P. v. Morales

Filed 11/30/05 P. v. Morales CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. KIRSTY MORALES, Defendant and Appellant.

2d Crim. No. B179889 (Super. Ct. No. LA046642) (Los Angeles County)

Kirsty Morales appeals a judgment after her conviction of second degree commercial burglary (Pen. Code^[1], § 459-count one), attempted grand theft (§§ 664, 487, subd. (a)-count two), and conspiracy (§ 182, subd. (a)(1)-count three). We conclude that substantial evidence supports the judgment and the trial court did not abuse its discretion by not striking a prior serious felony conviction. The abstract of judgment must be corrected because it is not consistent with the sentence the court imposed. In all other respects, we affirm.

FACTS

A department store security officer saw Morales and four boys, ages 14 to 16, acting suspiciously. They grabbed "bundles of clothes" and then "huddled in a circle." They did not try on clothing, talk to salespeople, go to cash registers or try to buy anything. Store security officer Jermaine Harris testified it was unusual for five people to grab so many clothing items without looking at price tags.

One of the boys told Morales, "pull the car around so it would be easier." She nodded and handed the clothes she had taken to one of the boys.. As she walked to the parking lot, the boys remained in the store near the exit door holding the merchandise. Store security officer Gracia Farran testified they were "waiting" and "looking out for any vehicle."

As Morales drove her car toward that exit door several store security officers approached. They were outside the store to prevent the boys from leaving with the merchandise. Morales put her car in "reverse burning rubber" and drove away from the area where the officers had positioned themselves. A minute later she entered the store again and talked with one of the boys. They abandoned the merchandise, leaving it "in different piles in the store." As they left the store as a group, store security agents detained them and took them to a store office. Morales said that they had been "trying on the clothes."

Police Officer Douglas Bowler searched Morales and the four boys in the store. He said, "between the five" of them they had a total of "approximately $39." The boys had no credit cards. Morales did not have "any credit cards or any money." The group dropped merchandise worth $1,871.50 before they left the store.

The prosecution introduced a store surveillance video tape. Morales did not testify or present a defense.

DISCUSSION

I. Substantial Evidence

Morales contends the evidence was insufficient to sustain the convictions on the three counts. We disagree.

We must draw all reasonable inferences in support of the judgment. (People v. Ainsworth (1988) 45 Cal.3d 984, 1022.) Because of this, the "defendant bears an enormous burden" when challenging the sufficiency of the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)

Entering a building with the intent to commit a theft or a felony is burglary. (§ 459.) "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.) "'[I]ntent must usually be inferred from all of the facts and circumstances . . . .'" (People v. Cain (1995) 10 Cal.4th 1, 47.) It "may be proved by circumstantial evidence." (People v. Moore (1965) 234 Cal.App.2d 29, 31.)

"Evidence is sufficient to prove a conspiracy . . . 'if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.] '" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)

Here a trier of fact could reasonably infer that Morales and her associates entered the store in a coordinated effort with the intent to commit theft. They quickly gathered expensive clothing and then "huddled in a circle." They were not shopping, did not try on clothing, talk to salespeople, go to cash registers or try to buy anything. They grabbed 39 items worth $1,871.50, but as a group they had only $39.00 between them.

Morales notes that she "had approximately $330 in her purse when she was booked." But when the police searched her in the store she had no purse. It was in her car. She had no cash or credit cards with her. The money found in her purse was insufficient to pay for the expensive clothing they had gathered.

Morales claims that the evidence is insufficient because they did not commit "unequivocal act[s]" such as removing price tags or "concealing items under clothing or in bags." But there are other ways to commit theft. Harris testified that a common routine is to "grab" items and run away. Jurors could infer criminal intent from the group's strange behavior. The prosecution only needed to prove that a conspirator committed an act in furtherance of the conspiracy. (People v. Morante (1999) 20 Cal.4th 403, 416.) Here there were several coordinated acts by Morales and the teenagers.

Morales notes that her associates did not run "out the doors with armloads of clothing." But from Farran's testimony, jurors could infer they had assembled near the exit for that purpose and Morales was the getaway driver. An associate told her where to bring the car as the boys waited for her inside the store with the clothing. They abandoned the merchandise only after learning that store security was pursuing them. Conspirators are "liable whether or not their scheme actually is carried out." (People v. Morante, supra, 20 Cal.4th at p. 417, fn. 5.) "Since burglary arises when the person makes entry with the requisite felonious intent, it is irrelevant that the felony was not subsequently completed." (People v. Anthony M. (1981) 116 Cal.App.3d 491, 501.)

Moreover, Morales's actions in the parking lot showed her consciousness of guilt. When store security agents approached she erratically drove away and then entered the store again to warn her associates. They all left the store together. (People v. Anthony M., supra, 116 Cal.App.3d at p. 501 [flight from the scene supports reasonable inferences of an intent to commit theft and burglary].) The jury could also find that Morales lied when she said they had been trying on clothing, and that false statement supported the other inferences of guilt. (People v. Carrillo (1995) 37 Cal.App.4th 1662, 1669.) The evidence was sufficient.

II. Romero

Morales contends that the trial court "abused its discretion in refusing to strike the prior strike, her prior robbery conviction. We disagree.

A court may strike a prior, but its discretion is limited. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530.) It must determine whether doing so would further justice and be in the interests of society. (Ibid.) It considers the defendant's offenses, record, "background, character, and prospects." (People v. Williams (1998) 17 Cal.4th 148, 161.)

Morales's current offenses involved planning and sophistication. The trial court said there was an aggravating factor. She enlisted juveniles to help her and they may not have committed the offenses without her assistance. Morales also had prior convictions for robbery and shoplifting. She violated her probation and parole conditions and served a prior prison term. The probation report said there were no circumstances in mitigation. There was no abuse of discretion.

III. The Abstract of Judgment

Morales and the Attorney General claim that the abstract of judgment must be corrected because it is inconsistent with the sentence the court imposed. We agree.

An abstract of judgment "does not control if different from the trial court's oral judgment." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Here the court sentenced Morales to four years on count one, two years on count two and four years on count three. It stayed the sentences on counts two and three pursuant to section 654. It said, "so the overall sentence is four years."

The abstract of judgment is incorrect. It shows an aggregate sentence of eight years instead of four. It incorrectly says the sentence on count two was one year and that the sentence on count three was consecutive.

We order the abstract of judgment corrected to conform to the trial court's oral judgment. The trial court shall prepare an amended abstract and forward it to the Department of Corrections. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Kathryne A. Stoltz, Judge

Superior Court County of Los Angeles

______________________________

Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.