People v. Pulley

1

THE PEOPLE, Plaintiff and Respondent, v. MICKEY LARNELL PULLEY, Defendant and Appellant.

F084815

California Court of Appeals, Fifth District

April 2, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No BF183256A. Judith K. Dulcich, Judge.

Kieran D. C. Manjarrez, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Galen N. Farris and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HILL P. J.

INTRODUCTION

Mickey Larnell Pulley (defendant) and Heather Rayford robbed several cigarette cartons from a gas station and a television (TV) from a store. Defendant was convicted of only one count of robbery and sentenced to 10 years in prison. Defendant appeals his conviction and argues that the evidence was insufficient to prove that he did not take the TV under a claim of right, the trial court abused its discretion and denied him a fair trial by excluding evidence of Rayford's exculpatory statements to law enforcement, and that the trial court's instruction to the jury as to his claim-of-right defense was vague and an incorrect statement of the law.

We conclude that defendant's conviction is supported by sufficient evidence, the trial court did not abuse its discretion in excluding Rayford's post-Miranda^[1] exculpatory statements as untrustworthy and the trial court's instruction pursuant to CALCRIM No. 1863 was a correct statement of the law. We affirm the judgment.

PROCEDURAL BACKGROUND

The District Attorney of Kern County filed an information on January 28, 2021, charging defendant with three counts of robbery (Pen. Code, § 212.5, subd. (c); counts 1- 3) and alleging as to counts 1 and 3 that defendant had two prior "strike" convictions within the meaning of the "Three Strikes" law (Pen. Code, §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and two prior serious felony convictions (Pen. Code, § 667, subd. (a)). As to count 2, the information alleged defendant had only one prior strike conviction.^[2] Defendant pleaded not guilty to all counts and denied the allegations.

The trial court granted the prosecutor's motion to dismiss count 3 prior to trial on July 27, 2021. On August 9, 2021, a jury acquitted defendant of count 1 but could not reach a verdict as to count 2.

Prior to retrial, an amended information was filed in open court on June 21, 2022, which added allegations as to count 2 that defendant engaged in violent conduct indicating a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)) and had been previously convicted of numerous crimes or crimes of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)).^[3] After retrial, the jury convicted defendant of robbery as charged in count 2 on June 24, 2022. The trial court found true that defendant had previously been convicted of a prior strike conviction under the Three Strikes law and found true the other sentencing allegations after defendant waived his right to a jury trial.

The trial court denied defendant's motion to dismiss his prior strike conviction and sentenced him on August 17, 2022, to an upper term of 10 years (five years doubled pursuant to Pen. Code, § 667, subd. (e)).^[4] Defendant was ordered to pay victim restitution (Pen. Code, § 1202.4, subd. (f)). The court imposed but stayed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a suspended $300 probation revocation restitution fine (Pen. Code, § 1202.45), a $10 crime prevention fee (Pen. Code, § 1202.5), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)).

Defendant timely appealed on August 17, 2022.

FACTS

On November 6, 2020, K.R. was working as an asset protection associate at a store in Kern County. Surveillance recordings show defendant and Rayford entered the store with a boxed, broken TV in a shopping cart and contacted an employee at the customer service counter. The customer service employee pointed to the service policies, and Rayford and defendant placed the broken TV back into the shopping cart and left the counter. Approximately 35 seconds had passed since they entered the store. After receiving a telephone call from customer service, K.R. watched the surveillance cameras and observed defendant and Rayford as they left the customer service area and proceeded toward the electronics department.

After stopping at the TV area, Rayford and defendant removed the broken TV from their cart and replaced it with a new TV from the store's shelf. Rayford and defendant then walked through the sporting goods department and toward the front door without stopping either at customer service or a cashier's register.

K.R. approached defendant and Rayford, identified himself as an asset protection officer, and asked about the new TV. Neither defendant nor Rayford claimed that any employee had given them permission to exchange the TVs. K.R. then attempted to retrieve the new TV from defendant and Rayford. Defendant became violent and aggressively pushed K.R. multiple times as defendant told K.R. that defendant was taking the new TV and that it was the TV he brought with him into the store. K.R. repeatedly told defendant that K.R. had observed them switch TVs and they could not leave with the new TV that they had removed from the store shelf. Other employees, including the customer service representative who had assisted defendant and Rayford when they entered the store, joined K.R. and also advised them that they could not leave with the new TV.

Defendant never claimed that he was allowed to exchange the broken TV or that he had a right to do so. Defendant repeatedly told K.R. that he would "fucking kick [K.R.'s] ass." Concerned for his own safety and the safety of customers, K.R. backed away from Rayford and defendant.

Defendant and Rayford took the new TV from the store shelf outside the store, and defendant reentered the store and proceeded back to the area where they had left the broken TV. Meanwhile, K.R. went outside the store and retrieved the new TV. Rayford took the new TV from K.R.'s hands inside the store and took it outside again. Defendant arrived back at the store entrance and punched K.R. in the face, chest, arms, and legs.^[5]Defendant ran outside. Neither defendant nor Rayford paid for the new TV.

The sign at the customer service area stated, "Our goal is to satisfy our customers. We will happily exchange or refund merchandise purchased from [the store] within 90 days of purchase with or without a receipt." However, the sign also stated that some legal restrictions, conditions, and exceptions applied. The store had a policy to accept returns both with and without a receipt and a policy specific to the store's private brand items. The store was not required to exchange an item if it did not desire to do so. A typical merchandise exchange was described during trial testimony: a customer went to the customer service return center; the employee looked up the item purchased in the computer or compared it to a receipt to verify that the item was purchased; and the customer retrieved the item from the floor for exchange and returned to the customer service return center to complete the exchange. A customer was not permitted to return their item to the shelf, take a new item, and leave the store without contact with an employee. Management was consulted to return an item costing over $150 without a receipt, and the employee verified the purchase, the date of the purchase, and the identity of the customer.

DISCUSSION

I. Defendant's conviction for robbery is supported by sufficient evidence that defendant feloniously took personal property of another without honestly believing that he had a claim of right.

A. Applicable Law and Standard of Review

In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether it discloses substantial, credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v. Young (2005) 34 Cal.4th 1149, 1181 ["Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact."].) We must accept logical inferences that the trier of fact might have drawn from the evidence even if we would have concluded otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834 (Harris).) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Albillar, at p. 60.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (Young, at p. 1181.)

" '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.' ([Pen. Code, ]§ 211.) In People v. Tufunga (1999) 21 Cal.4th 935, 950 (Tufunga), [our Supreme Court] affirmed that, as at common law, claim of right remains a viable defense to a charge of robbery. 'The claim-of-right defense provides that a defendant's good faith belief, even if...