Filed 10/22/13 P. v. Sanchez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056262

v.                                                                       (Super.Ct.No. FBA1100192)

ANNA SANCHEZ,                                                            OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Victor R. Stull,

Judge. Affirmed.

         Jeanine G. Strong, 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, Assistant Attorney General, Sean Rodriquez and A. Natasha

Cortina, Deputy Attorneys General, for Plaintiff and Respondent.




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         A jury found defendant and appellant Anna Sanchez guilty of one count of second

degree commercial burglary. (Pen. Code, § 459.) A trial court sentenced her to three

years in county prison.

         On appeal, defendant contends that the court erred in admitting evidence of three

prior incidents under Evidence Code section 1101, subdivision (b).1 We affirm.

                                  FACTUAL BACKGROUND

         Barbara Rutledge, an asset protection associate for Walmart, was alerted by a

Walmart associate who worked at the refund desk that a woman, later identified as

Angelica, “kept coming in making refunds” that were odd. The associate noticed that

Angelica kept returning common household items, such as toilet paper and paper towels.

She thought the returns were odd since the items were things that people would normally

need, such that one would not return them. Rutledge reviewed surveillance videos

showing the refund desk at the dates and times the associate specified. Rutledge noticed

that on a couple occasions another woman, later identified as Terry, was with Angelica in

the videos.

         On March 19, 2011, Rutledge was on duty at Walmart and observed defendant

shopping. Rutledge recognized defendant from recent security videos. Rutledge

observed defendant walk down an aisle and meet up with Angelica. She subsequently

saw defendant and Angelica shopping with Terry in the toilet paper aisle. Rutledge


         1   All further statutory references will be to the Evidence Code, unless otherwise
noted.



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called her supervisor, Maria Mata-Lopez, to help her observe the three women. Rutledge

followed defendant, and Mata-Lopez followed Angelica and Terry. Rutledge and Mata-

Lopez stayed in contact with each other on their cell phones while they followed the three

suspects.

       Mata-Lopez saw Angelica head toward the cash register in the automotive

department. Terry sat on a bench in the automotive department, where customers would

wait for their vehicles. Angelica purchased the items in her cart at the register (e.g., items

such as toilet paper, paper towels, paper plates, etc.). Mata-Lopez observed Angelica

hand the receipt from the items she just bought to Terry. Angelica and Terry then exited

the store with the purchased items. Terry subsequently came back into the store.

       Meanwhile, Rutledge observed defendant, who had a shopping cart containing

toilet paper and other items. At some point, Rutledge saw defendant and Terry together,

and she observed Terry hand defendant a receipt. They then went their separate ways.

Defendant pushed her cart to the “plastic aisle.” She stopped halfway down the aisle and

took out a package of toilet paper and other items that were in her cart and set them aside.

She reached behind some merchandise on the shelf, pulled out a plastic Walmart bag full

of merchandise, and put the bag in her cart. She walked to the front of the store.

Rutledge maintained a visual on her. Mata-Lopez joined Rutledge, and they followed

defendant. Defendant pushed her shopping cart past the cash registers and left the store.

She was not required to show her receipt to the store greeter because Rutledge had

previously advised the greeter to let her pass. Rutledge and Mata-Lopez stopped

defendant in the vestibule (the area between the store and the outside), identified


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themselves, and asked her to come back inside the store for failure to pay for the

merchandise. Defendant said she had a receipt and offered to show it. Mata-Lopez said

defendant just needed to go to the back office with them. Defendant complied.

Defendant then gave Mata-Lopez the receipt that she had been trying to show her. The

receipt was from Angelica‟s purchase of the same or similar items in the automotive

department that day.

                                       ANALYSIS

    The Trial Court Properly Admitted the Evidence of Defendant‟s Prior Conduct at

                                         Walmart

       Defendant contends that the court abused its discretion under section 352 in

admitting evidence of uncharged acts by her, Angelica, and/or Terry, which occurred the

month prior to the current incident at the same Walmart store. Defendant argues that

such evidence (e.g., video clips and testimony) had no probative value, was prejudicial,

and deprived her of her constitutional rights to due process and a fair trial. We find no

abuse of discretion.

       A. Evidence of Prior Acts

       Before trial, the defense objected to evidence that the prosecution intended to

introduce of activity that occurred at Walmart on February 1, 2, and 7, 2011. The

prosecution had surveillance video clips that showed defendant, Angelica, and Terry

together at Walmart on those days, conducting activity that was similar to the activity in

the current offense. The prosecution wanted to introduce the video clips to show that the

three women knew each other and worked together. Defense counsel argued that the


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videos would be confusing to the jury, and that they would mislead the jury as to the

conduct from the current offense. The court allowed the evidence, stating that it

demonstrated defendant‟s intent and a “semi-sophisticated scheme to defraud Wal-Mart

of its property.” Therefore, the prosecution introduced the following evidence at trial:

       Rutledge testified that, on February 1, 2011, she was on duty and saw defendant,

Angelica, and Terry in the store. A surveillance video clip from approximately 5:00 p.m.

that day was played for the jury as Rutledge explained what happened. Rutledge testified

that she observed Angelica and Terry had a grocery cart full of merchandise, and that

defendant had a grocery cart of similar or the same merchandise. Defendant went in a

different direction with her cart, so Rutledge followed Angelica and Terry. She observed

them go to the automotive department, where Angelica paid for their items. Rutledge

saw Angelica and Terry exit the store from the automotive department. She stopped

watching them since they paid for everything, and she continued walking around the

store. Rutledge noticed defendant sitting at the McDonald‟s located inside the Walmart

store. Defendant now had a shopping cart with a plastic Walmart bag full of

merchandise.2 Next, Rutledge saw Angelica and Terry reenter the store, without any

merchandise, and meet defendant. They had lunch together. Rutledge then observed

defendant as she was leaving the store. Defendant showed the greeter a receipt for the

merchandise in her cart and exited the store. Rutledge later reviewed the surveillance

videos from that day to find out where defendant had paid for her merchandise. The

       2  Rutledge initially testified that defendant had “a plastic bag with merchandise,”
but later said that defendant had “Wal-Mart bags full of merchandise.” (Italics added.)


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videos showed defendant go into the shoe department with a cart full of merchandise.

She went out of the camera‟s view, and when she came back into view, she no longer had

just merchandise, but had plastic Walmart bags full of merchandise. Rutledge checked

every cash register video and could not find any video of defendant paying for that

merchandise.

       Rutledge next testified regarding a surveillance video clip from February 4, 2011,

which was shown to the jury. The surveillance video from around 12:12 p.m. showed

Angelica and Terry purchasing items at the automotive department register. Rutledge

explained that once the purchase was complete, Terry left the store, and Angelica walked

back into the store. Then, at 12:24 p.m., the surveillance video showed defendant and

Angelica walking past the front registers with bagged merchandise similar to what

Angelica had purchased in defendant‟s cart. Rutledge said she went back and looked for

video footage that showed defendant paying for her items, but could not find any.

       Rutledge then testified concerning a surveillance video clip from February 7,

2011, which was also played for the jury. Rutledge testified that she reviewed the

surveillance video and noted that defendant, Angelica, and Terry were shopping at

Walmart together that day. They were in the same aisle using two shopping carts. It

appeared that they were putting similar or the same items in each cart. Angelica and

Terry paid for merchandise in their cart at the automotive department register. As

Angelica was paying, the video showed that Terry left the store with the merchandise.

Angelica went back into the store after she finished paying. Rutledge testified that the

video showed defendant, a few minutes later, pushing her shopping cart past a closed


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register, as she headed toward the exit. Defendant handed the greeter a receipt and left

the store. Rutledge reviewed all the video pertaining to defendant from that day and

could not find any footage of her paying for the merchandise. However, the video did

show defendant push her cart into the parking lot and meet up with Angelica and Terry,

as Terry was putting the merchandise she and Angelica had purchased into a car.

Defendant pushed her cart over to a fourth female, who then took the cart and went back

into the store to get a refund. The receipt she used for the refund was the receipt from

Angelica‟s purchase at the automotive department that day.

       B. Standard of Review

       Evidence of uncharged acts by a defendant is admissible under section 1101 when

relevant to prove some fact (such as motive, intent, identity, or a plan) other than the

defendant‟s propensity or disposition to commit such acts. (§ 1101, subd. (b).) To be

admissible, such evidence “„“must not contravene other policies limiting admission, such

as those contained in Evidence Code section 352.”‟ [Citation.]” (People v. Lewis (2001)

25 Cal.4th 610, 637.) Under section 352, “the probative value of the proffered evidence

must not be substantially outweighed by the probability that its admission would create

substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

[Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1195 (Cole).) On appeal, we

review the trial court‟s ruling for abuse of discretion. (Ibid.)

       C. The Court Properly Admitted the Evidence

       “[E]vidence of a defendant‟s uncharged misconduct is relevant where the

uncharged misconduct and the charged offense are sufficiently similar to support the


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inference that they are manifestations of a common design or plan.” (People v. Ewoldt

(1994) 7 Cal.4th 380, 401-402 (Ewoldt), superseded by statute on another point as stated

in People v. Robertson (2012) 208 Cal.App.4th 965, 991.) “[T]he plan need not be

unusual or distinctive; it need only exist to support the inference that the defendant

employed that plan in committing the charged offense. [Citation.]” (Ewoldt, at p. 403.)

“In order to be admissible to prove intent, the uncharged misconduct must be sufficiently

similar to support the inference that the defendant „“probably harbor[ed] the same intent

in each instance.” [Citations.]‟ [Citation.]” (Id. at p. 402.)

       Applying these principles, we find no abuse of discretion or constitutional

violations in the court‟s admission of the prior acts evidence. The prior acts evidence

demonstrated the carefully orchestrated scheme by which defendant took merchandise

from Walmart without paying for it. In both the prior acts and the charged crime,

defendant, Angelica, and Terry selected the same or similar items for their shopping

carts; Angelica and Terry went to the automotive department register to purchase their

items and exit the store; either Angelica, Terry, or both of them, reentered the store and

met up with defendant; then defendant left the store with her merchandise in Walmart

bags. Although defendant apparently never paid for her merchandise, she always had a

receipt. When asked to show a receipt, defendant showed the receipt from Angelica and

Terry‟s purchase at the automotive department register. The prior incidents were

sufficiently similar to support the inference that defendant harbored the same intent in

each instance, that is, to take merchandise from Walmart without paying for it. (See

Ewoldt, supra, 7 Cal.4th at p. 402.) Moreover, the prior acts were similar to the charged


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offense, and the evidence supported the inference that defendant employed the same plan

in committing the charged offense. (Id. at p. 403.)

       We note defendant‟s contention that the court erred in allowing Rutledge to

refresh her recollection during her testimony by referring to narrative reports she had

written regarding the three prior incidents. Defendant objected to the narrative reports

below, claiming that the prosecution violated discovery rules by failing to provide copies

of these reports to her. The court held an extensive hearing on this issue before allowing

Rutledge to refer to them. Defendant now claims that the court “concluded error

occurred when the police failed to give the documents to the district attorney‟s office

after collecting them from Wal-Mart,” and that the court “overlooked a serious discovery

violation” by allowing Rutledge to refer to the reports. She asserts that allowing

Rutledge to testify from these reports “compounded the prejudicial error” of admitting

the prior acts evidence. We see no prejudicial error. In contrast to defendant‟s

contention, the prosecutor indicated that she had not seen the reports prior to Rutledge

bringing them to use at trial during her testimony. Accordingly, the court found no “firm

evidence” that police had previously obtained copies of the reports, and the court

declined to issue a discovery sanction. Moreover, we note that the defense was given

copies of the reports and time to review them before Rutledge continued with her

testimony.

       Furthermore, the trial court limited any prejudicial impact of the prior acts

evidence by instructing the jury that such evidence was admitted “for the limited purpose

of proving intent or that [defendant] had a scheme or plan to commit the offense


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charged.” The court specifically instructed the jury that it could consider the evidence

“only for those purposes and for no other.”

       We conclude that defendant‟s prior conduct was relevant evidence of her intent

while shopping at Walmart on March 19, 2011, and the evidence of her prior acts

demonstrated a common plan or scheme. Thus, the court properly admitted the prior acts

evidence under section 1101.

       D. Any Error Was Harmless

       Assuming arguendo that the trial court abused its discretion in admitting evidence

of defendant‟s prior acts, the error would not require reversal. Even if the evidence of the

three prior incidents was disregarded, there was more than enough evidence to support

defendant‟s current conviction of second degree commercial burglary. Rutledge testified

that she personally observed defendant, Angelica, and Terry shopping together at

Walmart on March 19, 2011. The surveillance video showed Angelica purchasing such

items as toilet paper, paper towels, paper plates, etc., at the automotive department cash

register. Mata-Lopez testified she personally observed Angelica give the receipt to Terry.

       Meanwhile, Rutledge observed defendant in the store with a shopping cart

containing toilet paper and other items. Rutledge personally saw Terry hand defendant a

receipt. Rutledge then observed defendant push her cart to the plastic aisle, stop her cart,

take items out of her cart, pull out a plastic Walmart bag full of merchandise from the

shelf, and put that bag in her cart. Rutledge followed defendant to the front of the store

and Mata-Lopez joined her. Rutledge observed, and the surveillance video captured,

defendant pushing her shopping cart past the cash registers and leaving the store without


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paying. When Rutledge and Mata-Lopez stopped defendant, defendant said she had a

receipt and offered to show it. The receipt that defendant produced was the receipt from

Angelica‟s purchase of the same or similar items in the automotive department that day.

       In view of this evidence, “it is not reasonably probable that a result more favorable

to defendant would have resulted had the prior [acts] evidence not been admitted.

[Citations.] For the same reasons, any error was harmless beyond a reasonable doubt.

[Citations.]” (Cole, supra, 33 Cal.4th at p. 1195.)

       E. There Was No Cumulative Error

       Defendant contends that the cumulative effect of the alleged errors at trial requires

reversal. Inasmuch as we have rejected each and every claim of error individually, we

find no cumulative error sufficient to have affected the outcome of the trial to her

detriment.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                                           J.
We concur:


RAMIREZ
                        P. J.


KING
                           J.


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