People v. Longacre CA3

Filed 11/4/13 P. v. Longacre CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE,

Plaintiff and Respondent, C068477

v. (Super. Ct. No. 10F3692)

DARRELL RYAN LONGACRE,

Defendant and Appellant.

Defendant Darrell Ryan Longacre appeals from a conviction for petty theft with a prior theft-related conviction. He now contends the trial court committed prejudicial error by failing in its sua sponte duty to instruct the jury with CALCRIM No. 224 [use of circumstantial evidence to find guilt], because the prosecution substantially relied on circumstantial evidence to establish that he committed petty theft. Finding no prejudice, we will affirm the judgment.

1

BACKGROUND While on duty as manager of an Auto Zone store, Benjamin Carter observed a man enter his store, pick up some mufflers that were on a shelf, “fumbl[e] about” with his baggy sweatpants, and walk around the back of the store. Although Carter told the 9-1-1 operator that he saw the man put a chrome exhaust tip in his pants, at trial Carter testified that he saw the man fumbling with the mufflers and then with his pants. Carter did not testify that he saw the man put something in his pants. Carter approached the man and asked if he needed any help. The man responded that he did not need help. Carter said the man then “bolted for the door.” But Carter also said the man remained in the store for about 10 minutes before he left. Carter suspected the man had taken something from the store because he “bolted for the door” when Carter asked him a question and because Carter saw a bulge in the man’s sweatpants. The bulge extended from the man’s waist to about his knee. Carter followed the man outside. He took note of the man’s car and wrote down the car’s license plate number. He returned inside the store and called 9-1-1. Carter gave the 9-1-1 operator the license plate number of the car and a detailed physical description of the man. Carter later found an empty Flowmaster brand muffler box in his store. According to Carter, the box should not have been empty. City of Redding Police Officers Justin Duval and Nicholas Weaver were dispatched to the residence of defendant’s girlfriend Whitney Cole in response to a theft report. Defendant lived with Cole. The officers arrived at the residence 13 minutes after Carter’s 9-1-1 call. Officer Weaver saw a car at defendant’s residence which he believed matched the description of the suspect vehicle. Carter reported that defendant left the store in an early- or mid-1990s dark gray, two-door Nissan with the words “O-snap” spray painted on the side. The car Officer Weaver saw was a 1991 grey two-door Ford Probe.