People v. Paen CA4/1

Filed 8/14/25 P. v. Paen CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D084396

Plaintiff and Respondent,

v. (Super. Ct. No. SCE422670)

KYLE JOSEPH PAEN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. Garrick Byers, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Ksenia Gracheva, and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent. Kyle Joseph Paen challenges his robbery conviction by claiming the trial court prejudicially erred when it (1) declined to instruct the jury on petty theft as a lesser included offense of robbery and (2) instead instructed on the

lesser related offense of shoplifting over Paen’s objection. Because Paen failed to establish prejudicial error, we affirm. I. A. In November 2023, an on-duty security guard saw Paen walk into a discount retail store. The security guard recognized Paen from previous store visits and reported him as “suspicious” over the radio to the assistant manager. From her position at the store’s entrance, the security guard watched Paen approach an electronics table and grab three speakers priced “around [$]89.99” each. When the security guard lost sight of Paen, she told the assistant manager that Paen was headed towards the home department, to which the assistant manager reported, “‘I’m on my way to go greet him.’” The assistant manager located Paen in an aisle in the home goods department and testified to seeing him “pulling apart two alarms from two speakers boxes.” The assistant manager watched Paen place the alarms in a basket and then place the speakers inside a blue bag from a different store. Standing towards the right-hand side of the aisle, the assistant manager yelled at Paen to stop removing the alarms and “to pay for [the speakers] or to leave the store.” The aisle was open and unobstructed behind Paen, but he made no attempt to exit that way. Instead, he “walked very fast towards” the assistant manager and “pushed” him with his forearm. When demonstrating how Paen pushed him, the assistant manager “lifted his right arm and rubbed across his forearm area, from the elbow down to the top of his hand.” While the surveillance footage played for the jury at trial, the assistant manager identified himself taking “a step backward” after being “pushed” by