Filed 9/25/15 P. v. Martinez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067916
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. VCF243140C)
                   v.

VALERIE MARTINEZ,                                                                        OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Valeriano
Saucedo, Judge.
         Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P. J., Detjen, J. and Smith, J.
                                    INTRODUCTION
       Following a jury trial, appellant was convicted of conspiracy to commit second-
degree commercial burglary (Pen. Code, §§ 182, subd. (a)(1) & 459, count 1), grand theft
of personal property (Pen. Code, § 487, subd. (a), counts 2 and 3), and second-degree
commercial burglary (Pen. Code, § 459, counts 4, 5, 7 and 9).1 The court granted
appellant probation for a period of three years, subject to various terms and conditions.
       On appeal, appellant contends there is insufficient evidence to support the jury’s
finding that she conspired to commit second-degree commercial burglary. We disagree
and affirm the judgment.
                                          FACTS
Prosecution Case
       In September 2010,2 Jimmy Johnson, a regional loss prevention manager for CVS
Pharmacies, noticed a large increase in the amount of “shrink” at a CVS store located at
2135 North Dinuba Boulevard in Visalia, California. Shrink is inventory that is supposed
to be in the building but is not due to loss, theft, or paperwork issues. A $116,000 shrink
was posted in September 2010, compared to an average of $60,000. Johnson was unable
to find inaccuracies or irregularities in the accounting or inventory that would explain the
loss. When he examined surveillance video for the month of September, he noticed that
on September 9, five different customers left the store without paying for bags of
merchandise. Similar incidents occurred on September 1.
       On September 21, Johnson surveilled the CVS store. From the parking lot, he
observed eight individuals leave the store with unpaid merchandise. Appellant and her
shift supervisor, Amanda Hooley, were on duty at the CVS store on September 9 and 21.


1      The jury was unable to reach a verdict on counts 6 and 8, appellant was found not
guilty on count 10.
2      Date designations in the factual summary are to the year 2010.


                                             2.
       On October 6, Johnson, in conjunction with the Visalia Police Department and
Detective Brian Young, conducted a surveillance operation at CVS. Appellant and
Hooley were scheduled to be on duty that evening. Johnson set up video cameras inside
the store and had two CVS employees notify him when individuals previously identified
as shoplifters entered the store. He then tracked their movements on video. When the
suspects left the store, the CVS employees would contact Visalia police officers and
provide them with a description of the suspects and their vehicles. Visalia police would
initiate a traffic stop of suspects they determined stole store merchandise and would
escort the suspects back to CVS for police questioning.
       On the evening of October 6, 14 people were taken into custody for shoplifting at
the CVS store. The total amount of stolen merchandise recovered was approximately
$4,395.
       Nicole Amador (Counts 1, 2 and 4)
       Appellant was charged with conspiring with Nicole Amador to commit second-
degree burglary. Amador is appellant’s cousin. On October 6 at approximately 8:00
p.m., Amador claimed she went to the CVS store to change cars with her brother-in-law,
Oscar Uvalle. Amador parked her vehicle and went into CVS to go shopping.
Surveillance video showed Amador walking towards the back of the store, directly
behind appellant. Amador was later seen leaving the store with a shopping cart full of
unpaid merchandise.
       Detective Young made contact with Amador as she was loading merchandise into
her vehicle, and escorted her and Uvalle back inside the store. During police questioning,
Amador told Detective Young she had stolen from the CVS store on 10 previous
occasions. Amador had loaned appellant $60 the week prior to the incident. Appellant
called her on October 6 and told her to come down to the store to “get what she needed.”
At trial, Amador denied telling Detective Young that appellant contacted her to come get



                                            3.
things she needed from the store. She also could not recall whether she loaned appellant
money.
         Visalia Police Department Officer Robert Gonzales was present when Amador
was taken into custody. Officer Gonzales testified that when Amador was searched, a
piece of paper was discovered on her with the pre-printed label “Grocery List” across the
top. The names “Val” and “Amanda” were handwritten across the top of the list. The list
contained various items Officer Gonzales characterized as items Amador intended to
steal.
         Oscar Uvalle
         Oscar Uvalle testified he drove to the CVS store on October 6 to meet Amador.
He went inside the store to get some items and walked out without paying for various
items he selected. Uvalle was stopped by police as he was loading stolen merchandise
into his vehicle. He denied that anyone told him to come to the store to steal, or that he
planned to steal merchandise prior to entering the store.
         Yolanda Serrano
         On October 6, at approximately 9:58 p.m., Visalia Police Department Sergeant
Randy Lentzner stopped Yolanda Serrano’s vehicle pursuant to the burglary
investigation. Serrano had bags full of CVS merchandise in her possession. She
admitted to Sergeant Lentzner that she did not purchase the merchandise, and stated that
her friend Valerie, who worked in the store, had given the items to her.
         During police questioning, Serrano related that she received a phone call from
appellant telling her to come to the store that evening and pick up some items because
appellant was upset with her manager. When Serrano got to the store, appellant told
Serrano to take several bags full of merchandise. Serrano also related that appellant told
her to take some medicine without purchasing it.
         At trial, Serrano initially testified that she could not recall being at CVS on
October 6 or that she was arrested that evening. Although she later recalled being

                                                4.
arrested, she did not recall telling officers that the stolen merchandise in her vehicle was
given to her by a friend named Valerie.
       Robert Ortiz
       Robert Ortiz testified that he went to the CVS store on the night of October 6 to
purchase diapers. He walked out of the store, but returned to grab a bottle of laundry
detergent, which he took without paying for. Ortiz and his friend, Alfredo Lopez, left
CVS in Lopez’s vehicle. They were subsequently stopped by Visalia police officers and
transported back to CVS for questioning.
       During police questioning, Ortiz stated that he received a telephone call from
appellant telling him to come to the CVS store. When he went to the store, appellant
directed him to a bag of merchandise. He maintained that Lopez removed the bag from
the store. At trial, Ortiz testified he could not recall whether he told police appellant
called him and told him to come to the store.
       Maria Lopez
       On the night of October 6, Maria Lopez went to the CVS store with her daughter,
Alejandra Lucatero. Lopez took items from the store without paying, and was later
stopped and questioned by police. At trial, Lopez could not recall whether she told
Officer Gonzales during police questioning that her daughter had received a phone call
from a friend at CVS, telling her to come to the store to steal merchandise on October 6.
       Alejandra Lucatero
       On October 6, Alejandra Lucatero went to the CVS store with her mother, Maria
Lopez. Lucatero took various items from the store, put the items into a bag, and left the
store without paying. At trial, Lucatero denied telling her mother that a friend from CVS
called her and told her to go to the store on the evening of October 6 to steal store
merchandise. She also testified that prior to October 6, she had never met appellant.




                                              5.
       Alfredo Lopez
       Alfredo Lopez was stopped by police on the night of October 6. He stole various
items of merchandise from the CVS store that evening.
       Mark Morales
       Mark Morales, a former CVS employee, testified that on the evening of October 6,
he decided to the go the CVS store with his cousin. Morales walked out of the store
without paying for various items. At trial, he could not recall whether anyone called him
and told him it was a good time to steal things from the store.
       Amanda Hooley
       Shift Supervisor Amanda Hooley was questioned by police on October 6. Hooley
related that she knew her mother-in-law, Yolanda Serrano, had been stealing from CVS
for the past few months and that Serrano stole store merchandise on the night of
October 6. At trial, Hooley invoked the Fifth Amendment in response to questions about
her involvement in the October 6 burglaries.
Defense Case
       Ashely Huskins, appellant’s former coworker at CVS, testified in appellant’s
defense. Huskins testified CVS policy prohibited employees from detaining or chasing
after shoplifters because the store was in an unsafe neighborhood.
       Stephanie Cortez, who had known appellant for 10 years, also testified in her
defense. Cortez considered appellant to be a trustworthy person, but testified that
appellant would help others at her own expense.
                                      DISCUSSION
       The test of sufficiency of the evidence is whether, reviewing the whole record in
the light most favorable to the judgment below, substantial evidence is disclosed such
that a reasonable trier of fact could find the essential elements of the crime beyond a
reasonable doubt. (People v. Delgado (2008) 43 Cal.4th 1059, 1067; People v. Johnson
(1980) 26 Cal.3d 557, 578; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)

                                             6.
Substantial evidence is evidence which is “reasonable, credible, and of solid value.”
(People v. Johnson, supra, 26 Cal.3d at p. 578.) In reviewing a record for substantial
evidence, an appellate court must not reweigh the evidence (People v. Culver (1973)
10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual
conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96
Cal.App.3d 353, 367).
       An appellate court can only reject evidence accepted by the trier of fact when the
evidence is inherently improbable and impossible of belief. (People v. Maxwell (1979)
94 Cal.App.3d 562, 577.) Our sole function is to determine if any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
(Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Marshall (1997) 15 Cal.4th 1,
34.)
       Appellant contends there was insufficient evidence to support the jury’s finding
that she conspired to commit second-degree commercial burglary. She specifically
asserts the evidence was insufficient to show she conspired with Amador to commit
burglary, instead, she contends she passively overlooked Amador’s theft. We disagree.
       Appellant was convicted of conspiracy to commit second-degree commercial
burglary. Burglary is the entry of a structure with the intent to commit petit larceny or
any felony. (Pen. Code, § 459.) “Pursuant to section 182, subdivision (a)(1), a
conspiracy consists of two or more persons conspiring to commit any crime.” (People v.
Morante (1999) 20 Cal.4th 403, 416, fn. omitted.) A conviction for conspiracy under
section 182, subdivision (a)(1) “requires proof that the defendant and another person had
the specific intent to agree or conspire to commit an offense, as well as the specific intent
to commit the elements of that offense, together with proof of the commission of an overt
act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy.”
(People v. Morante, supra, at p. 416.)



                                              7.
      In support of its conspiracy charge against appellant, the prosecution introduced
Amador’s statements to Detective Young made during police questioning. Amador
loaned appellant $60 during the week prior to October 6. On October 6, Amador told
Detective Young that appellant called her and told her to come to the CVS that evening
to “get what she needed.” At trial, Amador denied that appellant contacted her to tell her
to come to CVS to steal.
      Penal Code section 1111 provides that a conviction cannot be based upon the
testimony of an accomplice unless that testimony is corroborated by other evidence
tending to connect the defendant with the commission of the crime. “‘“[T]estimony”
within the meaning of ... section 1111 includes all oral statements made by an accomplice
or coconspirator under oath in a court proceeding and all out-of-court statements of
accomplices and coconspirators used as substantive evidence of guilt which are made
under suspect circumstances. The most obvious suspect circumstances occur when the
accomplice has been arrested or is questioned by the police.’ [Citation.]” (People v.
Williams (1997) 16 Cal.4th 153, 245, original italics.)
      The corroborating evidence required by Penal Code section 1111 may be slight
and entirely circumstantial and may be entitled to little weight standing alone. It need not
corroborate every fact to which the accomplice testified or establish all the elements of
the offense. It must, however, tend to implicate the defendant in some degree and relate
to some fact which is an element of the crime. It also must be independent of—and
require no interpretation or direction from—the statements of the accomplice. (People v.
Hayes (1999) 21 Cal.4th 1211, 1270-1271; People v. Szeto (1981) 29 Cal.3d 20, 27.) We
do not disturb the jury’s finding on the issue unless the corroborating evidence should not
have been admitted or did not reasonably tend to connect the defendant with the
commission of the crime. (People v. Szeto, supra, at p. 27.)
      We find the prosecution presented sufficient evidence to corroborate Amador’s
statements to police. The thefts discovered by Loss Prevention Manager Johnson and

                                             8.
Visalia police all occurred on dates appellant and her shift manager, Hooley, were on
duty.
        When police searched Amador after she was taken into custody, a piece of paper
labeled “Grocery List” was discovered on her person. The names “Val” and “Amanda”
were handwritten across the top. A careful examination of the exhibits shows that
numerous items of stolen merchandise recovered from Amador on October 6 match items
on the grocery list, including, a dog pillow, Beggin’ Strips, deodorant, a fog machine, and
hairspray. Considering that Amador stole CVS merchandise on October 6, while
appellant was on duty, this list strongly corroborates Amador’s initial statement to police
that she conspired with appellant to steal CVS merchandise that evening.
        In addition to the grocery list, Amador’s statement was corroborated by the
statements of three independent witnesses, Ortiz, Serrano, and Maria Lopez. During
police questioning, these witnesses stated that appellant told them to come to CVS to
steal on the evening of October 6. We find sufficient evidence was presented to find
appellant and Amador agreed to, and had the specific intent to commit, second-degree
commercial burglary.
        We also find sufficient evidence was presented to find that an overt act was
committed in furtherance of the conspiracy. Surveillance video taken on the night of
October 6 inside the CVS store shows Amador following behind appellant. Amador is
later seen leaving the store with a shopping cart containing unpaid merchandise. Amador
admitted she had not paid for the CVS merchandise in her possession.
        Amador’s statement to police that appellant told her to come to the CVS store on
October 6 to “get what she needed,” in addition to surveillance video showing her
entering and leaving the store with unpaid merchandise, plainly demonstrates overt acts
in furtherance of the conspiracy. (People v. Ragone (1948) 84 Cal.App.2d 476, 480 [An
act, which may be otherwise lawful, completes the crime of conspiracy when it is done
for the purpose of effecting the object of the unlawful agreement]; People v. Nance

                                             9.
(1960) 181 Cal.App.2d 147 [entry into a house was an overt act in furtherance of
agreement to burglarize the home]; People v. Keller (1963) 212 Cal.App.2d 210, 220
[coconspirators going to vicinity of store they planned to burglarize was an overt act].)
       The record shows substantial evidence of a conspiracy between appellant and
Amador to commit second-degree commercial burglary, and an overt act in furtherance
thereof.
                                         DISPOSITION
       The judgment is affirmed.




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