Filed 7/3/14 P. v. Anthony CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059097

v.                                                                       (Super.Ct.Nos. FSB1001370 &
                                                                          FWV1203150)
STEVE EMMANUEL ANTHONY, JR.,
                                                                         OPINION
         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,

Judge. Affirmed.

         Patricia M. Ihara, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, Eric Swenson, and Barry

Carlton, Deputy Attorneys General, for Plaintiff and Respondent.




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                                              I

                                    INTRODUCTION

       On April 18, 2013, a jury found defendant and appellant Steve Anthony, Jr., guilty

of two counts of second degree burglary under Penal Code1 section 459. The trial court

sentenced defendant to three years in state prison for count 1 and to a consecutive eight

months for count 2. Defendant had a trailing probation revocation case involving a

violation of Health and Safety Code section 11379.2, sale or possession for sale of

ketamine. The court sentenced defendant to a concurrent three-year state prison term on

the trailing case.

       On appeal, defendant contends that his conviction for one of the burglaries is not

supported by substantial evidence and the trial court erred in sentencing him to state

prison instead of county jail. For the reasons set forth below, we shall affirm the

judgment.

                                             II

                                STATEMENT OF FACTS

       On July 21, 2012, at about 4:00 p.m., defendant attracted the attention of a Macy’s

sales associate Katherine Stachurski in Rancho Cucamonga. Stachurski called security.

Based on her call, Loss Prevention Detective Daniel Renteria used the store’s video

monitoring system to find defendant; he was approaching the Diesel clothing display.

After locating defendant, Renteria zoomed in on a pair of Diesel jeans lying near


       1       All statutory references are to the Penal Code unless otherwise specified.

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Stachurski’s station. The jeans had the wrong tag on them; the tag belonged to a pair of

“Wear Black” shorts priced at $40. The correct price for the jeans was $218 that day.

       Renteria turned his attention back to defendant. He saw defendant in the Diesel

clothing area; defendant had three pairs of Diesel jeans in his hands, worth $280 each.

Defendant carried the Diesel jeans over to the American Rag department. There,

defendant selected three pairs of American Rag jeans; the jeans were marked at $30 each,

with an additional 50% off. Defendant then carried all six pairs of jeans to the fitting

room. Eventually, defendant came out of the fitting room. Now, the Diesel jeans had the

American Rag tags on them and the American Rag jeans had no tags on them. The

Diesel tags were in the fitting room.

       Back at his monitor, Renteria saw defendant dump the American Rag jeans in the

young men’s department. Defendant then carried the Diesel jeans out of the clothing

department and into the fragrance department; he presented them for purchase. Renteria

notified the sales clerk to do a price check on the jeans and to sell them for the correct

price, $280 per pair. Unable to buy the $840 worth of Diesel jeans for $45, defendant

immediately left the store.

       Five months later, around 4:00 p.m. on December 12, Renteria saw defendant in

the same Macy’s store in Rancho Cucamonga. Defendant was carrying Diesel jeans

again. Renteria saw defendant go to the Lacoste shirt display where he looked at some

polo shirts priced at $89.50. From there, defendant went to the Club Room display,

where he picked out a large gray polo shirt. He then went back to the Lacoste display

and picked out polo shirts in gray and green.

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       Clothing in hand, defendant went to the fitting rooms where he stayed in one stall

for about thirty minutes. When defendant emerged, he left the Club Room shirt, which

no longer had a tag on it, on a rack. He still had two pairs of Diesel jeans with him.

       This time, defendant went to the kid’s department to pay for the clothing. The

sales clerk rang up the transaction, and defendant paid in cash. As the items were being

bagged, Renteria intervened and took defendant back to the loss prevention office.

       Renteria looked at the items defendant just purchased. One was the $89.50

Lacoste shirt with a Club Room tag for $8.99. The other was one pair of Diesel jeans,

priced at $218, but with a Royal Premium tag for $40. The Royal Premium jeans were

on sale that day for $24.99. Defendant, therefore, paid the cashier a total of $36.61 for

the $307.50 worth of clothing.

       Renteria called the police. Sheriff’s Deputy Matthew Mondry responded. Deputy

Mondry interviewed defendant. Defendant initially denied everything then admitted that

he had come in that day and swapped price tags, which had been his intention when he

entered the store. After Deputy Mondry showed defendant stills from the July

surveillance video, defendant admitted that he had switched tags on that date, too.

Defendant admitted to the deputy that he had gone to Macy’s on several occasions to

switch tags.




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                                             III

                                        ANALYSIS

        A. Substantial Evidence Supports Defendant’s Conviction

        Defendant contends that there was insufficient evidence that he intended to

commit theft when he entered Macy’s in July. Defendant’s argument is without merit.

        When the sufficiency of evidence is challenged on appeal, we must “review[] the

entire record in the light most favorable to the prosecution to determine whether it

contains evidence that is reasonable, credible, and of solid value, from which a rational

trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Davis

(2009) 46 Cal.4th 539, 606.)

        Under section 459, burglary requires a specific intent to commit a theft or a felony

upon entering a building. Therefore, in order to be convicted of burglary, the People had

to prove that defendant had intended to commit a felony or a theft when he entered the

Macy’s store. (People v. Deptula (1962) 58 Cal.2d 225, 228.) Such proof is rarely

direct; instead, it depends on the circumstances. (People v. Holt (1997) 15 Cal.4th 619,

669.)

        In this case, defendant’s attempted theft in July required thought and strategy.

Defendant had to conceive of the idea of switching tags on different merchandise,

determine which items were similar but priced differently to maximize the switching of

tags, find a secluded place to physically switch the tags, discard the no-longer-tagged

clothing in the store, find a register where the cashier would be less likely to recognize

the mislabeled items, and then, finally, attempt to make the purchase. Here, defendant

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picked a high-priced jean, $280 per pair, to purchase; then he picked a store-brand jean

reduced for clearance at $15 per pair. Moreover, after the transaction was declined,

defendant did not continue to shop. He immediately left the store. There is ample

evidence to support the inference that defendant went into the Macy’s store with an intent

to commit this crime.

       Moreover, as detailed above, defendant went back to Macy’s five months later and

did the exact same thing. On December 12, defendant again switched tags on some

Diesel jeans. As before, he hunted down pants that were not only cheaper regularly, but

on sale that day. He proceeded to switch the tags in the dressing room, just as he had

before. Once he had the tags switched, he took the items to a cash register in a

department other than the men’s clothing department to make his purchase. In sum, he

used the same maximum profit-maximizing and minimal probability-of-detection

strategies that he had used in July. The only difference in December was that he also

switched tags from some cheap shirts to expensive Lacoste shirts.

       Furthermore, in addition to the above, upon being arrested in December, defendant

admitted that he had entered the store that day in December with an intent to steal. He

also admitted that he had gone to Macy’s repeatedly to switch price tags.

       Notwithstanding the above, defendant argues that the evidence was insufficient to

support the conviction that defendant intended to commit a theft upon entering Macy’s in

July because the evidence showed that defendant “could have” entered the store to

purchase the Diesel jeans and decided to switch tags after he discovered the price of the

jeans. The evidence “could” show this. However, what defendant forgets is that the

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evidence also supports the conclusion that the jury made – that defendant entered the

store with an intent to switch the tags. Under the substantial evidence standard of review,

it is not our job to reweigh the evidence. In determining whether substantial evidence

exists, “we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate

the credibility of witnesses.” (People v. Cortes (1999) 71 Cal.App.4th 62, 71; see also

People v. Jones (1990) 51 Cal.3d 294, 314.) “Although it is the duty of the [trier of fact]

to acquit a defendant if it finds that circumstantial evidence is susceptible of two

interpretations, one of which suggests guilt and the other innocence [citations], it is the

[trier of fact], not the appellate court which must be convinced of the defendant’s guilt

beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s

findings, the opinion of the reviewing court that the circumstances might also be

reasonably reconciled with a contrary finding does not warrant a reversal of the

judgment.”’” (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

       Based on the above, we find that defendant’s conviction is supported by

substantial evidence.

       B. The Trial Court Properly Sentenced Defendant

       Defendant contends that the trial court improperly sentenced him to serve his

prison time in state prison instead of county jail because section 1170, subdivision (h)

mandates local custody.

       In this case, defendant’s trial served a dual purpose – to determine whether he was

guilty of burglary and whether he had violated probation on two prior cases. One of the

prior cases involved possession for sale, or sale, of ketamine, in violation of Health and

                                              7
Safety Code section 11379.2. After the trial on the burglaries, the court found defendant

in violation of probation on the ketamine case and sentenced him to three years in state

prison, to run concurrently with the sentence on the burglary counts.

       County jail prison sentences are established by section 1170, subdivision (h),

which applies to felonies “punishable pursuant to this subdivision.” (§ 1170, subds.

(h)(1) and (2).) Section 1170, subdivision (h), states: “(1) Except as provided in

paragraph (3), a felony punishable pursuant to this subdivision where the term is not

specified in the underlying offense shall be punishable by a term of imprisonment in a

county jail for 16 months, or two or three years. [¶] (2) Except as provided in paragraph

(3), a felony punishable pursuant to this subdivision shall be punishable by imprisonment

in a county jail for the term described in the underlying offense.”

       Health and Safety Code section 11379.2, possession for sale or sale of ketamine,

provides that violators “shall be punished by imprisonment in the county jail . . . or in the

state prison.” No mention is made of section 1170. Therefore, under Health and Safety

Code section 11379.2, county jail time is not mandated. However, by contrast, other

provisions surrounding section 11379.2 expressly provide for punishment under section

1170, subdivision (h). (See Health & Saf. Code, §§ 11377, subd. (a); 11378; 11378.5;

11379, subd. (a); 11379.5, subd. (a); 11379.6, subd. (a).) Therefore, there is no question

that a violation of Health and Safety Code section 11379.2 is a state prison eligible

offense.




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       As noted by defendant, the Legislature modified Health and Safety Code sections

11377, 11378, 11378.5, 11379, 11379.5, and 11376.6 in 2011 to substitute the language

“pursuant to subdivision (h) of Section 1170 of the Penal Code” and in place of the

deleted phrase “in the state prison.” The Legislature, however, specifically did not

modify section 11379.2 to mandate sentencing under section 1170, subdivision (h).

Defendant argues that because “[p]osession for sale of the drug ketamine is not

significantly different from the drug related crimes in the surrounding statutes that were

modified in 2011 [to mandate punishment under section 1170, subdivision (h)], . . . the

more reasonable result is that punishment for the crime of possession of ketamine for sale

is to be treated similarly to the surrounding statutes under section 1170, subdivision (h).”

We hereby refuse to adopt defendant’s interpretation of the statute to make a finding

contrary to the clear wording of the statute and the changes expressly made thereto by the

Legislature in 2011.

       In conclusion, the trial court properly sentenced defendant to state prison for

violating Health and Safety Code section 11379.2. Defendant’s entire sentence,

therefore, had to be served in state prison. (§ 1170.1, subd. (a) [“Whenever a court

imposes a term of imprisonment in state prison, . . . the aggregate term shall be served in

the state prison, regardless as to whether or not one of the terms specifies imprisonment

in a county jail pursuant to [section 1170, subdivision (h)].”)




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     Therefore, we find that the trial court properly sentenced defendant to state prison.

                                          IV

                                   DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                              RICHLI
                                                                                        J.

We concur:


RAMIREZ
                      P. J.


CODRINGTON
                         J.




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