People v. Brown CA1/1

Filed 8/5/14 P. v. Brown CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION 1

THE PEOPLE, Plaintiff and Respondent, A139499 v. ANDREW THOMAS BROWN, (San Mateo County Super. Ct. No. SC077982) Defendant and Appellant.

INTRODUCTION A jury convicted defendant Andrew Thomas Brown of two counts of second degree robbery (Pen. Code, § 212.5, subd. (c));1 two counts of assault with a deadly weapon (§ 245, subd. (a)); second degree burglary (§ 460, subd. (b)); and petty theft with priors (§ 666). On appeal, defendant contends the trial court prejudicially erred in admitting evidence of three prior theft convictions not only for impeachment, but also to show intent to steal, and giving corresponding jury instructions allowing such use of the priors. The Attorney General concedes error in admitting two of the prior convictions for the purpose of proving intent, but maintains any error was harmless. We agree, and affirm the judgment. BACKGROUND On the evening of March 30, 2013, Freddie Persons and Omari Logan were working as loss prevention officers at a Safeway supermarket in Daly City. They wore plain clothes and carried concealed badges. 1 All further statutory references are to the Penal Code unless otherwise indicated.

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According to prosecution witnesses, defendant entered the Safeway at 8:14 p.m. and pushed his cart to the frozen meat section. Persons testified he and Logan were alerted by the store manager that defendant was stuffing frozen meat into his overalls, and Persons, approaching defendant to investigate, witnessed him stuffing one last steak into his clothes. Under store policy, Persons and Logan had to wait until defendant left the store before they could confront him. A surveillance video showed defendant exiting the store at 8:19 p.m. with a bulge under his chest. Persons and Logan followed defendant to a nearby parking lot, identified themselves as Safeway store security, and displayed their badges. Defendant, when he testified, admitted Persons identified himself, but denied that he displayed a badge. Accordingly, defendant claimed he thought the loss prevention officers were “young thugs” who intended to rob him. Persons told defendant he had to return to the store, and if he had stolen more than $100 worth of merchandise, they would have to call the police. According to Persons, defendant responded, “ ‘Yeah, I know.’ . . . “ ‘I know, I was hungry.’ ” After showing reluctance and saying he did not want to go back to jail, defendant pulled two packages of meat from his overalls. Persons testified that when he bent down to retrieve the meat, defendant pulled out a knife and swung it at the two loss prevention officers.2 Persons and Logan followed defendant as he walked away, but kept at a distance to avoid being cut by the knife. Persons then called 911 and can be heard on the 911 tape, played for the jury, describing the knife incident to the operator and later saying “ ‘Hold on, don’t go too soon, I don’t trust him, that knife, I’m not about to get stabbed.’ ” Defendant claimed he did not have a knife. Daly City Police Officer Nicholas Ottoboni then arrived. Standing beside his police cruiser with his gun drawn, he ordered defendant to stop. Defendant was taken into custody and searched. No knife was found on him, nor was one found along his path, covering about a mile, from Safeway to the site of arrest. In a police interview