Filed 8/5/14 P. v. Brown CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                     DIVISION 1


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139499
v.
ANDREW THOMAS BROWN,                                                 (San Mateo County
                                                                     Super. Ct. No. SC077982)
         Defendant and Appellant.

                                                   INTRODUCTION
         A jury convicted defendant Andrew Thomas Brown of two counts of second
degree robbery (Pen. Code, § 212.5, subd. (c));1 two counts of assault with a deadly
weapon (§ 245, subd. (a)); second degree burglary (§ 460, subd. (b)); and petty theft with
priors (§ 666). On appeal, defendant contends the trial court prejudicially erred in
admitting evidence of three prior theft convictions not only for impeachment, but also to
show intent to steal, and giving corresponding jury instructions allowing such use of the
priors. The Attorney General concedes error in admitting two of the prior convictions for
the purpose of proving intent, but maintains any error was harmless. We agree, and
affirm the judgment.
                                                   BACKGROUND
         On the evening of March 30, 2013, Freddie Persons and Omari Logan were
working as loss prevention officers at a Safeway supermarket in Daly City. They wore
plain clothes and carried concealed badges.
         1
             All further statutory references are to the Penal Code unless otherwise indicated.


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       According to prosecution witnesses, defendant entered the Safeway at 8:14 p.m.
and pushed his cart to the frozen meat section. Persons testified he and Logan were
alerted by the store manager that defendant was stuffing frozen meat into his overalls,
and Persons, approaching defendant to investigate, witnessed him stuffing one last steak
into his clothes.
       Under store policy, Persons and Logan had to wait until defendant left the store
before they could confront him. A surveillance video showed defendant exiting the store
at 8:19 p.m. with a bulge under his chest. Persons and Logan followed defendant to a
nearby parking lot, identified themselves as Safeway store security, and displayed their
badges. Defendant, when he testified, admitted Persons identified himself, but denied
that he displayed a badge. Accordingly, defendant claimed he thought the loss
prevention officers were “young thugs” who intended to rob him. Persons told defendant
he had to return to the store, and if he had stolen more than $100 worth of merchandise,
they would have to call the police. According to Persons, defendant responded, “ ‘Yeah,
I know.’ . . . “ ‘I know, I was hungry.’ ”
       After showing reluctance and saying he did not want to go back to jail, defendant
pulled two packages of meat from his overalls. Persons testified that when he bent down
to retrieve the meat, defendant pulled out a knife and swung it at the two loss prevention
officers.2 Persons and Logan followed defendant as he walked away, but kept at a
distance to avoid being cut by the knife. Persons then called 911 and can be heard on the
911 tape, played for the jury, describing the knife incident to the operator and later saying
“ ‘Hold on, don’t go too soon, I don’t trust him, that knife, I’m not about to get
stabbed.’ ” Defendant claimed he did not have a knife.
       Daly City Police Officer Nicholas Ottoboni then arrived. Standing beside his
police cruiser with his gun drawn, he ordered defendant to stop. Defendant was taken
into custody and searched. No knife was found on him, nor was one found along his
path, covering about a mile, from Safeway to the site of arrest. In a police interview


       2
           Logan thought the blade was a box cutter.


                                              2
taken in the station, defendant said he had promised to provide food for an Easter party
he was to attend the following day but had no money to buy the food. Defendant, during
the interview, admitted, “I went in the Safeway and I stole some meat.” He admitted the
same thing at trial, saying “I went and stole some meat” and he had gone into the store
for that specific purpose. The total value of the meat confiscated from defendant was
between $160–$170.
       The San Mateo District Attorney charged defendant with two counts of robbery,
two counts of assault with a deadly weapon, one count of second degree burglary, and
one count of petty theft with prior thefts.
       Before trial, the prosecutor filed a motion in limine to introduce evidence of 11
prior convictions to impeach defendant, should he testify, and to show intent to steal.
After a hearing, the court allowed three of the priors—for felony second degree
burglaries in 1998 and 2005, and felony theft with priors in 2010—for both purposes.
       At the close of evidence, the trial court instructed the jury, pursuant to CALCRIM
No. 316,3 it could consider the prior convictions in evaluating defendant’s credibility.
The court also instructed the jury, pursuant to CALCRIM No. 375,4 it could consider the
convictions in determining whether defendant had an intent, plan, or scheme to steal.
       After less than a day of deliberations, the jury found defendant guilty of all
charges. The trial court thereafter sentenced defendant to an aggregate term of four years
in prison. Defendant filed a timely notice of appeal and challenges only his convictions
for robbery and assault.



       3
          The jury was instructed: “If you find that a witness has been convicted of a
felony, you may consider that fact [only] in evaluating the credibility of the witness’s
testimony. . . . It is up to you to decide the weight of that fact and whether that fact
makes the witness less believable.” (CALCRIM No. 316.)
        4
          The jury was instructed: “In evaluating this evidence, consider the similarity or
lack of similarity between the uncharged [offenses] . . . and the charged offense[s].
[¶] Do not consider this evidence for any other purpose except for the limited purpose of
[intent or plan or scheme to steal].”


                                              3
                                        DISCUSSION
       Defendant does not dispute that the prior convictions were properly admitted for
impeachment. Rather, his sole contention on appeal is that the trial court erroneously
admitted the convictions as evidence of intent to steal under Evidence Code section 1101
and gave correlating instructions allowing the jury to consider the convictions for this
purpose.5 The Attorney General largely concedes error on the ground the priors were not
sufficiently similar to the charged offenses.6 Thus, the issue on appeal is whether the
admission of the prior thefts to prove intent, and the correlating instruction, constituted
prejudicial error, requiring reversal, or was harmless. (See People v. Watson (1956)
46 Cal.2d 818, 836 (Watson) [judgment reversed only when error is prejudicial].)
       Even without consideration of the priors, the “direct and circumstantial evidence
against [defendant regarding his intent or plan to steal and assault convictions] in this
case was both virtually uncontradicted and overwhelming.” (People v. King (2010)
183 Cal.App.4th 1281, 1303; see also People v. Davis (2009) 46 Cal.4th 539, 603; People
v. Foster (2010) 50 Cal.4th 1301, 1335.) Defendant admitted to stealing the meat and to
having that purpose when he entered the Safeway. He testified he wanted food for a
picnic the following day, but did not have money to pay for it. He looked to see if
anyone was watching while stuffing the steaks into his overalls and then walked out of
the store without paying for them. In fact, he testified he knew it would be stealing if he
left the store “threshold” with the meat in his overalls. The testimony of the loss



       5
           “Nothing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact (such as
. . . intent . . .) other than his or her disposition to commit such an act.” (Evid. Code,
§ 1101, subd. (b).)
         6
           The Attorney General contends one of the priors, the 2010 theft conviction, was
similar and therefore properly admitted on intent. As defendant testified at trial, he stole
cans of Red Bull from a Safeway in Half Moon Bay. We agree this prior was properly
admitted as to intent, but note the instruction allowed its use not only for intent, but also
for plan and scheme to steal. In any case, there was no prejudice for the reasons we
discuss above.


                                              4
prevention officers also established defendant committed the crimes with which he was
charged. Moreover, their testimony was corroborated by the 911 tape.
       Accordingly, allowing evidence of the three prior theft convictions for purposes
other than impeachment, and providing correlating jury instructions, was harmless,
whether assessed under the Watson standard (Watson, supra, 46 Cal.2d at p. 836 [reversal
required if it is reasonably probable defendant would have had a more favorable result
absent the error]), or under the Chapman standard (Chapman v. California (1967)
386 U.S. 18, 24 [reversal required unless error is harmless beyond a reasonable doubt]).
There, likewise, was no infringement of defendant’s due process rights. (See People v.
Foster, supra, 50 Cal.4th at p. 1335 [given overwhelming evidence regarding defendant’s
identity, “any error in the instruction’s reference to the evidence as relevant to prove
defendant’s identity as the perpetrator would not constitute a violation of defendant’s due
process rights, because the instruction did not ‘infect[] the entire trial.’ ”].)
                                         DISPOSITION
       The judgment is affirmed.



                                                    _________________________
                                                    Banke, J.


We concur:


_________________________
Dondero, Acting P. J.


_________________________
Becton, J.



       
         Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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