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The People v. Randy Alan Larkins

October 4, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RANDY ALAN LARKINS, DEFENDANT AND APPELLANT.



(Super.Ct.No. FWV902834) APPEAL from the Superior Court of San Bernardino County. Stephan G. Saleson, Judge.

The opinion of the court was delivered by: Ramirez P.J.

CERTIFIED FOR PUBLICATION

OPINION

Affirmed.

A jury convicted defendant, Randy Larkin, of five counts of second degree commercial burglary (Pen. Code, § 459),*fn1 four counts of receiving stolen property (§ 496, subd. (a)) and one count of identity theft (§ 530.5, subd. (a)). He was sentenced to prison for six years and four months and appeals, claiming certain opinion evidence should have been excluded. We reject his contention and affirm.

FACTS

An L.A. Fitness gym member testified that on September 18, 2008, he locked, inter alia, his driver's license into a locker at the Upland L.A. Fitness and an hour later, the lock and the license were gone. He denied knowing defendant or giving defendant permission to go into his locker or to possess his driver's license. On November 3, 2009, a California Highway Patrol officer stopped defendant's 1993 green Jeep Cherokee for not having a registration since 2005, arrested defendant for not having a valid driver's license and impounded the vehicle. On November 16, 2009, the secured impounded vehicle was searched and the afore-mentioned victim's driver's license was found inside. Defendant was convicted of the September 18, 2008 commercial burglary of the gym and of receiving stolen property on November 3, 2009, based, in part, on this evidence (counts 9 and 10).

Another L.A. Fitness gym member testified that on September 27, 2009, he locked his clothes and wallet, the latter of which contained, inter alia, his Auto Club card, into a locker at the L.A. Fitness in Upland and when he returned, the lock and his possessions were gone. He denied knowing defendant or giving defendant permission to enter his locker or to possess his Auto Club card. During the search of defendant's vehicle, which followed its stop on November 3, 2009, this victim's Auto Club card was found. Defendant was convicted of the September 27, 2009 commercial burglary of the gym and of receiving stolen property on November 3, 2009, based, in part, on this evidence (counts 7 and 8).

A Bally's gym member testified that on October 1, 2009, he locked his fanny pack, which contained personal papers, into a locker at the Bally's in San Bernardino and when he returned, the lock and fanny pack were gone. He denied knowing defendant or giving defendant permission to go into his locker or to possess his property. During the search of defendant's vehicle, which followed its stop on November 3, 2009, this victim's personal papers were found. Defendant was convicted of the October 1, 2009 commercial burglary of the gym and of receiving stolen property on November 3, 2009, based, in part, on this evidence (counts 5 and 6).

Another member of Bally's gym testified that on October 28, 2009, he locked his property into a locker at the Bally's in Rancho Cucamonga and when he returned, the lock and the property were gone. He denied knowing defendant or giving defendant permission to go into his locker or to possess his property. During the search of defendant's vehicle, which followed its stop on November 3, 2009, the victim's property was found. Defendant was convicted of the October 28, 2009 commercial burglary of the gym and of receiving stolen property on November 3, 2009, based, in part, on this evidence (counts 3 and 4).

A member of 24 Hour Fitness testified that on August 24, 2009, he locked his property into a locker at the 24 Hour Fitness in Corona and when he returned, the lock and his property, including his gym membership card, were gone. He denied knowing defendant or giving him permission to use his gym membership card. He also denied using his card at the 24 Hour Fitness in Montclair on October 27, 2009. The 24 Hour Fitness Loss Prevention Manager identified defendant as being seen on a video at the Montclair location on October 27, 2009, providing a membership card to gain access to the gym, then placing it into his backpack. The jury was shown the video. The manager testified that the data collected by the gym showed that this victim's gym card had been used to gain entry to the gym at the same time the video showed defendant using a membership card to enter the gym. Defendant was convicted of identity theft in connection based, in part, on this evidence (count 2).

Another member of 24 Hour Fitness testified that on October 27, 2009, he locked a gym bag containing his possessions in a locker at the Montclair 24 Hour Fitness and when he returned, the lock was gone and his empty gym bag was sitting on the sink in the locker room. He denied knowing defendant or giving him permission to go into his locker. The above-mentioned videotape showed defendant entering the gym at 1:32 p.m. and heading directly for the locker room. A second videotape showed defendant entering the locker room at 1:33 p.m., leaving it at 1:36 p.m. and almost immediately exiting the front door of the gym. The jury was shown the video. Defendant was convicted of the October 27, 2009 commercial burglary of the gym based, in part, on this evidence (count 1).

On November 11, 2009, a detective accosted defendant and asked defendant if he could speak to him. Defendant asked the detective if he was in trouble. Defendant denied visiting the Montclair 24 Hour Fitness. The detective showed defendant still photographs made from the above-mentioned videos and told defendant he thought defendant was depicted in them. Defendant neither denied nor admitted that this was true. The detective arrested defendant and told him that he wanted to recover the important items that had been taken from the victim of the Montclair burglary. Defendant asked several times what he would receive in exchange for cooperating. Defendant wanted a guarantee that he would not return to jail. Defendant described one of the victim's important items to the detective and said that it had been burned and the detective should not worry about what defendant was going to do with it in response to the detective's expression of concern about it. Defendant added, "that when he breaks into lockers, he does not know ...


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