Filed 7/21/15 P. v. Moore CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                                    D066170

         Plaintiff and Respondent,

         v.                                                                    (Super. Ct. No. SCN326538)

JEFFREY SHERROD MOORE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Robert J.

Kearney, Judge. Affirmed.



         Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and

Respondent.
                                    INTRODUCTION

       In May 2014 a jury found Jeffrey Sherrod Moore guilty of one count of felony

burglary (Pen. Code, § 459; count 3),1 two counts of petty theft of retail merchandise

(§§ 484, 490.5; counts 2 & 4), and one count of receiving stolen property (§ 496,

subd. (a); count 5). The jury deadlocked on count 1 for felony burglary (§ 459), which

the People subsequently dismissed. The court sentenced Moore to three years for the first

count of petty theft (count 2) based on aggravating circumstances; a consecutive one-

third middle term of eight months for the second count of petty theft (count 4); three

years for felony burglary (count 3); and three years for receiving stolen property

(count 5). Pursuant to section 654, subdivision (a), the court stayed Moore's sentence for

count 3 finding it was the same criminal act as count 4. The court also stayed the

sentence for count 5.

       Moore presents three issues on appeal.2 First, Moore contends he was actually

charged and sentenced for petty theft under count 5 rather than receiving stolen property.

Second, Moore contends counts 2, 4, and 5 constitute a single offense under the doctrine

of People v. Bailey (1961) 55 Cal.2d 514 (Bailey). Accordingly, Moore contends the

court should have consolidated the three counts and he should have received a single

conviction for theft. Third, Moore argues he received ineffective assistance of counsel at

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

2      Moore also filed a petition for writ of habeas corpus (In re Jeffrey Sherrod Moore
(D067592)), which we ordered considered with this appeal. We deny the petition by
separate order. We deny the motion to consolidate the appeal with the petition.

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trial because his trial counsel should have argued for aggregation of his offenses at trial.

We disagree with these contentions and affirm the judgment.

                               FACTUAL BACKGROUND

       Jacob Evans, a store investigations specialist for Toys "R" Us, was assigned to the

Oceanside store because the company had reports that an individual they were looking

for had been making weekly visits to the store. Multiple other Toys "R" Us stores in the

San Diego area reported an African-American male wearing a large jersey who

repeatedly entered and exited the stores and, when exiting, appeared to have a box-

shaped bulge under his jersey in the area of his waistband. Evans had seen an individual

matching the suspect's description in late October 2013. He had photographed the

suspect and the vehicle the suspect drove.

       On December 8, 2013, Evans observed Moore, the same individual he had seen

and photographed in late October, enter the store. Moore was wearing a white jersey

with a blue and black stripe and the number 48 on the back. Evans had seen Moore wear

a similar jersey on at least two previous occasions at other stores. Evans watched Moore

enter the store and make his way to the Lego area. Evans saw Moore remove a Willis

Tower Lego set (Willis Tower set) and a Brandenburg Gate Lego set (Brandenburg Gate

set) from different shelves on the display unit and carry both sets to the back of the store.

Once in the back of the store, Moore placed the Brandenburg Gate set on the corner of a

shelf. He then concealed the Willis Tower set under a tight blue shirt he was wearing

underneath his jersey. Evans followed Moore and watched Moore make his way past the

registers and out of the store. Evans did not exit the store himself.

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       Several minutes later, Moore reentered the store and Evans again followed him.

Moore looked at items in several other toy areas before he ended up where he had left the

Brandenburg Gate set. Moore took the Brandenburg Gate set to the farthest area of the

store where he concealed it in his waistband underneath his blue shirt and jersey. He then

exited the store. This time, Evans followed Moore into the store's parking lot where

Evans saw Moore open the driver's side door of a green Hyundai and lean in. He

removed an object from his waistband and placed it on the floorboard behind the

passenger seat.

       Moore entered the store a third time, although Evans lost sight of Moore after

entering the store himself. Approximately 20 minutes later, Evans saw Moore checking

out at one of the store's registers. Evans called the police. While on the phone with the

police, Evans followed Moore out of the store and observed him return to the green

Hyundai.

       Moore was driving out of the store's parking lot when Oceanside Police Officer

Scott Garrett, arrived on the scene. Officer Garrett, who had been given a description

matching Moore, stopped Moore's vehicle and Moore identified himself. Moore was not

wearing the white jersey at this time. Officer Garrett searched the vehicle and found a

white jersey bearing the number 48 on the front passenger seat. He discovered a Robie

House Lego set (Robie House set) with a security device still attached to it underneath

the white jersey. Garrett also found a Willis Tower set on the front passenger floorboard

and a Brandenburg Gate set on the vehicle's rear floorboard. Officer Garrett found a

Toys "R" Us receipt for a purchase Moore made on that date, but it was not for the Willis

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Tower set, the Brandenburg Gate set or the Robie House set. Officer Garrett searched

Moore and discovered a cell phone, which Moore identified as his own.

      Officer Garrett arrested Moore. An inventory search of Moore upon his arrival at

the police station revealed he possessed $37 in cash, but he had no wallet, checkbooks, or

credit cards. When Officer Garrett later conducted a search of Moore's cell phone, he

discovered Moore sent a text message after being taken to the police station. The

message read "They got me, Toys-R-Us, don't call."3

                                     DISCUSSION

                                            I

                    Moore's Conviction for Receiving Stolen Property

      Moore contends his conviction for count 5, receiving stolen property related to the

Robie House set, was improper because the court "implicitly found" he stole the Robie

House set in the same instance he stole the Willis Tower set and the Brandenburg Gate

set. Therefore, because one cannot be convicted of both stealing and receiving stolen

property, he could not be convicted on a charge of the former crime. The People contend

Moore's conviction was proper because count 5 concerned receipt of different stolen

property than that charged as stolen in counts 2 and 4. We agree with the People.




3      Moore does not allege the search of his cell phone was improper under Riley v.
California (2014) ___ U.S. ___, ___ [134 S.Ct. 2473, 189 L.Ed.2d 430] because he
concedes the search was conducted pursuant to a Fourth Amendment waiver. (See In re
Curtis T. (1989) 214 Cal.App.3d 1391, 1395-1396.)

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       A person may not be convicted of both theft and receipt of the same property.

(§ 496, subd. (a); People v. Ceja (2010) 49 Cal.4th 1, 4 (Ceja).) However, this principle

is inapplicable where, as here, an individual is convicted of theft and receipt of separate

pieces of property. (Ceja, supra, at pp. 4-5 ["The rule against dual convictions was …

founded on the notion that it is 'logically impossible for a thief who has stolen an item of

property to buy or receive that property from himself.' "].) (Italics added.) Therefore,

regardless of whether Moore actually stole the Robie House set, he may be charged with

and convicted for receiving that stolen property independently of any charges or

convictions relating to theft of the Willis Tower set and the Brandenburg Gate set.

(§ 496, subd. (a); see Gov. Code, § 26501; Ceja, at p. 7 ["[T]he prosecutor has the

discretion to decide which offenses to charge. The courts do not generally supervise

these 'purely prosecutorial function[s].' "].) Accordingly, we affirm Moore's conviction

under count 5.

                                             II

                  Moore's Conviction for Multiple Counts of Petty Theft

       Moore also argues the court failed to consolidate the multiple counts of petty theft

against him into a single count for the same offense. Moore contends he may only be

convicted of one offense under Bailey, supra, 55 Cal.2d 514, because he stole the Willis

Tower set and the Brandenburg Gate set pursuant to a "single intention," and because

removing both sets from their respective shelf spaces simultaneously constituted a single

act of theft. The People contend Bailey is inapplicable. We agree with the People.



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       "A criminal defendant cannot be punished more than once for the same criminal

act or for a series of criminal acts committed 'incident to one objective.' ([Citation]; see

§ 654.) However, as a general matter, a criminal defendant can suffer multiple

convictions for a single criminal act or series of related criminal acts. (§ 954 ['The

prosecution is not required to elect between … different offenses or counts set forth in the

accusatory pleading, [and] the defendant may be convicted of any number of the offenses

charged.'].)" (People v. Kirvin (2014) 231 Cal.App.4th 1507, 1517.)

       The Supreme Court in Bailey created an exception to this general rule. In Bailey,

the defendant committed a single misrepresentation resulting in the continued receipt of

welfare payments, each individual payment amounting to petty theft but collectively

amounting to grand theft. (Bailey, supra, 55 Cal.2d at pp. 515-516, 518, fn. 3.) Aside

from this single misrepresentation and omitting to correct it, the defendant committed no

other criminal acts. Because the evidence supported a jury finding the defendant acted

pursuant to an initial design to continue receiving the payments until they exceeded the

requisite amount for grand theft, the Supreme Court concluded the defendant had not

committed "separate and distinct" offenses of petty theft, but rather a single act of grand

theft "pursuant to one intention, one general impulse, and one plan." (Id. at p. 519.) In so

holding, the Bailey court distinguished the facts before it from earlier cases upholding

multiple convictions of grand theft involving separate and distinct acts of theft despite

their similarities. (Ibid.)

       A number of Court of Appeal decisions subsequently interpreted Bailey, supra, 55

Cal.2d 514 to shield defendants from multiple convictions for committing multiple acts

                                              7
of grand theft pursuant to a singular criminal intention. (See generally People v.

Kronemyer (1987) 189 Cal.App.3d 314, 363-364; People v. Brooks (1985) 166

Cal.App.3d 24, 30-31; People v. Packard (1982) 131 Cal.App.3d 622, 626; People v.

Richardson (1978) 83 Cal.App.3d 853, 866.) However, the Supreme Court recently

rejected this expansion of Bailey and recognized defendants may be convicted of multiple

counts of theft where they commit separate and distinct acts of the offense, even if

"pursuant to a single overarching scheme." (People v. Whitmer (2014) 59 Cal.4th 733,

741 (Whitmer).) Thus, Bailey only applies where a defendant commits a single act of

theft.4

          We review the judgment for substantial evidence. "The Bailey doctrine applies as

a matter of law only in the absence of any evidence from which the jury could have

reasonably inferred that the defendant acted pursuant to more than one intention, one

general impulse, or one plan." (People v. Jaska (2011) 194 Cal.App.4th 971, 984.)

          Turning to the case at hand, we conclude there was substantial evidence to support

Moore's conviction of multiple counts of petty theft. Moore removed each set from

separate shelf space and placed the items in a secluded area of the store. He placed the



4       As a general rule, a decision of a court overruling prior decisions is given full
retroactive effect unless the appellate court determines retroactive application should be
restricted on grounds of equity and public policy. (Johnson v. Department of Justice
(2015) 60 Cal.4th 871, 888.) The Whitmer court did not retroactively apply its holding to
the defendant in that case because it would have been "an unforeseeable judicial
enlargement of criminal liability for multiple grand thefts." (Whitmer, supra, 59 Cal.4th
at p. 742.) Application of Whitmer to this case is not similarly barred on grounds of
equity and public policy because, as Moore admits, there are no cases applying the Bailey
doctrine to aggregate multiple convictions of petty theft into one conviction of petty theft.
                                               8
Willis Tower set under his jersey and removed it from the store. Upon his return to the

store, Moore walked around and stopped to look at other items in the store before he went

back to where he placed the Brandenburg Gate set. He then concealed and removed the

Brandenburg Gate set. In sentencing Moore to consecutive terms for counts 4 (theft of

the Brandenburg Gate set) and 2 (theft of the Willis Tower set), the trial court concluded

there were two crimes. "[Moore] left the store, came back[,] and committed a second

theft."

          People v. Shannon (1998) 66 Cal.App.4th 649, 654 (Shannon) held a defendant

need not remove an item of property from a store to be liable for theft of that property.

However, Shannon does not compel the conclusion Moore's independent acts of theft in

this case should be viewed as a singular act. In Shannon, the defendant placed multiple

items into a shopping bag and took them collectively to a clerk where he asked to

exchange them for a cash refund. (Id. at pp. 652-653, 656.) The issue in Shannon did not

involve the number of thefts committed, but rather at what point in time theft occurred

since the defendant never actually left the store with the items. (Id. at p. 653.). The

evidence in Shannon indicated the defendant committed a single act of theft by

transporting and offering the bag of items to the cashier for a return. In contrast, Moore

concealed and removed each item from the store separately. The fact he simultaneously

moved two items within the store does not prevent conviction for the distinct crimes he

committed. Therefore, because substantial evidence supports the conviction for two

distinct and separate acts of petty theft, we conclude Bailey, supra, 55 Cal.2d 514 is

inapplicable.

                                              9
       Accordingly, we affirm Moore's conviction and sentencing under counts 2 and 4.

Given our conclusions, Moore cannot establish his trial counsel provided ineffective

assistance of counsel or that any deficiency in his counsel's failure to move for acquittal

or request an aggregation instruction caused him prejudice. (People v. Carrasco (2014)

59 Cal.4th 924, 982.)

                                      DISPOSITION

       The judgment is affirmed.


                                                                       MCCONNELL, P. J.

WE CONCUR:


HUFFMAN, J.


IRION, J.




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