People v. Smith

In this case we conclude the failure to seek a judgment of acquittal at the close of the prosecution’s case in chief pursuant to Penal Code section 1118.1 waives argument on appeal that the evidence was insufficient at that point to support conviction.

Victor James Smith was found guilty of two counts of burglary, receiving an access card intending to defraud, acquiring access card information with the intend to defraud, forgery of an access card and attempted grand theft. He was sentenced to a prison term of three years. Smith appeals, arguing insufficient evidence, error in the admission of prior convictions to impeach and in failing to strike the attempted grand theft conviction as a lesser included offense of acquiring an access card and access card information with the intent to defraud.

Facts

A. Prosecution Case

On May 7, 1995, appellant went to the will-call desk at Home Depot on Sports Arena Boulevard and presented a typewritten list of items he wished to purchase, including the items’ stock numbers and prices. The total amount of the purchases was $815.81. Appellant filled out a will-call form, giving his name, address and telephone number and gave the clerk…