Filed 3/12/18
                CERTIFIED FOR PUBLICATION



       IN THE COURT OF APPEAL OF THE STATE OF
                     CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION ONE


THE PEOPLE,                           B276786

       Plaintiff and Respondent,      (Los Angeles County
                                      Super. Ct. No. NA102420)
       v.

KEVIN MIRELES,

       Defendant and Appellant.



     APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark C. Kim, Judge. Affirmed.
     Jared G. Coleman, under appointment by the Court of
Appeal, for Defendant and Appellant.
     Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Steven D. Matthews and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff
and Respondent.
                     ——————————
       Belinda Reyes (Reyes), a Home Depot asset protection
specialist, and Clifton Roth (Roth), a sales associate,
watched Kevin Mireles (Mireles) place a universal product
code (UPC) sticker for a $4.47 bottle of roach killer on a
$39.98 bottle of weed killer, pay $4.47 at a self-checkout
station for the $39.98 product, and walk out of the store.
Reyes and Roth followed Mireles outside, where Reyes
confronted Mireles and a scuffle ensued. Police arrested
Mireles; the People charged him with, and a jury convicted
him of, second degree robbery under Penal Code
section 212.5, subdivision (c),1 as construed in People v. Estes
(1983) 147 Cal.App.3d 23.
       Mireles appeals from his robbery conviction. He
contends the trial court improperly excluded evidence of a
prosecution witness’s prior felony convictions and improperly
admitted evidence of Mireles’s prior criminal conduct in
violation of Evidence Code section 352, the trial court
improperly admitted testimony from an undisclosed rebuttal
witness contrary to Penal Code section 1054.1, and the
cumulative effect of the trial court’s errors deprived him of a
fair trial. We requested supplemental briefing from the
parties as to whether Mireles’s conduct as charged and tried


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




                               2
could constitute robbery in light of People v. Williams (2013)
57 Cal.4th 776 (Williams).
      We hold that Mireles’s conduct constitutes robbery and
that the trial court did not err with respect to the challenged
evidentiary and discovery rulings. Accordingly, we affirm.
                       BACKGROUND
I.    The robbery
      On August 18, 2015, Mireles entered a Home Depot
store in Signal Hill. Reyes watched Mireles take a bottle of
weed killer—a “high-theft” item—from the shelf, pull a UPC
sticker from his pocket, put it on the weed killer bottle, and
scan the bottle at a self-checkout station. The $39.98 bottle
of weed killer scanned for $4.47. Mireles paid the $4.47 and
exited the store.
      Reyes asked Roth to accompany her as an “approach
witness” as she followed Mireles from the store and
confronted him about the theft. Reyes identified herself to
Mireles as “loss prevention” and told him to return the weed
killer. When Mireles did not comply, Reyes reached for
Mireles’s hand and Mireles swung his closed fist at Reyes.
Dennis Bott (Bott) approached the Home Depot entrance just
as the confrontation unfolded. Bott put his cane around
Mireles and restrained him until police arrived.
II. The trial
      The People charged Mireles with one count of second
degree robbery under section 212.5, subdivision (c). Mireles
pleaded not guilty, and the case proceeded to a jury trial on
July 20, 21, and 22, 2016.




                              3
       At trial, the court granted the People’s motion to
preclude evidence of Bott’s past criminal conduct and denied
Mireles’s motion to preclude evidence of Mireles’s past
criminal conduct. The court admitted evidence detailing
Mireles’s past criminal conduct. Additionally, the trial court
allowed Roth to testify for the prosecution as a rebuttal
witness over Mireles’s objection that the People had not
earlier identified Roth as a potential witness. Mireles
testified on his own behalf. While he admitted to stealing
the bottle of weed killer, Mireles disputed using any “force,
fear, or intimidation to get away with the weed killer.”
       The jury found Mireles guilty of second degree robbery.
The trial court placed Mireles on formal probation for three
years with various conditions, including 90 days in county
jail with credit for time served and good behavior, and 60
days of Caltrans work. Mireles timely appealed.
                          DISCUSSION
I.     Mireles was properly convicted of robbery
       Mireles argues that under the teaching of Williams,
supra, 57 Cal.4th 776, his crime was not theft by larceny,
but theft by false pretenses. As a theft by false pretenses is
not a “ ‘felonious taking,’ ” Mireles contends that the People
failed to prove one of the essential elements of robbery 2 and,



     2  “Robbery is the felonious taking of personal property
in the possession of another, from his person or immediate
presence, and against his will, accomplished by means of
force or fear.” (§ 211, italics added.)



                               4
as a result, his conviction must be reversed. As discussed
below, we disagree.
      A.     STANDARD OF REVIEW
      It is undisputed that Mireles “knowingly and
purposefully” placed a UPC sticker from another product on
the bottle of weed killer and purchased the $39.98 bottle of
weed killer for $4.47—he plainly and repeatedly admitted to
doing so at trial. Accordingly, the question before us is
whether Mireles’s conduct constituted theft by larceny (the
theory on which the trial court instructed the jury), or theft
by false pretenses. “Issues of law, including statutory
construction and the application of that construction to a set
of undisputed facts, are subject to this court’s independent
review.” (Hill Brothers Chemical Co. v. Superior Court
(2004) 123 Cal.App.4th 1001, 1005.)
      B.     THEFT BY LARCENY VERSUS THEFT BY FALSE
PRETENSES
      1.    Theft by larceny
      “The elements of theft by larceny are well settled: the
offense is committed by every person who (1) takes
possession (2) of personal property (3) owned or possessed by
another, (4) by means of trespass and (5) with intent to steal
the property, and (6) carries the property away.” (People v.
Davis (1998) 19 Cal.4th 301, 305 (Davis).) “The act of taking
personal property from the possession of another is always a
trespass unless the owner consents to the taking freely and
unconditionally or the taker has a legal right to take the
property.” (Ibid., fns. omitted, italics added.) “And if the




                              5
taking has begun, the slightest movement of the property
constitutes a carrying away or asportation.” (Ibid.)
      2.    Theft by false pretenses
      “[T]heft by false pretenses involves the consensual
transfer of possession as well as title of property; therefore, it
cannot be committed by trespass.” (Williams, supra, 57
Cal.4th at p. 788, second italics added.) As our Supreme
Court has explained, “the acquisition of title involved in the
crime of theft by false pretenses precludes a trespass [or
theft by larceny] from occurring.” (Id. at p. 789.) In
addition, “theft by false pretenses, unlike larceny, has no
requirement of asportation.” (Id. at p. 787, italics omitted.)
“The offense requires only that ‘(1) the defendant made a
false pretense or representation to the owner of property;
(2) with the intent to defraud the owner of that property; and
(3) the owner transferred the property to the defendant in
reliance on the representation.’ [Citation.] The crime of
theft by false pretenses ends at the moment title to the
property is acquired.” (Ibid.)
      3.    Distinguishing between theft by larceny and theft
by false pretenses
      The differences between theft by larceny and theft by
false pretenses are illustrated by two decisions by our
Supreme Court: Davis, supra, 19 Cal.4th 301; and Williams,
supra, 57 Cal.4th 776.
      In Davis, supra, 19 Cal.4th 301, the defendant took a
shirt from its hanger in a department store, carried it to the
sales counter, falsely claimed to have purchased it earlier,




                                6
requested a refund, and was issued a voucher for credit in
the store. By the time the defendant approached the
cashier, however, the store’s security guards had discovered
his activities. While the cashier issued the voucher, she did
so at the guards’ instruction and with their awareness of the
intended crime. (Id. at p. 303.) Although the defendant had
intended to use deception to obtain both possession and
ownership of the credit voucher, he was convicted of theft by
larceny, not theft by false pretenses. (Ibid.) On appeal, the
defendant sought to divide his crime into two acts: (1) his
removal of the shirt from its hanger and taking it to the
cashier and (2) his false representation to the cashier and
acceptance of the voucher. He then argued that the element
of trespass was absent because the store issued the voucher
while aware of his fraud. In affirming the larceny
conviction, Justice Mosk wrote for a unanimous court that
the defendant’s argument “focuses on the wrong issue of
consent . . . . [¶] . . . [T]he question is whether [the store]
consented to [defendant’s] taking the shirt in the first
instance.” (Id. at p. 306.) Disregarding the latter portion of
the transaction, the court found that defendant’s taking the
shirt from a hanger with the intent to steal it was trespass.
Although recognizing department stores are ordinarily
presumed to consent to customers’ carrying items for sale
within the store, Davis emphasized that there was no
consent to such transport if committed with a larcenous
intent: “[A] self-service store . . . impliedly consents to a
customer’s picking up and handling an item displayed for




                               7
sale and carrying it from the display area to a sales counter
with the intent of purchasing it; the store manifestly does
not consent, however, to a customer’s removing an item from
a shelf or hanger if the customer’s intent in taking
possession of the item is to steal it.” (Ibid.)
      In Williams, supra, 57 Cal.4th 776, our Supreme Court
once again focused on the issue of consent. In that case, the
defendant Williams used a credit card that had been “re-
encoded with a third party’s credit card information” to
purchase a gift card from a novice Walmart cashier, who did
not know that such purchases were against company
policy—Walmart prohibited the use of credit cards for
purchases of gift cards. (Id. at pp. 780, 791–792.) After
Walmart “permitted” the defendant to keep the first gift
card, he tried to purchase more gift cards at a different
register; as a result, he came under the scrutiny of the
store’s loss prevention personnel. (Id. at p. 780.) Security
guards eventually confronted the defendant; they pointed
out to him that the number on his credit card did not match
the credit card number on the sales receipt. When the
guards attempted to detain the defendant, he pushed past
them and ran. He was ultimately apprehended and
convicted of robbery, burglary, theft by false pretenses, and
other crimes. (Ibid.) On appeal, the defendant contended
his robbery conviction should be reversed because robbery
requires theft by larceny, not false pretenses. (Id. at p. 781.)
Our Supreme Court agreed. In explaining its acceptance of
the defendant’s position, Williams relied in part on robbery’s




                               8
requirement of a trespassory taking, which is absent in a
theft by false pretenses. “[T]heft by false pretenses involves
the consensual transfer of possession as well as title of
property; therefore, it cannot be committed by
trespass. . . . [citation] . . . [Citation.] . . . [¶] . . . [D]efendant
did not commit larceny. Walmart, through its store
employees, consented to transferring title to the gift cards to
defendant. Defendant acquired ownership of the gift cards
through his false representation, on which Walmart relied,
that he was using valid payment cards to purchase the gift
cards. . . . Because a ‘felonious taking,’ as required in
California’s robbery statute [citation], must be without the
consent of the property owner, . . . [citations], and Walmart
consented to the sale of the gift cards, defendant did not
commit a trespassory (nonconsensual) taking, and hence did
not commit robbery.” (Id. at p. 788, third italics added.)
      C.     MIRELES COMMITTED THEFT BY LARCENY
      Like the defendant in Davis, supra, 19 Cal.4th 301,
Mireles contemplated a two-step crime—he picked up the
bottle of weed killer with the intent to steal it and then
placed the UPC sticker for the roach killer product on the
bottle and scanned that UPC—not the UPC for the weed
killer—at the self-checkout counter. As Davis holds, while a
retail store such as Home Depot, is ordinarily deemed to
consent to its customers’ handling of the goods for sale, such
consent does not extend to handling them with the intent of
stealing. (Id. at p. 306.) In contrast to Walmart in Williams,
supra, 57 Cal.4th 776, Home Depot did not consent at any




                                   9
time to Mireles’s purchase of the $39.98 bottle of weed killer
for $4.47. There was never, in other words, a “meeting of the
minds” between the store and Mireles as to what product
(title) the store was agreeing to transfer to Mireles. In sum,
under the teachings of our Supreme Court, Mireles
committed a nonconsensual felonious taking and, as a result,
was properly convicted of robbery.
       In urging that the judgment be reversed, our
concurring and dissenting colleague argues that there is “no
meaningful distinction between Williams[, supra, 57 Cal.4th
776] and this case”—“[i]n each case, the defendant pretended
to pay for the product before absconding.” (Conc. & dis. opn.
post, at p. 4.) We disagree. There is not only a meaningful
distinction between Williams and the instant case, but a
case-defining one.
       What distinguishes this case from Williams, supra, 57
Cal.4th 776, is precisely what distinguishes theft by larceny
from theft by false pretenses. As discussed above, theft by
false pretenses requires two elements which larceny does
not: the consent of the lawful owner to the defendant taking
the property; and the lawful owner’s reliance on the
defendant’s false representation. (Compare Davis, supra, 19
Cal.4th at p. 305 with Williams, supra, 57 Cal.4th at p. 787.)
       In Williams, supra, 57 Cal.4th 776, even though
defendant’s purchase of the gift cards was against company
policy, Walmart nonetheless “permitted” or consented to the
cards’ sale. (Id. at pp. 780, 792.) As our Supreme Court
stated, “defendant did not commit larceny. Walmart,




                             10
through its store employees, consented to transferring title to
the gift cards to defendant.” (Id. at p. 788, italics added.)
Here, in contrast, Home Depot did not willingly consent to
sell to Mireles a $39.98 bottle of weed killer for $4.47. A
merchant does not consent to the sale of an item where the
ostensible purchaser has deceived the merchant as to what
is the subject of the transaction.
       Moreover, in Williams, supra, 57 Cal.4th 776, the
lawful owner of the property consented to the transaction
because it relied on defendant’s false representations as to
his legitimate capacity to pay; in contrast with the instant
case, there was no misrepresentation as to what exchange
was being transacted: the store voluntarily sold gift cards to
the defendant. As our Supreme Court explained, “Defendant
acquired ownership of the gift cards through his false
representation, on which Walmart relied, that he was using
valid payment cards to purchase the gift cards. Only after
discovering the fraud did the store seek to reclaim
possession.” (Id. at p. 788.) Here, Home Depot, in contrast
to Walmart, did not rely on a false representation by Mireles
at any point in the transaction. In the absence of either any
consent by Home Depot to Mireles taking the weed killer
from the store for only $4.47 or any reliance by Home Deport
(or its agents) on any representation or pretense of Mireles,
there could not have been a theft by false pretenses. The
larceny began when Mireles removed the weed killer from
the shelf and it continued until the time he was arrested.
(See § 211; Davis, supra, 19 Cal.4th at p. 305; Williams, at




                              11
p. 787; People v. Cooper (1991) 53 Cal.3d 1158, 1165.)
Accordingly, Mireles was properly charged with second
degree robbery and, as discussed below, properly tried.
II. The trial court did not abuse its discretion
      Mireles contends that the trial court erred with regard
to three rulings. First, he argues that the court improperly
excluded evidence of Bott’s prior felony convictions. Second,
Mireles maintains that the trial court should have excluded
evidence of his past criminal conduct. Third, he insists that
the trial court erred in failing to sanction the People for
purportedly failing to disclose timely one of its rebuttal
witnesses, Roth.
      We review each of these rulings for an abuse of
discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10
[evidentiary rulings]; People v. Ayala (2000) 23 Cal.4th 225,
299 [decision to instruct on discovery abuse].) Under the
abuse of discretion standard, we give “abundant deference to
the trial court’s rulings.” (People v. Jackson (2005) 128
Cal.App.4th 1009, 1018.) A trial court’s exercise of
discretion will not be disturbed on appeal unless the court
“exercised it in an arbitrary, capricious, or patently absurd
manner resulting in a manifest miscarriage of justice.”
(Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427,
1434.) “It is often said that a trial court’s exercise of
discretion will be reversed only if its decision is ‘beyond the
bounds of reason.’ ” (Horsford v. Board of Trustees of
California State University (2005) 132 Cal.App.4th 359, 393.)




                              12
     A.    EXCLUSION OF BOTT’S PRIOR CONVICTIONS WAS
PROPER
       Before the first witness testified, at an Evidence Code
section 402 hearing, the People brought to the trial court’s
attention that one of its witness, Bott, had previously
suffered a number of convictions that arguably involved
moral turpitude: a 1983 conviction for selling and/or
transporting controlled substances (Health & Saf. Code,
§ 11352); and two misdemeanor convictions in 1992 for “hit
and run” and “petty theft.”3 The People moved to exclude
evidence of Bott’s convictions on the ground that they were
“too remote in time” to be used by the defense for
impeachment purposes. Over defense counsel’s objection,
the trial court agreed with the People, noting that the oldest
conviction occurred 33 years before trial and the two 1992
convictions occurred 24 years earlier.
       Although “[t]here is no consensus among courts as to
how remote a conviction must be before it is too remote.
[Citation.] . . . [A] conviction that is twenty years
old . . . certainly meets any reasonable threshold test of
remoteness.” (People v. Burns (1987) 189 Cal.App.3d 734,
738.) Here, each of the convictions at issue was more than

     3 The People also noted that in 2001 Bott was convicted
for obstruction of justice and resisting arrest (§ 148,
subd. (a)(1)). During trial, counsel for Mireles argued that
that particular conviction was not a crime of moral
turpitude. Consequently, Mireles has waived his argument
on appeal with respect to that conviction.




                              13
20 years old. Moreover, there was no conviction for a crime
of moral turpitude during the intervening 24 years between
the date of the most recent convictions and Mireles’s trial.
(See People v. Beagle (1972) 6 Cal.3d 441, 453 [a conviction
from “ ‘long before’ ” should generally be excluded on the
ground of remoteness if followed by a legally blameless life];
cf. Burns, at pp. 738–739 [remoteness of a conviction “loses
most of its impact” if the witness has served a lengthy prison
sentence and has spent limited time out of prison].)
Accordingly, we hold that the trial court did not abuse its
discretion in excluding Bott’s convictions.
      B.    ADMISSION OF MIRELES’S PRIOR CONVICTIONS WAS
PROPER
      Mireles argues that the trial court abused its discretion
when it refused to prevent the People from impeaching him
with evidence of two thefts he committed in 2010 and 2012—
respectively, five and three years before the instant offense.
      At trial, before Mireles testified, defense counsel
objected to the admission of her client’s prior convictions,
arguing that they were too remote in time. The trial court
overruled the objection. In order to lessen the impact of
these convictions on the jury, Mireles admitted to them on
direct examination. On appeal, Mireles contends that his
prior crimes were “barely probative and it gave the jury
almost no additional information regarding [his] moral
turpitude.”
      Our Supreme Court has stated that “[i]n considering
whether to admit evidence of a prior felony conviction of a




                              14
witness subject to impeachment concerning his or her
credibility, the prominent factors in determining the
probative value of the prior conviction include ‘whether the
conviction (1) reflects on honesty and (2) is near in time.’ ”
(People v. Brooks (2017) 3 Cal.5th 1, 52.) Theft “reflects
dishonesty and is a crime involving moral turpitude.”
(People v. Wheeler (1992) 4 Cal.4th 284, 289.) Convictions
for crimes similar to the charged offense occurring just three
and five years before trial are neither remote in time (People
v. Burns, supra, 189 Cal.App.3d at p. 738) nor unduly
prejudicial. (See People v. Carter (2014) 227 Cal.App.4th
322, 330 [admission of 11-year-old misdemeanor burglary
and theft convictions “not unreasonable and within [trial
court’s] discretion”].) Accordingly, we hold that the trial
court did not err in ruling that the Mireles’s prior convictions
were admissible.
      C.     THE FINDING OF NO DISCOVERY ABUSE WAS PROPER
      During the defense’s presentation of evidence, the
People advised the trial court and Mireles’s counsel that it
intended to call two rebuttal witnesses, one of whom was
Roth, the Home Depot employee who served as Reyes’s
approach witness as she followed and then confronted
Mireles. Defense counsel objected to Roth on the ground of
“unfair surprise”—Roth’s name was not on the People’s
witness list and the defense had not had an opportunity to
interview Roth before trial. The trial court overruled the
defense’s objection for two principal reasons: First, Roth’s
name was “available, both sides could have contacted him




                              15
[before trial].” 4 Second, there was no late discovery or
“sandbagging” by the People, because the People only
interviewed Roth the day before and immediately provided
to the defense written notes of that interview. On appeal,
Mireles argues that the trial court’s ruling was in error
because the People violated section 1054.1.
      Section 1054.1 requires, among other things, that the
prosecuting attorney provide the defense with the “names
and addresses of persons [he or she] intends to call as
witnesses at trial.” (§ 1054.1, subd. (a).) Although section
1054.1 does not expressly specify that rebuttal witnesses are
included, our Supreme Court has held that “the only
reasonable interpretation” of the statute is that it “includes
both witnesses in the prosecution’s case-in-chief and rebuttal
witnesses that the prosecution intends to call.” (Izazaga v.
Superior Court (1991) 54 Cal.3d 356, 375.) “Absent good
cause, such evidence must be disclosed at least 30 days
before trial, or immediately if discovered or obtained within
30 days of trial.” (People v. Zambrano (2007) 41 Cal.4th
1082, 1133, italics added.)
      Here, the People interviewed Roth during trial and
“immediately” provided the interview notes to the defense.
There is no evidence of sandbagging by the People—that is,
there is no evidence that the People intended to call Roth as
a witness prior to interviewing him. Indeed, there is


     4 Reyes mentioned Roth by name during her testimony
at the preliminary hearing.




                             16
evidence that the People were fully prepared to go to trial
without ever calling Roth. On June 10, 2016, more than a
month before the People interviewed Roth, and after a jury
had been selected, Mireles moved successfully for a mistrial
due to the defense’s difficulty in locating one of its witnesses.
The People “strongly opposed” Mireles’s motion for a
mistrial, advising the trial court that the People “are ready
to proceed today. We have our witnesses lined up.”
       Moreover, as courts have observed, “A trial is not a
scripted proceeding. . . . [D]uring the trial process, things
change and the best laid strategies and expectations may
quickly become inappropriate: witnesses who have been
interviewed vacillate or change their statements; events that
did not loom large prospectively may become a focal point in
reality. Thus, there must be some flexibility. After all, the
‘ “true purpose of a criminal trial” ’ is ‘ “the ascertainment of
the facts.” ’ [Citation.] After hearing a witness, the necessity
of a rebuttal witness may become more important.” (People v.
Hammond (1994) 22 Cal.App.4th 1611, 1624, italic added.)
The record below indicates that the state initially did not
believe Roth was necessary for its prosecution of Mireles,
then, as the trial unfolded, changed its mind about Roth,
interviewed him, and immediately thereafter provided the
interview notes to the defense. Such conduct did not violate
either the letter or the spirit of section 1054.1.
       Moreover, even assuming that the trial court did err
with respect to Roth, it is not reasonably probable that
Mireles would have obtained a more favorable result.




                               17
(People v. Watson, supra, 46 Cal.2d at p. 836.) First, Mireles
admitted on the stand that he had stolen the weed killer.
Second multiple witnesses testified that Mireles used force
or fear in an attempt to carry off the weed killer. Reyes
testified that when she confronted Mireles he became
aggressive with her, “cursing” at her and then swinging a
closed fist at her. Bott testified that he saw Mireles take a
“full swing” at Reyes, which prompted him to intervene. 5
Even Mireles’s own witness, Brandon Washington, told the
police that he saw Mireles pull away from Reyes and put his
hands on her. In short, apart from Roth’s testimony, there
was strong evidence of Mireles’s guilt beyond a reasonable
doubt of robbery.
       D.    NO CUMULATIVE EFFECT
       Mireles further contends that the cumulative effect of
the alleged errors deprived him of his federal due process
right to a fair trial.
       “Under the cumulative error doctrine, the reviewing
court must ‘review each allegation and assess the cumulative
effect of any errors to see if it is reasonably probable the jury
would have reached a result more favorable to defendant in
their absence.’ ” (People v. Williams (2009) 170 Cal.App.4th
587, 646.) “The ‘litmus test’ for cumulative error ‘is whether
defendant received due process and a fair trial.’ ” (People v.
Cuccia (2002) 97 Cal.App.4th 785, 795.)
       We have found no errors.


     5   Roth testified that Mireles swung at Reyes twice.




                               18
                     DISPOSITION
     The judgment is affirmed
     CERTIFIED FOR PUBLICATION.



                                JOHNSON, J.

I concur:



            ROTHSCHILD, P. J.




                          19
CHANEY, J., Concurring and Dissenting.
      I agree that the trial court did not abuse its discretion
by excluding evidence of Dennis Bott’s prior convictions,
admitting evidence of Mireles’s prior convictions, or allowing
Clifton Roth to testify as a rebuttal witness. Because I
concur that the court did not abuse its discretion in those
matters, I also concur that those alleged errors did not have
the cumulative effect of depriving Mireles of due process.
      Nevertheless, I believe People v. Williams (2013) 57
Cal.4th 776 (Williams) controls the outcome here, and I
would reverse. Therefore, I respectfully dissent.
      The majority opinion relies on People v. Davis (1998) 19
Cal.4th 301 (Davis) and attempts to distinguish Williams to
find that the basis of Mireles’s crime was larceny rather
than theft by false pretenses and that, therefore, his
conviction for robbery is supported by People v. Estes (1983)
147 Cal.App.3d 23.
      Davis was not a robbery case. Our Supreme Court did
not decide whether Davis could have been convicted of
robbery for his larceny of a shirt had a scuffle ensued when
he attempted to leave Mervyn’s with a fraudulently obtained
credit voucher (instead of a shirt). Consequently, without
more Davis would theoretically support a jury’s finding that
Mireles’s initial taking of the weed killer from the shelf was
a larceny. But Davis cannot support any more than that
proposition. The majority opinion extends Davis far beyond
its natural or logical reach.
      On the other hand, the majority opinion attempts to
distinguish Williams. The majority opinion characterizes
Williams thus: “[T]he defendant Williams used a credit card
that had been ‘re-encoded with a third party’s credit card
information’ to purchase a gift card from a novice Walmart
cashier, who did not know that such purchases were against
company policy—Walmart prohibited the use of credit cards
for purchases of gift cards. [Citation.] After Walmart
‘permitted’ the defendant to keep the first gift card, he tried
to purchase more gift cards at a different register; as a result,
he came under the scrutiny of the store’s loss prevention
personnel. [Citation.] Security guards eventually confronted
the defendant; they pointed out to him that the number on
his credit card did not match the credit card number on the
sales receipt. When the guards attempted to detain the
defendant, he pushed past them and ran.” (Maj. opn. ante,
at p.8, italics added.)
      Williams did not merely try to purchase more gift cards
at a different register; he actually did purchase at least one
more gift card at a different register. And Walmart (a)
suspected Williams of engaging in fraudulent transactions,
and (b) watched him do so, before (c) confronting and
eventually detaining him. Walmart’s loss prevention officer
“directly observed defendant purchase a [second] Walmart
gift card” at a different register. (Williams, supra, 57
Cal.4th at p. 792 (dis opn. of Baxter, J.).) The majority
opinion allows the reader to infer that Walmart’s loss
prevention officers did not know about the fraudulent nature



                               2
of the transactions, and therefore Walmart “consented” to
the transactions.
      Many of the critical facts here are strikingly similar.
Those facts have been omitted from the majority opinion’s
comparison of this case to Williams. Specifically, Reyes
recognized that the bottle of weed killer at issue was a high
theft item and she followed Mireles to the self-checkout
station because she was concerned about the possibility of
theft. Along the way, she asked another employee, Roth, to
act as an approach witness if Mireles did engage in ticket
switching. Both Roth and Reyes watched Mireles put the
different UPC sticker on the bottle of weed killer at the self-
checkout station. As soon as Reyes confirmed from the main
pay station that Mireles had paid only a fraction of the true
price for the weed killer, she moved immediately, pursuant
to company policy, to intercept Mireles, which she did before
he had even reached the parking lot.
      These facts make this case virtually indistinguishable
from Williams. The majority opinion posits that “Home
Depot, in contrast to Walmart, did not rely on a false
representation by Mireles at any point in the transaction.”
(Maj. opn. ante, at p.11.) If that is true, then it must also be
true that Walmart did not rely on Williams when he
purchased a second gift card using re-encoded credit cards
because a Walmart security guard who suspected fraudulent
activity stationed himself on a bench across from the second
register to watch Williams conduct the fraudulent
transaction.



                               3
       We are not without guidance about what constitutes
theft by false pretenses. People v. Traster (2003) 111
Cal.App.4th 1377 (Traster) explained that there is a type of
larceny—larceny by trick—similar to theft by false
pretenses. “Because these crimes share so many similar
characteristics, ‘[t]he distinction between larceny and false
pretenses sometimes depends on a close analysis of facts and
legal principles.’ If ‘title still remains in the owner, larceny
is established: while the crime is false pretenses, if the title,
as well as the possession, is absolutely parted with.’ Stated
differently, if the defendant obtains possession of property for
a specific or special purpose, the owner does not relinquish
title and the crime committed is larceny by trick. On the
other hand, it is theft by false pretenses if the owner of the
property gives the property to the defendant or another he
controls intending the defendant or this other entity to
become the unconditional and unrestricted owner. [¶] A
noted treatise writer explains the difference between the two
crimes when the property at issue . . . is cash . . . . It is
generally held that where the victim hands money to the
wrongdoer with the understanding that the latter is to spend
it only for a particular purpose (thus creating an agency or
trust, it would seem) title does not pass to the wrongdoer; he
has only a power to pass title by spending it for the specified
purpose. Thus where the victim hands money to the
wrongdoer to be invested on the stock marke[t], or to
purchase specified property, or to bribe a particular official,
and the wrongdoer, instead of thus dealing with the money,



                               4
absconds with it, the crime is larceny by trick rather than
false pretenses, the wrongdoer never having acquired title.”
(Traster, supra, 111 Cal.App.4th at pp. 1387-1388, fns.
omitted, italics added.)
      The majority opinion may, therefore, lead to
inconsistent charging and punishment of the same type of
crime. Beyond its omission of critical facts, it offers no clear
measure of the difference between what happened in
Williams and what happened here.
      In summary, the majority opinion finds that Mireles
committed larceny when he first picked up the bottle of weed
killer from the shelf and that larceny became robbery in the
parking lot when a scuffle ensued between Mireles and
Reyes: “The larceny began when Mireles removed the weed
killer from the shelf and it continued until the time he was
arrested.” (Maj. opn., ante, at p. 11.) There was, however, a
transaction between those two events that the majority
opinion does not acknowledge. As in Williams, that
transaction defined the crime. Mireles did not simply pick
up the bottle and walk out of the store without paying for it,
just as Williams did not simply pick up gift cards and walk
out of the store without paying for them. In each case, the
defendant pretended to pay for the product before
absconding.
      I see no meaningful distinction between Williams and
this case. And that the Williams court was aware of (and
cited to) Davis leads me further to conclude that Williams




                               5
knowingly created the distinction the majority opinion now
seeks to ignore.
     Williams is the law and it directs a different outcome
here. I therefore dissent.




           CHANEY, J.




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