Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of San Diego County No. SCD208825 Richard S. Whitney, Judge.
IRION, J.
In these consolidated appeals, Brian Arthur Roman and Kathleen Marquis (defendants) challenge, on multiple grounds, their convictions of conspiracy (Pen. Code, § 182, subd. (a)(4)), grand theft (§ 487, subd. (a)) and multiple counts of burglary (§ 459) based on their participation in a scheme to use forged receipts to return goods to Wal Mart, Inc. stores and collect refunds. Defendants also contend they are entitled to additional conduct credits pursuant to a recent amendment to section 4019. We reverse defendants' convictions on one of the burglary counts, modify Roman's award of conduct credits, and otherwise affirm the judgments.
All further statutory references are to the Penal Code unless otherwise specified.
I
STATEMENT OF THE CASE
We begin by briefly setting forth the nature of the case against defendants. Because the claims of error are numerous and the facts related to each claim are different, we report the facts pertinent to each claim of error in the Discussion section of this opinion.
A. The Amended Indictment
Defendants were charged with conspiracy to defraud another of property (§ 182, subd. (a)(4)), grand theft (§ 487, subd. (a)) and 57 counts of burglary (§ 459). These charges arose out of an alleged conspiracy to "swindle[]" Wal Mart out of more than $18,000.
According to the amended indictment, defendants and two others (Sylvia Henrich Chiaravalloti and Aaron David Woodruff) "operated in close collaboration with one another, employing a sophisticated counterfeit receipt-making scheme to collectively and quietly burglarize 17 area 'WAL-MART' stores, at least 57 times." Specifically, defendants purchased at various Wal Mart stores "customer-loadable debit cards, " which functioned as currency in that they could be used to purchase goods at Wal Mart stores until the balance on the card reached $0. For each "loading" of a debit card, defendants obtained a printed receipt that contained a unique transaction code. Defendants then altered the receipts so that each reflected the purchase of a relatively expensive item (e.g., vacuum cleaner, kitchen mixer, television wall mounts) rather than a debit card. Finally, defendants took the altered receipts and the items whose descriptions they inserted onto the receipts to a Wal Mart store, presented the items for "return, " and obtained "refunds" of cash.
B. The Verdicts and Sentences
The jury found Marquis guilty of conspiracy to defraud another of property, grand theft and 35 counts of burglary. The jury found her not guilty of six counts of burglary; and it deadlocked on the remaining 16 counts of burglary, for which the trial court declared a mistrial.
The jury found Roman guilty of conspiracy to defraud another of property, grand theft and 36 counts of burglary. The jury found him not guilty of seven counts of burglary; and it deadlocked on the remaining 14 counts of burglary, for which the trial court declared a mistrial.
The trial court sentenced Marquis to prison for a total term of seven years and sentenced Roman to prison for a total term of eight years. The court awarded each defendant credit for time spent in local custody, including credits for performance of labor and compliance with rules and regulations pursuant to section 4019.
II
DISCUSSION
A. Identification of Defendants in Surveillance Videos
Defendants contend the trial court erred when it allowed Laura Guerry, a Wal Mart asset protection field investigator, to identify them, Chiaravalloti and Woodruff in surveillance videos. According to defendants, Guerry's identifications were improperly admitted because they were based on comparisons with photographs of defendants and their co-conspirators obtained from the California Department of Motor Vehicles (DMV), not on Guerry's personal knowledge of their appearances. We agree Guerry's identification opinion testimony should not have been admitted but conclude its admission was harmless.
1. Facts
Guerry is an asset protection field investigator for Wal Mart. After Roman notified Wal Mart of the scheme involving use of prepaid debit cards and falsified receipts, Guerry began an investigation. She had never seen defendants in person before trial. Through law enforcement officers, Guerry obtained copies of photographs of defendants, Chiaravalloti and Woodruff that were on file with the DMV.
Guerry used Wal Mart's centralized computer database to compile a list that matched purchases of prepaid debit cards with returns of merchandise, based on use of the same transaction code in both transactions. She discovered 58 separate transactions in which relatively expensive merchandise, such as vacuum cleaners and television wall mounts, was returned with a receipt containing a description of the returned item but a transaction code assigned to a prepaid debit card purchase. Guerry and another Wal Mart investigator testified that vacuum cleaners and television wall mounts are among the items most commonly "missing" or stolen from Wal Mart stores.
Guerry then requested and spent two weeks viewing video surveillance of these return transactions and the debit card purchases to which the transaction codes were originally assigned. By comparing the people in the surveillance videos with the photographs obtained from the DMV, Guerry identified defendants, as well as Chiaravalloti and Woodruff, making debit card purchases and returning items. The surveillance videos captured defendants together in some of the transactions and also entering or exiting the same vehicle in the parking lot.
Before Guerry was allowed to give this identification testimony, the trial court held a hearing outside the presence of the jury in which, over defendants' objections, it ruled that Guerry's testimony was admissible as proper lay opinion.
2. Legal Analysis
Lay opinion testimony is admissible if it is both rationally based on the perception of the witness and helpful to a clear understanding of the witness's testimony. (Evid. Code, § 800.) In particular, an individual who did not witness a crime may identify a defendant from photographs and video surveillance if the individual has prior personal knowledge of the defendant and the testimony will assist the jury in determining the identity issue. (People v. Mixon (1982) 129 Cal.App.3d 118, 128 (Mixon); People v. Perry (1976) 60 Cal.App.3d 608, 612-615 (Perry).) We review a trial court's admission of lay opinion testimony on identification for abuse of discretion. (Mixon, at p. 127.)
The trial court abused its discretion when it allowed Guerry to identify defendants in the surveillance videos because neither criterion for admissibility of lay identification opinion testimony was established. First, Guerry admitted she had never seen either defendant before trial but had only viewed their DMV photographs. She therefore had no "personal knowledge of the defendant[s'] appearance at or before the time the [surveillance videos were] taken." (Mixon, supra, 129 Cal.App.3d at p. 128.) Second, all of the evidence on which Guerry based her opinion — the DMV photographs, the surveillance videos and the appearance of the defendants in the courtroom — was equally available to the jury and could have been evaluated by them just as well as by Guerry. She had no unique or special knowledge about defendants' appearances that would "aid in the determination of the ultimate question of the identity of the culprit[s] and the defendant[s'] guilt or innocence." (Perry, supra, 60 Cal.App.3d at p. 615.) Thus, the surveillance videos should have been presented to the jury without Guerry's opinions on the identities of the persons depicted therein.
Nevertheless, the erroneous admission of Guerry's identification opinion testimony does not require reversal because it is not reasonably probable defendants would have obtained a better result absent the error. (See Cal. Const., art. VI, § 13; People v. Bell (1998) 61 Cal.App.4th 282, 291.) Here, the trial court expressly instructed the jury that in evaluating identification testimony it should "[c]onsider the extent of the witness's opportunity to perceive the matters on which his or her opinion is based...." In closing arguments, both the prosecutor and counsel for Marquis urged the jurors not simply to accept Guerry's opinion but instead to review the surveillance videos and decide for themselves whether defendants were the persons depicted therein. The jury acceded to counsel's urgings and on four days of deliberation asked to review surveillance videos from 29 separate days. The jury's subsequent acquittal of defendants on several counts and inability to reach verdicts on many others dispels any notion that the jury considered itself bound by, or gave undue weight to, Guerry's identification opinions. On this record, we cannot say "that it is reasonably probable that a result more favorable to [defendants] would have been reached in the absence of the error" in admitting Guerry's identification opinion testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Identification of Defendants' Signatures on Return Slips
Defendants contend the trial court erred when it allowed Guerry and Joseph Cargel, a criminal investigator for the San Diego County District Attorney, to identify their signatures on Wal Mart return slips. According to defendants, these identifications were improper because neither Guerry nor Cargel had personal knowledge of defendants' handwriting and neither was qualified as a handwriting expert. We reject this contention.
1. Facts
Before trial began, the trial court ruled that any witness who gave testimony about handwriting would first have to be qualified as an expert. No handwriting expert was ever called to testify.
At trial, Guerry testified that during the investigation she had become "familiar" with signatures on various return slips. She also testified that she recognized some of the signatures she saw as "similar" to others she had seen during the investigation. Guerry never testified that any signature she saw on a Wal Mart return slip was that of either defendant. Whenever the prosecutor asked her a question that might elicit such testimony, the trial court sustained objections from defendants' counsel.
Cargel testified at trial that during the investigation he had obtained copies of defendants' signatures from the DMV and had compared them with the signatures on the Wal Mart return slips. When the signatures obtained from the DMV and those on the return slips were displayed side-by-side on a screen, Cargel testified that he observed certain similarities. Cargel never testified that any signature he saw on a Wal Mart return slip was that of either defendant. Whenever the prosecutor asked him a question that might elicit such testimony, the trial court sustained objections from defendants' counsel.
2. Legal Analysis
Only a handwriting expert or someone with personal knowledge of a supposed writer's handwriting may testify that handwriting on a document is that of the supposed writer. (Evid. Code, §§ 1416, 1418; Spottiswood v. Weir (1889) 80 Cal. 448, 449-450.) Although defendants correctly point out that neither Guerry nor Cargel qualified as an expert or had personal knowledge of defendants' signatures, neither witness ever testified that the signatures they observed on the Wal Mart sales slips belonged to defendants. Indeed, the trial court properly would not allow them to do so. Guerry and Cargel simply testified about their personal observations during the investigation and provided some of the foundation for the admission into evidence of the Wal Mart return slips and the DMV records. These documents allowed the jury to determine whether the signatures on the return slips were those of defendants. (See Evid. Code, § 1417 [trier of fact may determine genuineness of handwriting by comparison of documents]; People v. Rodriguez (2005) 133 Cal.App.4th 545, 554 [jury may determine defendant signed a document by comparing signature on document with signature on authenticated driver's license].) We therefore find no error regarding admission of testimony identifying defendants' signatures.
C. Admission of Evidence Obtained by Unreasonable Searches and Seizures and Ineffective Assistance of Counsel in Failing to Move to Suppress the Evidence
Defendants contend the trial court erroneously admitted certain physical evidence (e.g., laptop computer, receipt printer, rolls of receipt paper, USB flash drive) that had been obtained in violation of their rights to be free from "unreasonable searches and seizures." (U.S. Const., 4th Amend.; see Mapp v. Ohio (1961) 367 U.S. 643, 655 ["all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court"].) According to defendants, this illegally obtained evidence was "[t]he primary evidence of [their] guilt, " and its erroneous admission requires "[r]eversal of all convictions... along with a finding that the items found... are inadmissible at a future trial." Defendants alternatively claim their convictions must be reversed because their trial counsel's failure to move to suppress the illegally obtained evidence constituted ineffective assistance of counsel. We disagree.
1. Facts
Marquis was spotted while driving and arrested by a deputy sheriff pursuant to a warrant. The deputy sheriff handcuffed Marquis and seated her in the back of his patrol car. He contacted Cargel, who searched Marquis's car. On the front passenger floorboard and in the trunk of Marquis' car, Cargel found the following items, among others: a laptop computer, a scanner, a receipt printer, three rolls of receipt paper, a file folder containing Wal Mart receipts and price stickers and a stack of Wal Mart prepaid debit cards. Cargel later impounded Marquis's car.
Roman was arrested when he and Woodruff exited a Wal Mart store with some wall mounts for which neither had paid and for which Roman presented a falsified receipt. Upon his arrest, police searched Roman's pockets and found a USB flash drive.
The hard drive from the laptop computer found in Marquis's car and the USB flash drive found in Roman's pocket were delivered to Jeffrey Lee, a computer forensic examiner who works for the San Diego County District Attorney. Lee testified that on the USB flash drive he found three different software packages that are capable of manipulating images, 99 unique graphic images of Wal Mart receipts in various stages of manipulation and a file titled "fake receipt." On the laptop computer hard drive, Lee also found image manipulation software and more than 700 images of Wal Mart receipts that had been manipulated. Some of these altered images were identical to those found on the USB flash drive. The laptop hard drive also had files containing lists of Wal Mart products, prices and store locations.
2. Legal Analysis
As a threshold matter, defendants forfeited their arguments concerning the legality of the searches and seizures. A motion to test the legality of a search or seizure must be made in the trial court to preserve the issue for appellate review. (§ 1538.5, subd. (m); People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 (Mendoza Tello); People v. Miranda (1987) 44 Cal.3d 57, 80.) Neither defendant moved the trial court to suppress the evidence on the ground that it was obtained through an unreasonable search (§ 1538.5, subd. (a)(1)(A)) or to set aside the indictment on the ground that the only substantial evidence was illegally obtained (§ 995, subd. (a)(1)(B); People v. Scoma (1969) 71 Cal.2d 332, 335 & fn. 2). Nor did defendants object at trial to the admission of any of the evidence they now contend was obtained in violation of their Fourth Amendment rights. "Defendant[s], therefore, cannot now challenge the validity of the search[es] since [they] failed to preserve the issue either by proper objection at trial or by pretrial motion." (Miranda, at p. 81.)
Alternatively, defendants claim their convictions must be reversed because their trial counsel's failure to move to suppress the inculpatory evidence found in the allegedly unconstitutional searches of Marquis's car and Roman's pocket denied them the effective assistance of counsel. (See U.S. Const., 6th Amend. [accused has right "to have the Assistance of Counsel for his defence"]; Yarborough v. Gentry (2003) 540 U.S. 1, 5 ["The Sixth Amendment guarantees criminal defendants the effective assistance of counsel."]; Gideon v. Wainwright (1963) 372 U.S. 335, 342-343 [holding 6th Amend. right to counsel applies in state court criminal trials].) To prevail on their claim of ineffective assistance of counsel, defendants must "prove that [their] Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." (Kimmelman v. Morrison (1986) 477 U.S. 365, 375 (Kimmelman).) We cannot decide defendants' claim on direct appeal "[b]ecause the legality of the search[es] was never challenged or litigated" and "facts necessary to a determination of that issue are lacking." (People v. Cudjo (1993) 6 Cal.4th 585, 627.)
Here, we do not know why trial counsel did not move to suppress the evidence found in Marquis's car and in Roman's pocket. Trial counsel may have known additional facts that were irrelevant to the issues at trial (and possibly prejudicial to defendants) but that may have justified the searches. For example, defendants state in their briefs that when they were arrested, Marquis was on probation and Roman was on parole. Consent to warrantless searches may be imposed as a condition of probation (United States v. Knights (2001) 534 U.S. 112, 118-120; People v. Robles (2000) 23 Cal.4th 789, 795), and "the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee" (Samson v. California (2006) 547 U.S. 843, 857). Thus, based on Marquis's status as a probationer and Roman's as a parolee, their trial counsel might have concluded that a suppression motion would not have been successful because the searches did not violate defendants' diminished Fourth Amendment rights.
The record also suggests other grounds on which the People might have defeated defendants' suppression motion. Defendants acknowledge they had been under investigation for several months and warrants had issued for their arrest, thus making it possible that the incriminating evidence discovered in Marquis's car and in Roman's pocket "ultimately or inevitably would have been discovered by lawful means." (Nix v. Williams (1984) 467 U.S. 431, 444.) Also, after Marquis's arrest the police impounded her car, at which point a lawful inventory search might have uncovered the incriminating evidence. (See Colorado v. Bertine (1987) 479 U.S. 367, 371 ["inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment"].) Because these factual and legal issues were never litigated, however, we cannot determine on direct appeal that a suppression motion would have been "meritorious, " as we must be able to do before we grant relief based on ineffective assistance of counsel. (Kimmelman, supra, 477 U.S. at 375.)
On this record, we cannot conclude that a motion to suppress would have been "meritorious" (Kimmelman, supra, 477 U.S. at p. 375), or that "there simply could be no satisfactory explanation" for trial counsel's decision not to make the motion (People v. Carter (2003) 30 Cal.4th 1166, 1211). Our Supreme Court has cautioned: "An appellate court should not declare that a police officer acted unlawfully, suppress relevant evidence, set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed and the police and prosecution had a full opportunity to defend the admissibility of the evidence." (Mendoza Tello, supra, 15 Cal.4th at p. 267.) We have no such confidence here. Accordingly, we conclude that defendants' "claim of ineffective assistance [of counsel] is more appropriately decided in a habeas corpus proceeding." (Id. at pp. 266-267.)
D. Admission of Roman's Hearsay Statement Implicating Marquis
Marquis contends that all her convictions must be reversed based on the trial court's erroneous admission of testimony that Roman notified Wal Mart of her involvement in the scheme to defraud Wal Mart. According to Marquis, the testimony was "devastating, " and its admission violated her right "to be confronted with the witnesses against [her]" (U.S. Const., 6th Amend.; see Pointer v. Texas (1965) 380 U.S. 400, 403 (Pointer) ["the Sixth Amendment's right of an accused to confront the witnesses against [her]... is made obligatory on the States by the Fourteenth Amendment"]) because she could not cross-examine Roman, who did not testify at trial. We are not persuaded.
1. Facts
At trial, Guerry testified on direct examination that Wal Mart began its investigation after someone telephoned another Wal Mart investigator to report that individuals in the San Diego area were using fraudulent receipts to return merchandise for which they had not paid. Five days later, during cross-examination by Marquis's trial counsel, Guerry testified that the caller identified Marquis as one of the individuals involved in the "scam." During cross-examination by Roman's trial counsel, Guerry admitted that in prior proceedings she testified that she learned Roman was involved in the scam through video surveillance and other documents but "never mentioned the fact [that] Mr. Roman himself had contacted Wal Mart and told them about this." Marquis's trial counsel objected to this testimony on the basis of "Aranda/Bruton."
See Bruton v. United States (1968) 391 U.S. 123, 127-128 (Bruton) (admission of nontestifying codefendant's confession implicating defendant violated defendant's rights under confrontation clause); People v. Aranda (1965) 63 Cal.2d 518, 530-531 (Aranda) (when prosecutor proposes to introduce out-of-court statement of defendant implicating codefendant at joint trial, trial court must: (1) delete identifications of codefendant, if that can be done effectively; (2) sever defendant's and codefendant's trials; or (3) exclude statement, if severance denied and deletion of identifications of codefendant ineffective). To the extent Aranda constitutes a rule governing the admissibility of evidence and requires exclusion of evidence that need not be excluded under the federal Constitution, it has been abrogated by the "Truth-in-Evidence" provision of Proposition 8. (Cal. Const., art. I, § 28, subd. (f)(2); People v. Fletcher (1996) 13 Cal.4th 451, 465.)
Outside the presence of the jury, Roman's trial counsel explained that he elicited the testimony to which Marquis's trial counsel objected in order to impeach Guerry. Marquis's trial counsel objected: "I just don't know how the jury cannot put two and two together and say it was Roman who provided Ms. Marquis' name. And that's very damaging information. That's very damaging it seems to me. I don't know how that prejudice could be cured." The trial court ruled the record was "okay leaving the question and answer the way it is" and advised counsel to "move into a different area at this point."
After the close of evidence, Marquis's counsel moved for a mistrial or a severance on the grounds that "it was from Mr. Roman that [Wal Mart] learned Ms. Marquis was to be considered a suspect in this investigation, [and] that would violate Aranda/Bruton because he was not going to take the stand, and I would not get to cross-examine him." The trial court denied the motion.
2. Legal Analysis
The confrontation clause of the Sixth Amendment guarantees a criminal defendant the right to cross-examine the witnesses against her. (Crawford v. Washington (2004) 541 U.S. 36, 54 (Crawford); Pointer, supra, 380 U.S. at p. 404.) A defendant is denied that right when the prosecution uses a codefendant's out-of-court statement inculpating the defendant at a joint trial at which the codefendant does not testify, even if the trial court instructs the jury to disregard the statement in determining the defendant's guilt. (Bruton, supra, 391 U.S. at pp. 126-128; see also People v. Lewis (2008) 43 Cal.4th 415, 453 [discussing Bruton].) The Bruton rule assumes the codefendant's statement implicating the defendant is an admission that is admissible against the codefendant but is hearsay that is inadmissible against the defendant. (People v. Smith (2005) 135 Cal.App.4th 914, 922.) Bruton does not bar the use of the codefendant's statement against the defendant, however, if the statement is not inadmissible hearsay as to the defendant and "its admission otherwise survives confrontation analysis." (Smith, at p. 922.)
Here, unlike in Bruton, supra, 391 U.S. 123, the content of the telephone call in which Roman notified Wal Mart of Marquis's involvement in the scam was not offered by the prosecution for the truth of the matter asserted, i.e., as evidence of Marquis's guilt. Rather, during cross-examination of Guerry, Roman's counsel elicited testimony that Wal Mart received the telephone call for the purpose of impeaching Guerry by pointing out inconsistencies in her testimony about how she learned Roman was involved in the scam. Thus, Guerry's testimony about Roman's telephone call to Wal Mart was admitted for a nonhearsay purpose, namely, impeachment of Guerry. (See People v. White (1980) 101 Cal.App.3d 161, 170 [evidence of statements witness heard not hearsay when admitted for impeachment purposes]; People v. Kohn (1968) 258 Cal.App.2d 368, 376 [evidence of telephone calls not hearsay when offered to prove calls were made, not to prove truth of anything caller said].) The confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Crawford, supra, 541 U.S. at p. 59, fn. 9.) Hence, the admission of the nonhearsay aspect of Roman's out-of-court statement implicating Marquis — to impeach Guerry by pointing out inconsistencies in her testimony — "raises no Confrontation Clause concerns." (Tennessee v. Street (1985) 471 U.S. 409, 414.) Indeed, since the inconsistency in Guerry's testimony regarding how she learned of defendants' involvement in the scheme to defraud Wal Mart Guerry was at issue, the pertinent witness for confrontation clause purposes was Guerry, not Roman. Accordingly, "[t]he Clause's fundamental role in protecting the right of cross-examination [citation] was satisfied by [Guerry's] presence on the stand." (Ibid.)
Finally, even if the admission of Guerry's testimony about the telephone call from Roman implicating Marquis violated Marquis's Sixth Amendment rights, it would not require reversal of the judgment. Error in admitting a nontestifying codefendant's out-of-court statement implicating the defendant is considered harmless beyond a reasonable doubt when "[t]he testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury." (Brown v. United States (1973) 411 U.S. 223, 231; accord, People v. Burney (2009) 47 Cal.4th 203, 232.) Here, aside from Guerry's testimony about Roman's implication of Marquis in his telephone call to Wal Mart, the evidence of Marquis's guilt included: (1) surveillance videos that showed her making returns to Wal Mart with falsified receipts (see part II.A.1., ante); (2) return slips bearing her signature (see part II.B.1., ante); and (3) the folder of Wal Mart receipts, laptop computer with image manipulation software and images of altered Wal Mart receipts, scanner, receipt printer, receipt printer paper and other incriminating evidence found in her car (see part II.C.1, ante). Since this evidence was overwhelming and largely uncontroverted, we conclude that any error in the admission of Roman's statement implicating Marquis was harmless beyond a reasonable doubt. (Burney, at p. 232; People v. Jefferson (2008) 158 Cal.App.4th 830, 845.)
E. Convictions on Counts 48 and 49
Defendants contend their convictions of burglary on count 49 must be reversed because the convictions were based on the same entry that formed the basis of their convictions of burglary on count 48. We agree.
1. Facts
In counts 48 and 49 of the amended indictment, defendants were charged with burglary for entering the same Wal Mart store on or about October 26, 2008, with the intent to commit theft. At trial, Guerry testified that on that date, Marquis presented two different receipts to return three air purifiers and received a cash refund. The transaction codes on the receipts matched purchases of prepaid debit cards, not air purifiers. The jury convicted defendants of burglary on both counts.
2. Legal Analysis
"Every person who enters any... store... with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459.) "[T]he conduct described and proscribed by section 459 is a single act: entry." (People v. Washington (1996) 50 Cal.App.4th 568, 577.) Here, the evidence shows that on October 26, 2008, Marquis obtained cash refunds from Wal Mart by returning merchandise using two false receipts, but there is no evidence she made more than one entry into the Wal Mart store. "The entry may have been made with the intent to commit two or more felonies but it would constitute only the one burglary." (People v. Kittrelle (1951) 102 Cal.App.2d 149, 155.) Since defendants were convicted of burglary on count 48 based on the one entry shown by the evidence, their convictions of burglary on count 49 based on the same entry must be reversed.
F. Sufficiency of the Evidence to Support Roman's Conspiracy and Burglary Convictions
Roman argues his conspiracy conviction and all but one of his burglary convictions (the one based on the theft of wall mounts for which he was arrested (count 59)) must be reversed because there was no evidence any of the returned items had actually been stolen from Wal Mart. He also argues his burglary convictions on counts 17, 19, 22, 25, 26, 27, 28, 31 and 33 must be reversed because the crimes charged in those counts occurred while he was " 'unavailable' " to commit them. We disagree.
1. Facts
The evidence supporting defendants' burglary convictions consists largely of (1) the surveillance videos that captured defendants, Chiaravalloti and Woodruff using falsified receipts to return merchandise and obtain refunds (see part II.A.1., ante); (2) the return slips defendants, Chiaravalloti and Woodruff signed (see part II.B.1., ante); and (3) the laptop computer, scanner, receipt printer, rolls of receipt paper, Wal Mart receipts, Wal Mart prepaid debit cards and other evidence found when defendants were arrested, including the image manipulation software and falsified Wal Mart receipts discovered on the laptop computer found in Marquis's car and on the USB flash drive found in Roman's pocket (see part II.C.1., ante).
In addition to this evidence, Guerry testified that she had examined approximately 40 of the receipts that defendants used to make returns. Based on this examination, Guerry determined that the receipts defendants used were made of paper thicker than the paper Wal Mart uses to print receipts, that the spacing of the words on the receipts defendants used was different from the spacing on authentic Wal Mart receipts, and that some of the receipts defendants used contained spelling errors that would not have occurred on authentic Wal Mart receipts. When Roman was arrested for taking television wall mounts from a Wal Mart store without paying for them, he presented a similar falsified receipt.
Also pertinent to Roman's challenge to his convictions on counts 17, 19, 22, 25, 26, 27, 28, 31 and 33, is a stipulation among the parties that he was "unavailable" to commit the burglaries charged in those counts. During the time period in which those burglaries occurred, Roman was in prison for a parole violation.
2. Legal Analysis
a. Standard of Review
When a defendant challenges the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319 (Jackson).) "[W]e review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)
b. Evidence to Support Burglary Convictions in General
In challenging the sufficiency of the evidence to support all of his burglary convictions (except that on count 59), Roman contends "there is simply too little evidence to concretely establish guilt, in terms of establishing that items were stolen from Wal Mart." According to Roman, without evidence the returned items had been stolen from Wal Mart, "[a] reasonable trier of fact could not have avoided doubt whether Wal Mart was taking late returns, or returns from some store outside San Diego, or whether some completely different scheme was ongoing. Even if the stock was from outside the Wal Mart store, a return of items Wal Mart stocked or could return or re-sell would provide a[t] best a dubious basis for saying they sustained any specific loss of anything of value, which is the gravamen of even petty theft." Roman thus argues the People's failure to show Wal Mart suffered a loss "is fatal to the judgment." We reject this argument.
The People did not have to prove that the returned merchandise was stolen from Wal Mart because the crime of which Roman was convicted is not theft but burglary. To prove burglary, the People had to prove Roman or a coconspirator (see part II.F.2.c., post) entered a Wal Mart store "with intent to commit grand or petit larceny or any felony." (§ 459.) "[T]he intent to commit any felony (or theft) suffices for burglary." (People v. Hughes (2002) 27 Cal.4th 287, 351 (Hughes).) In particular, a burglary conviction may be based on an entry with intent to commit forgery. (People v. Smith (1966) 63 Cal.2d 779, 791; People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 166, fn. 2.) Here, the trial court instructed the jury that "[a] burglary was committed if the defendant entered with the intent to commit theft or forgery" and also instructed on the elements of theft and forgery. (Italics added.) "[T]he jury need not unanimously decide, or even be certain, which felony defendant intended as long as it finds beyond a reasonable doubt that he intended some felony." (Hughes, supra, 27 Cal.4th at p. 351.) Thus, we must affirm the burglary convictions if the record contains substantial evidence from which the jury could have found beyond a reasonable doubt that Roman (or a coconspirator) entered a Wal Mart store with the intent to commit forgery. (See Jackson, supra, 443 U.S. at p. 319; Albillar, supra, 51 Cal.4th at p. 60.)
We note that although the amended indictment charges burglary based only on intent to commit theft, the People introduced evidence at trial to prove burglary based on intent to commit forgery. Since Roman did not object to this variance in the trial court, he has forfeited his right to object to the variance between pleading and proof. (People v. Maury (2003) 30 Cal.4th 342, 427.)
The evidence of defendants' intent to commit forgery inside Wal Mart stores was overwhelming. Among other ways, forgery may be committed by passing a false receipt with intent to defraud. (§ 470, subd. (c); People v. Venable (1938) 25 Cal.App.2d 73, 74; People v. Johnson (1907) 7 Cal.App. 127, 129.) Here, Wal Mart surveillance videos showed defendants obtaining cash refunds by returning goods and presenting receipts that were not for the goods being returned but were instead for prepaid debit cards. Those receipts were made of thicker paper and had different word spacing than authentic Wal Mart receipts. In addition, the equipment and materials needed to create false receipts — authentic Wal Mart receipts, a scanner, a laptop computer with image manipulation software, a receipt printer and rolls of receipt printer paper — were all discovered in Marquis's car. Furthermore, highly incriminating images of Wal Mart receipts in various stages of manipulation were found on both the laptop computer Marquis had in her car and the USB flash drive Roman had in his pocket. This evidence leaves no reasonable doubt that Roman and the others involved in the scam committed forgery by passing false receipts at Wal Mart stores to obtain cash refunds. Indeed, insofar as the burglary convictions are concerned, "[t]here is no better proof that [Roman or a coconspirator] entered the stores with intent to commit [forgery] than a showing he did in fact commit [forgery] after his entry." (People v. Du Bose (1970) 10 Cal.App.3d 544, 551; accord, People v. Abilez (2007) 41 Cal.4th 472, 508.)
Nevertheless, Roman insists that no burglary was proved. His theory seems to be that because defendants exchanged goods of equal value for cash each time they used a false receipt, Wal Mart broke even; consequently, there was no "victim." Roman's "assertion that no person was actually injured by the forgeries, even if true, presents no defense" (People v. Weitz (1954) 42 Cal.2d 338, 350), however, because the crime of forgery does not require proof of actual loss, damage, or detriment (Buck v. Superior Court (1965) 232 Cal.App.2d 153, 162; People v. West (1939) 34 Cal.App.2d 55, 60). "The crime is completed when the defendant passes the forged [instrument]; he has misrepresented the genuineness of the instrument for the purpose of obtaining cash or property. The intent to defraud is inferred from the very act of passing the [forged instrument]. [Citations.] Intrinsically, the act is inconsistent with any intent other than to defraud." (People v. Wing (1973) 32 Cal.App.3d 197, 200.) Thus, whether Wal Mart broke even or not is irrelevant to whether defendants committed burglary each time they passed a forged receipt at a Wal Mart store. (See ibid. [restitution or repayment irrelevant to question of intent to defraud at time forged document is passed]; People v. Parker (1970) 11 Cal.App.3d 500, 510 [same].)
Proof of actual loss is not required because "[t]he real essence of the crime of forgery... is not concerned with the end, i.e., what is obtained or taken by the forgery; it has to do with the means, i.e., the act of signing the name of another with intent to defraud and without authority, or of falsely making a document, or of uttering the document with intent to defraud." (People v. Neder (1971) 16 Cal.App.3d 846, 852-853.)
c. Evidence to Support Convictions of Conspiracy and of Burglaries Committed When Roman Was Unavailable
Roman also challenges his convictions of conspiracy and the burglaries committed while he was in prison for a parole violation and therefore unavailable to participate in the crimes. According to Roman, he cannot be convicted of those burglaries because "[t]he prosecutor in essence stipulated to an alibi, and presented no specific evidence to justify any rational inference that when [Roman] was out of sight and touch he was in any sense proven to aid and abet any crimes." We disagree, for two reasons.
First, Roman was properly convicted of conspiracy. A conspiracy generally may be proved by an agreement to commit a crime and an overt act in furtherance of the object of the agreement. (§ 184; People v. Russo (2001) 25 Cal.4th 1124, 1131.) Evidence that defendants agreed to and did commit forgery suffices to establish a conspiracy. (E.g., People v. Cavanaugh (1983) 147 Cal.App.3d 1178, 1182; People v. Buckley (1962) 202 Cal.App.2d 142, 148-149 (Buckley); People v. Goldberg (1957) 152 Cal.App.2d 562, 567-569.) Here, the evidence established the commission of numerous overt acts in furtherance of the conspiracy, namely, the passing of false receipts at various Wal Mart stores to return merchandise for cash refunds. (See part II.F.2.b., ante.) There was also evidence from which the jury could infer the existence of an agreement to commit forgery, including: (1) the Wal Mart surveillance videos that showed Roman together with Marquis using false receipts to make returns and getting into and out of the same vehicle; (2) the computer forensic examiner's testimony that he found identical images of altered Wal Mart receipts on Marquis's laptop computer and Roman's USB flash drive; and (3) Roman's theft of television wall mounts from a Wal Mart store and presentation of a forged receipt in the company of Woodruff. (See People v. Cockrell (1965) 63 Cal.2d 659, 667-668 (Cockrell) [conspiracy may be inferred from conduct of defendants in mutually carrying out common criminal objective].) The evidence was therefore sufficient to support Roman's conspiracy conviction.
Second, the conspiracy conviction makes Roman liable for the burglaries that his coconspirators committed while he was in prison. A conspirator is liable for any act that a coconspirator undertakes to further the conspiracy, even if the conspirator does not personally participate in the coconspirator's act. (In re Hardy (2007) 41 Cal.4th 977, 1025-1026; People v. Marsh (1962) 58 Cal.2d 732, 746; Buckley, supra, 202 Cal.App.2d at p. 149.) "Although a defendant's arrest and incarceration may terminate his participation in an alleged conspiracy, his arrest does not terminate, or constitute a withdrawal from, the conspiracy as a matter of law." (People v. Cooks (1983) 141 Cal.App.3d 224, 316.) Rather, once the defendant's participation in the conspiracy is shown, it will be presumed to continue unless he is able to prove, as a matter of defense, that he effectively withdrew from the conspiracy and communicated his withdrawal to the coconspirators. (People Crosby (1962) 58 Cal.2d 713, 730-731.) Roman introduced no evidence that he informed Marquis, Chiaravalloti, or Woodruff that he withdrew from the conspiracy to defraud Wal Mart. Indeed, the facts that after his release from prison Roman stole television wall mounts from Wal Mart and presented a false receipt in the company of Woodruff and had a USB flash drive with images of falsified Wal Mart receipts in his pocket strongly suggests otherwise. "Consequently the jury could reasonably find that [Roman] remained a member of the conspiracy even while in prison." (People v. Lowery (1988) 200 Cal.App.3d 1207, 1221.)
G. Instruction of the Jury with CALCRIM No. 376
Roman argues the trial court erred when, using a modified version of CALCRIM No. 376, it instructed the jury it could find defendants guilty of conspiracy, grand theft, or burglary based on their possession of stolen property only if other evidence tended to prove their guilt. According to Roman, an inference of guilt based on possession of stolen property was not justified as to all 59 counts because the evidence showed possession of stolen property on only one occasion. We reject this argument.
1. Facts
The prosecutor requested that the trial court instruct the jury with a modified version of CALCRIM No. 376, based on the incident when "Roman walk[ed] out of the store with the wall mounts and [did]n't pay for them." Marquis's counsel stated the instruction "seems pretty redundant. This is not a receiving stolen property case.... I don't see why this applies." When the court asked the prosecutor why the instruction was needed, he explained that Roman's theft of the television wall mounts "serves as an example of how the whole thing operated." After Marquis's counsel suggested that they "defer [CALCRIM No. ]376 and ask [the prosecutor] to fill in the blanks and give us a clear idea, " the court and counsel moved on to discuss the remaining instructions.
After the close of evidence, the trial court instructed the jury with a modified version of CALCRIM No. 376. There was no objection from counsel.
The trial court instructed the jury: "If you conclude the defendant knew he or she possessed property and conclude the property had in fact been recently stolen, you may not convict the defendant of any of the counts based on those facts alone. However, if you also find that supporting evidence tends to prove his or her guilt, then you may conclude the evidence is sufficient to prove he or she committed conspiracy, grand theft, or burglary. The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how[, ] where and when the defendant possessed the property along with any other relevant circumstances tending to prove his or her guilt of conspiracy, grand theft, or burglary. [¶] Remember, you may not convict the defendant of any crime unless you are convinced that each fact essential to th[e] conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
2. Legal Analysis
As a threshold matter, Roman forfeited his claim that the trial court erred by instructing the jury with CALCRIM No. 376. To preserve a claim of instructional error, a defendant generally must object to the giving of the instruction in the trial court. (E.g., People v. Lee (2011) 51 Cal.4th 620, 638; People v. Valdez (2004) 32 Cal.4th 73, 137; People v. Guiuan (1998) 18 Cal.4th 558, 570.) Roman has not directed us to any objection in the record. The pages of the reporter's transcript he cites in his brief are those on which the trial court read the instruction to the jury, and they contain no objection from counsel. The only other mention of CALCRIM No. 376 we found in the record occurred during the jury instruction conference, when Marquis's trial counsel expressed uncertainty whether the instruction applied and counsel agreed to defer further discussion to allow the prosecutor "to fill in the blanks and give us a clear idea." Not having objected in the trial court, Roman may not complain on appeal that the giving of CALCRIM No. 376 was erroneous.
Even if Roman had preserved his claim of instructional error for appeal, it would fail on the merits. Instruction with CALCRIM No. 376, which permits an inference of guilt to be drawn from possession of stolen property only when other evidence also tends to show defendant committed a theft-related crime, is appropriate in cases charging grand theft and burglary. (People v. Gamache (2010) 48 Cal.4th 347, 375 (Gamache) [robbery and burglary]; People v. McFarland (1962) 58 Cal.2d 748, 752, 754-755 [grand theft and burglary].) The instruction thus applied, at the very least, to count 2 (grand theft) and count 59 (burglary), which were based directly on the incident during which Roman, in the company of Woodruff, took television wall mounts from a Wal Mart store without paying for them, presented a falsified receipt and was arrested.
Instruction with CALCRIM No. 376 was also proper as to count 1 (conspiracy) and the other 56 burglary counts. Roman's possession of the stolen television wall mounts constituted circumstantial evidence that raised an inference of guilt when that possession was considered in connection with other evidence tending to prove his guilt on those counts. For example, Roman's presentation of a falsified receipt, the presence of a coconspirator (Woodruff), and his theft of an item often missing from Wal Mart inventories tended to show Roman was guilty of conspiracy and the other burglaries, which were perpetrated by strikingly similar means. (See Cockrell, supra, 63 Cal.2d at pp. 667-668 [conspiracy may be inferred from conduct of defendants in mutually carrying out common criminal objective]; People v. Rodriguez (1970) 10 Cal.App.3d 18, 33-35 & fn. 8 [theft of same type of item in similar locale by same sequence of events is circumstantial evidence of common plan or scheme].) Therefore, instructing the jury with CALCRIM No. 376 was proper as to all counts against Roman. (See Gamache, supra, 48 Cal.4th at p. 375 [proper to instruct jury with CALJIC No. 2.15 (now CALCRIM No. 376) when defendant possessed stolen property and there is "at least some corroborating evidence" of guilt of related offense].)
Finally, as we have explained, the evidence supporting Roman's convictions on the conspiracy and burglary counts was voluminous and compelling. (See part II.F., ante.) Any error in extending CALCRIM No. 376 beyond the counts based directly on Roman's theft of television wall mounts from Wal Mart (i.e., beyond count 2 (grand theft) and count 59 (burglary)) was therefore harmless. (See Gamache, supra, 48 Cal.4that p. 376 [error in extending CALJIC No. 2.15 (now CALCRIM No. 376) to murder charge was harmless when "[c]opious evidence" aside from defendant's possession of victim's property established his guilt of murder].)
H. Cumulative Error
Defendants contend the cumulative effect of the trial court's errors denied them a fair trial and requires reversal of their convictions. Aside from the erroneous convictions on count 49 (burglary), which we are reversing (see part II.E., ante), we have found only one error, namely, the admission of Guerry's identifications of defendants in Wal Mart surveillance videos. Since that error was harmless (see part II.A.2., ante), however, we reject defendants' claim that the cumulative effect of error by the trial court denied them a fair trial and requires reversal of all convictions. (See, e.g., People v. Butler (2009) 46 Cal.4th 847, 885 [no cumulative error when court found "no substantial error in any respect"]; People v. Cole (2004) 33 Cal.4th 1158, 1235-1236 [no cumulative error when assumed errors were "nonprejudicial"]; People v. Johnson (1992) 3 Cal.4th 1183, 1255 [no cumulative error when only "minor errors" occurred at trial].)
I. Conduct Credits
Defendants contend they are entitled to additional conduct credits based on an amendment to section 4019 that took effect after they were sentenced but before their judgments became final. The People contend defendants are not entitled to additional conduct credits because the changes to section 4019 were not retroactive. We agree with defendants.
1. Facts
Defendants were sentenced on October 22, 2009. Marquis was awarded 242 days of credit for time served, consisting of 162 days actually spent in custody and 80 days of conduct credits under the version of section 4019 then in effect. Roman was awarded 423 days of credit, consisting of 283 days actually spent in custody and 140 days of conduct credits under the version of section 4019 then in effect.
On March 14, 2011, Marquis moved the trial court to award her an additional 82 days of conduct credits pursuant to an amendment to section 4019 that took effect January 25, 2010. The trial court granted the motion and increased Marquis's award of credit for time served to a total of 324 days.
2. Legal Analysis
A defendant sentenced to prison is entitled to credit against the prison term for all days spent in local custody before sentencing that are attributable to the same conduct. (§§ 2900, subd. (c), 2900.5, subds. (a), (b); People v. Buckhalter (2001) 26 Cal.4th 20, 30.) Such a defendant may also earn so-called "conduct credits" for satisfactory performance of assigned labor and compliance with rules and regulations during local custody. (§ 4019, subds. (b), (c); People v. Cooper (2002) 27 Cal.4th 38, 40.)
The version of section 4019 in effect when defendants were sentenced allowed conduct credits to accrue at the rate of two days for every four days spent in local custody, so that "if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (Stats. 1982, ch. 1234, § 7, p. 4554.) Effective January 25, 2010, section 4019 was amended to provide qualifying defendants with increased conduct credits of two days for every two days spent in local custody, so that "if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody." (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, p. 5271.)
Section 4019 was amended again, effective September 28, 2010, to reinstate the conduct credit provisions that applied before the January 25, 2010 amendment took effect; but the September 28, 2010 amended version applies only to local custody served by defendants for crimes committed on or after September 28, 2010. (§ 4019, subd. (g); Stats. 2010, ch. 426, § 2.) The most recent amendment to section 4019 is inapplicable to this case because defendants committed their crimes before September 28, 2010.
As the parties recognize, the issue whether the January 25, 2010 amendment to section 4019 applies to defendants who earned conduct credits before January 25, 2010, but whose judgments were not yet final on that date, is currently pending before the California Supreme Court. (See, e.g., People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782 [holding amended § 4019 applies retroactively to judgments not yet final]; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808 [same]; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [same]; contra, People v. Eusebio (2010) 185 Cal.App.4th 990 , review granted Sept. 22, 2010, S184957; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.)
While we await the Supreme Court's decision, we adopt the majority view of the intermediate appellate courts that the January 25, 2010 amendment applies retroactively. Accordingly, Roman is entitled to an additional 142 days of conduct credits (for a total of 282 days of conduct credits), and the judgment against him must be modified to award these credits. Marquis has already been awarded the additional conduct credits to which she is entitled, and no further modification of the judgment against her is needed with regard to credit for time served.
DISPOSITION
Defendants' convictions on count 49 (burglary) are reversed. The judgment against Roman is modified to award an additional 142 days of conduct credits under section 4019, for a total credit of 565 days for time served. In all other respects, the judgments are affirmed.
The trial court is directed to prepare amended abstracts of judgment for both Marquis and Roman that delete their convictions and associated sentences on count 49 (burglary). The amended abstract of judgment for Roman shall also include the additional conduct credits under section 4019 awarded above. The court shall then forward certified copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: McINTYRE, Acting P., J., O'ROURKE, J.