had a receipt for the items. She said she did not. He asked her if she had any proof of payment. She refused to talk to him and moved away from the truck.
As Nelson began to retrieve the items from the truck, defendant approached. He was pushing a shopping cart with two children inside. There were no groceries in the cart.
Nelson asked defendant if the truck was his. Defendant said it was. Nelson told defendant he was retrieving items that were stolen from the store. Nelson asked defendant if he knew the woman who took the items, and defendant said he did. According to Nelson, defendant "seemed very surprised that she was shoplifting" and "was mad that she was doing that."*fn3 Defendant told Nelson, "I can't believe she did that."
Nelson told defendant the woman claimed "'to not have any [identification] on her,'" and asked defendant if he would assist in getting her identification. Defendant said he would, and told Nelson, "'Just let me get the kids in the car, and I'll help you.'" Nelson removed the remaining stolen items from the truck as defendant put the children inside. Defendant then "jumped in the truck, started up, and started backing away."
It is not clear from our record where the woman went after she moved away from the truck. However, Nelson testified that the "suspects" (plural) drove away from the store, indicating that Lorette left the parking lot with defendant.
The truck did not have a rear license plate, but it did have the name of a contractor and a contractor's license number on the side of the truck. Nelson wrote down the information and called the police. Deputy Sheriff Ryan Cook responded. Nelson gave the truck's identifying information to Deputy Cook.
Nelson took the stolen items back into the store and created a register receipt of the 19 items, which described the items and calculated their value to be $79.94. The items included food and cookware.
The store has a video surveillance system that records movement within the store and in the parking lot. The system recorded the arrival of defendant and the woman, their entries and exits at the store, and their departures. The recording was copied to a DVD, which was shown to the jury. Photographs reproduced from the DVD were also introduced.
The DVD shows defendant and the woman pulling into the parking lot. Defendant entered the store first, with one or two children in his cart. Approximately 20 seconds later, the woman entered. The woman's purse appears to be empty. She left the store alone, approximately seven minutes after she entered. She reentered the store less than two minutes later. She left the store again, purse bulging, four minutes later. Defendant left the store approximately one minute after the woman left. Just ...