IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
August 5, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MATTHEW ERIC ERICKSON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 62097401)
The opinion of the court was delivered by: Robie , J.
P. v. Erickson
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Matthew Eric Erickson walked out of a Rite Aid pharmacy without paying for his prescription pain medication that cost $1,372.42, despite multiple warnings from store employees he was "not allowed to take those." He was caught outside the store by an off-duty deputy sheriff. A jury found him guilty of grand theft.
Defendant appeals, contending: (1) there was insufficient evidence he intended to steal the medication; and (2) trial counsel was ineffective for failing to challenge evidence of defendant's dismissed burglary count. Finding no merit in these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
One evening in March 2010, defendant went inside the Rite-Aid pharmacy on Bell Road in Auburn to pick up his prescription pain medication. The pharmacy technician set the prescription pill bottles on the counter and showed him the price on the receipt, which was $1,372.42. The pharmacy technician explained the price was so high because Placer County had not authorized payment via a stamp by the community clinic. Surprised, defendant responded, "'I have always gotten these free. I should not have to pay for them.'"
The pharmacy technician called over the pharmacy manager. The pharmacy manager explained to defendant that defendant could wait a day to see whether Rite-Aid could resolve the problem or he could go to the county office himself and get the stamp.
Upset, defendant "reached over the counter . . . and just grabbed the [medication] and held onto it." The pharmacy technician told defendant he could not "'assume [the medication] [wa]s [his] until [they] receive[d] payment'" and asked for the medication back. The pharmacy manager told him, "'Sir, you are not allowed to take those.'"
Defendant started to leave. The pharmacy manager told him to "please stop or [they] would have to call the police." Defendant did not stop, so the "night supervisor" called 911.
An off-duty deputy sheriff heard the argument at the pharmacy counter and saw defendant walk out the door. Defendant then began running along the street, and the deputy chased him, yelling three times, "'Sheriff's Department, stop. Matt, stop.'" As the deputy sheriff began to catch up with him, defendant looked back over his shoulder, said, "'Oh, fuck it,'" and threw the medication in the air. The deputy took defendant back to Rite-Aid where he was turned over to on-duty deputies.
Based on defendant's conduct at Rite-Aid and his criminal history, he was charged with burglary in count one, petty theft with priors in count two, grand theft in count three, and a prior prison term. Before the evidentiary portion of trial, the court granted the People's motion to dismiss the burglary charged in count one and accepted defendant's admission of the prior thefts and the prior prison term.
The jury found defendant guilty of grand theft, which was still designated as count three.
There Was Sufficient Evidence
Defendant Intended To Steal The Pain Medication
Defendant contends there was insufficient evidence he intended to steal the pain medication. He argues he "had a good faith belief he was entitled to the [medication]" and "believed the pharmacy staff was mistakenly withholding the [medication] from him . . . ." Defendant's argument is nothing more than a reweighing of the evidence, which is the wrong way to challenge the sufficiency of evidence on appeal.
To challenge the sufficiency of evidence, the appellant bears the burden of demonstrating "'that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].'" (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Defendant has not met that burden here.
Defendant was told twice -- once by the pharmacy technician and another time by the pharmacy manager -- the medication had not been paid for, so he had to give it back. Specifically, the pharmacy technician told defendant he could not "'assume [the medication] [wa]s [his] until [they] receive[d] payment'" and asked for the medication back. The pharmacy manager told him, "'Sir, you are not allowed to take those.'" Even defendant himself testified the pharmacy technician told him "'there was no stamp on the back of the prescription'" that would have indicated the medication was covered by insurance and that he would "'either have to pay for this or take it back and get a stamp.'" Despite this information and multiple warnings, defendant ran off with the medication, knowing he was being chased by law enforcement. When he was escorted back to Rite-Aid by the off-duty deputy sheriff, defendant never told the deputy he believed the medication belonged to him. In light of all this testimony, there was sufficient evidence defendant intended to steal the pain medication.
Trial Counsel Was Not Ineffective
Defendant contends his trial counsel was ineffective because counsel failed to keep evidence of the dismissed burglary charge from the jury. Specifically, he alleges counsel erroneously failed to object to: (1) the pharmacy technician's unsolicited testimony that defendant "had other items in [his] backpack that were questionable"; (2) jury instructions that had references to the dismissed burglary charge blacked out, which defendant claims "indicated [he] had committed uncharged crimes"; and (3) the trial court's designation of "count two" and "count three" without a "count one." He further contends these errors were cumulatively prejudicial. We take each allegation of ineffective assistance in turn, rejecting them all because counsel's performance was not deficient, which is the first prong of an ineffective assistance of counsel inquiry. (People v. Waidla (2000) 22 Cal.4th 690, 718.)
Testimony Defendant Had
"Other Items In The Backpack That Were Questionable"
During defense counsel's cross-examination of the pharmacy technician, counsel asked whether she was "present when [defendant] was returned to the store?" The technician responded as follows: "I never saw [defendant] again after he left the store. All I know is that he -- the policeman recovered his backpack, and they brought it into the store, because he had other items in the backpack that were questionable."
On appeal, defendant argues the statement was an "obvious reference to the BIC lighters found in [his] backpack, for which the [People] initially charged him with burglary; this count was later dismissed prior to trial." He continues that "[t]here could be no reasonable basis for counsel not to move to strike [the pharmacy technician]'s testimony." Defendant's argument is at best wrong and at worst misleading.
Defendant's argument is wrong because defense counsel reasonably could have concluded that asking the court to strike the testimony would serve only to draw the jury's attention to the technician's fleeting remark. (See People v. Padilla (1995) 11 Cal.4th 891, 958, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 ["defense counsel's failure to object was probably a conscious tactical decision and a sensible one at that, taken so as not to draw the jury's attention to remarks that were, in context, fleeting"].)
Defendant's argument is misleading because he points to nothing in the record to substantiate his inference on appeal the jury learned defendant had possibly shoplifted BIC lighters. The term "questionable items" in the backpack was vague, and the jury could have interpreted it to mean many things other than items stolen from Rite-Aid.
Failure To Seek "'Cleaned-Up'" Jury Instructions
Without Phrases That Had Been Blacked Out
The packet of instructions given to the jury in the deliberation room had phrases that were blacked out in heavy marker. The blacked out phrases referred to the burglary that was initially charged as count one and to the theft-related convictions that defendant admitted. Defendant claims his trial counsel was ineffective for not seeking "'cleaned-up'" jury instructions.
Defendant's argument fails to acknowledge a simple fact: at the beginning of the instructions, the court told the jury, "I will now instruct you on the law that applies to this case. I will give you a copy of the instructions for you to use in the jury room . . . . Certain sections may have been crossed out or added to. Disregard any deleted sections and do not guess what they might have been. Only consider the final version of the instructions in your deliberations." The version given to the jury that defendant now complains about also had this same admonition, i.e., disregard crossed out sections and do not guess what they might have been.
Counsel reasonably could have decided not to object to inclusion of the blacked out phrases in the written instruction packet because the jury was adequately instructed on how to treat those phrases. Counsel could have reasonably presumed the jurors would follow these instructions. (Francis v. Franklin (1985) 471 U.S. 307, 324, fn. 9 [85 L.Ed.2d 344, 359, fn. 9].) Counsel therefore was not deficient for failing to seek "'cleaned-up'" jury instructions.
Failing To Object To The Designation Of "Count Two"
And "Count Three" Without A "Count One"
In front of the jury, the court referred to defendant's two remaining charges -- petty theft and grand theft -- as counts two and three. Defendant claims his trial counsel was ineffective for not objecting because the numbering of the counts "created a prejudicial inference that [he] had been charged in this case with other offenses/allegations."
Defendant acknowledges the court instructed the jury at the beginning of trial, "Don't be concerned because there is no Count One. That is irrelevant to anything that you are going to decide here." Nonetheless, he argues, "the trial court's admonitions could not cure the harm inherent in this inflammatory information." Not so.
The cases that deal with this "inherent harm" are not analogous to the situation here. They are ones where actual evidence was improperly introduced against the defendant. (See, e.g. Bruton v. United States (1968) 391 U.S. 123, 126 [20 L.Ed.2d 476, 479 [incriminating extra-judicial statements].) Here, the numbers attached to counts were not evidence, and the jury was so instructed by the court, i.e., that the "statement of charges" was "just a document" and "[wa]s not evidence." We find that counsel was not deficient for failing to object to the numbering of the counts because of the adequate admonitions that the jury is presumed to follow.
As we have found that counsel's performance was not deficient, we reject defendant's argument of cumulative prejudicial error based on counsel's alleged deficiencies.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. HOCH , J.
© 1992-2011 VersusLaw Inc.