Opinion
D060090 D061988
10-30-2012
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW LLOYD CHANDLER, Defendant and Appellant. In re MATTHEW LLOYD CHANDLER on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD227785)
CONSOLIDATED APPEAL and petition for writ of habeas corpus following a judgment of the Superior Court of San Diego County, Roger W. Krauel, Judge. Petition denied; judgment affirmed.
The criminal prosecution in this case arose out of incidents that occurred at the same CVS Pharmacy (CVS) store on May 18 and June 3, 2010 (all further date references will be to calendar year 2010 unless otherwise indicated). A jury found Matthew Lloyd Chandler guilty of one count (count 1) of assaulting David Beeler with a deadly weapon (a box cutter knife) on June 3 in violation of Penal Code section 245, subdivision (a)(1) (undesignated statutory references will be to the Penal Code unless otherwise specified); and two counts of burglary in violation of section 459 (counts 3 & 5, committed on June 3 and May 18, respectively). The jury found true enhancement allegations that (1) Chandler personally used a deadly weapon within the meaning of section 12022, subdivision (b)(1) in the commission of the June 3 burglary charged in count 3. Out of the presence of the jury, Chandler admitted that he had one strike prior conviction (§§ 667, subds. (b)-(i), 1170.12, 668) and had served eight prior prison terms (§ 667.5, subd. (b), 668).
The jury found Chandler not guilty of (1) committing a second assault on Beeler with a deadly weapon on June 3 in violation of section 245, subdivision (a)(1) as charged in count 2; (2) making a criminal threat to Beeler on June 3 in violation of section 422 as charged in count 4; and (3) committing grand theft of personal property on May 18 in violation of section 487, subdivision (a) as charged in count 6.
At the sentencing hearing, the court denied Chandler's Romero motion to dismiss the prior strike conviction allegation. The court also struck six of the eight prior prison term allegations, and then sentenced Chandler to a total determinate prison term of 14 years four months.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Chandler appeals, contending (1) the court prejudicially abused its discretion and deprived him of his constitutional right to present a defense by excluding, under Evidence Code section 352, evidence of Beeler's employment records and CVS's policy manual on how employees should handle shoplifters, which he claims would have demonstrated that Beeler was the aggressor and his testimony was fabricated; (2) the court prejudicially abused its discretion and deprived Chandler of his constitutional rights to due process and a fair trial by admitting under Evidence Code section 1101, subdivision (b) (hereafter Evidence Code section 1101(b)), over his objection, "other crimes" evidence of a January 2009 "theft incident" in which he was stopped outside of a Vons grocery store after he took items from the store in a backpack; (3) the court abused its discretion by denying Chandler's Romero motion to dismiss the prior strike conviction allegation that was based on his conviction for committing a 1996 robbery; and (4) the cumulative effect of the court's errors require reversal of his convictions because the errors "prevented [him] from challenging Beeler's credibility in a case that hinged on the jury's assessment of credibility."
In his petition for writ of habeas corpus, which he has filed in propria persona, Chandler asserts 23 claims (discussed, post).
By order dated June 5, 2012, this court ordered that Chandler's habeas corpus petition be considered concurrently with his appeal. For purposes of disposition, these cases are consolidated by separate order dated October 30, 2012.
FACTUAL BACKGROUND
A. The People's Case
1. "Other crimes" evidence (Evid. Code, § 1101(b))
Over a pretrial defense objection, the prosecution presented evidence under Evidence Code section 1101(b) (discussed more fully, post) that Chandler committed theft in early 2009 at a Vons store.
2. May 18, 2010 burglary and grand theft of personal property (counts 5 & 6)
Earl Hochdanner testified that at around 9:00 p.m. on May 18, he was working as a shift supervisor at a CVS store. Hochdanner walked into the storage area in the back of the store through a swinging door on which there was a sign reading, "Employees Only Beyond This Point." Hochdanner saw Chandler standing in the open doorway of the restricted liquor cage, which is a large wooden cage wrapped in chicken wire with a locked wooden door where cigarettes, liquor, and electronics were stored. The liquor cage door had a hinge that made the door shut automatically. The door handle locked automatically and, although the door could be opened from the inside without a key, a key was needed to open the door from the outside. Hochdanner observed that the liquor cage light was on and the door was open. The liquor cage door had been locked earlier and the light had been turned off.
When Chandler saw Hochdanner, Chandler first tried to close the liquor cage door, but then opened it back up again. Hochdanner testified that Chandler was wearing a large black backpack that "looked full." Hochdanner asked Chandler what he was doing in the liquor cage. Chandler replied that he was looking for the bathroom and that someone told him the bathroom was in the back. Hochdanner thought Chandler's statement was false because a store employee would have told Chandler the bathrooms were located in the pharmacy area.
Hochdanner then asked Chandler what he had taken, and Chandler responded that he had not taken anything. When Hochdanner asked whether he could look in Chandler's backpack, Chandler said, "Fuck no." Hochdanner asked Chandler to leave the store and then walked him out of the store and watched him leave.
Hochdanner testified he went back to the liquor cage to see if anything was missing and then told his manager he had caught someone in the liquor cage. Hochdanner's manager reminded him that an inventory had just been taken of the items in the liquor cage. Hochdanner checked the cigarettes and determined that 30 cartons of cigarettes, totaling about $1,500, were missing.
Hochdanner inspected the liquor cage to try to determine how Chandler had opened the door and found that the chicken wire had been clipped next to the door frame about a foot and a half below the level of the door handle. The clipped wires looked like they had been pulled apart. Hochdanner put his arm through the hole in the chicken wire and was able to reach the door handle and open the door.
Hochdanner indicated that the store was equipped with a video surveillance system, but the only camera in the rear area of the store behind the swinging doors was by the receiving door "about 100 or 200 feet" away from the liquor cage so nothing that happened inside the cage would have been video recorded. Hochdanner testified that "[w]e had video of the suspect walking in the store and walking out of the store with me." A video clip showing Chandler in the store that night was played for the jury.
3. June 3, 2010: Assault with a deadly weapon (counts 1 & 2), burglary (count 3), and making a criminal threat (count 4)
David Beeler testified that at around 4:50 p.m. on June 3, he was working as the assistant manager at the same CVS store. He went into the back storage room, opened the liquor cage door with his key, turned on the light, and saw Chandler lying on his stomach inside the liquor cage. Beeler saw a few cartons of cigarettes and a beer on the floor next to a backpack, about a foot away from Chandler. As Beeler was standing in the doorway holding the door open, Chandler reached for the backpack and stood up.
Chandler told Beeler, "I don't have anything," and opened the backpack. Beeler recognized Chandler from a photograph of Chandler taken at the store entrance on the night of the prior incident. The store manager had shown the photograph to Beeler and told him to "keep an eye out."
As Beeler was standing in the liquor cage doorway, Chandler walked toward him to get out of the cage, saying, "You ain't got me. You don't got anything on me. You can't do anything." Beeler put his hand out to stop Chandler from leaving and said, "Wait a minute. Wait, wait, wait. You're the guy from last time." Chandler then reached into the front right pocket of his pants, pulled out a standard box cutter knife, and swung it at Beeler's neck. Beeler testified that the box cutter came within about three inches of his neck. Beeler fell back "in shock" out of the liquor cage doorway, and Chandler walked out of the liquor cage and out through storage room doors into the store.
Beeler stated he followed behind Chandler and tried to call 911 from his cell phone but was flustered and misdialed a couple of times. As they passed the photo lab counter, Beeler, who was about 10 feet behind Chandler, yelled out to the photo clerk, Christina Liebelt, that Chandler had tried to stab him and for her to call 911. Beeler testified he had a hard time speaking when he spoke to her, and she thought he was joking. Chandler, who became angry, stopped walking and said something like "I ain't got nothing on you" and then continued walking with Beeler again following him. Beeler testified that as they exited the store through the front entrance, Chandler told him, "You ain't nothing to me. I'll kill you. No problem." Chandler walked across a parking lot toward a bus stop with Beeler following him. Before they reached the bus stop, Chandler turned around, took the box cutter out of his pocket again, and told Beeler something to the effect that he had no problem killing Beeler, and Beeler was nothing to him. Beeler testified that Chandler threatened him with the box cutter he had used in the liquor cage, but this time it only came within about a foot and a half of Beeler's neck.
David Salo, a CVS cashier, testified he was working at the courtesy booth in the front of the store that day when he saw Beeler and Chandler walk past his register. According to Salo, Beeler and Chandler were "in a heated conversation" and a "confrontation of some type" appeared to be going on. Chandler was trying to get out of the store and was aggressively pushing Beeler. Salo testified that Beeler "was trying to delay [Chandler] until the police got there." Chandler told Beeler in a threatening way, "Get out of my way," and Beeler said, "No, you're not going." Salo also heard Chandler make some threatening comment like "I'll hurt you." Chandler was gripping something in his hand, which Salo thought was a box cutter.
Salo followed Beeler and Chandler after they left the store, but he did not see Chandler brandish a weapon toward Beeler. Salo saw Beeler come back. Salo then got into his truck and followed Chandler. Salo stopped a police officer and gave information about the incident.
At around 5:00 p.m. that day, after being flagged down by a CVS employee in the vicinity of the CVS store, San Diego Police Officer Kristopher Spencer found Chandler a couple of blocks away. After Chandler started to walk away, Officer Spencer and another officer drew their service weapons and ordered Chandler to stop and get down to the ground. Officer Spencer took Chandler into custody "as a detention" because he fit the description of the suspect. Chandler had a plain black backpack with shoulder straps, which Officer Spencer impounded.
Officer Spencer searched the immediate area and, in some small hedges about 15 feet from where Chandler dropped to the ground, the officers found a box cutter with an angled retractable blade and a pair of wire cutters, which were also impounded.
B. The Defense Case
Chandler did not testify. Christina Liebelt, the CVS employee who was working in the photo lab of the store on June 3, testified for the defense. She testified that during the incident on that date Beeler told her to call 911. Initially, she thought Beeler was kidding "because he has a dry sense of humor" and makes jokes. Beeler again asked her to call 911 and said something like "[h]e tried to kill me" or "[h]e tried to cut me." This prompted Liebelt to call 911. Liebelt testified she recognized Chandler from a picture she had seen of him. She stated she did not hear Chandler, who was trying to leave the store, make any threats.
San Diego Police Officer Daniel Vaquero testified that he investigated the June 3 incident and interviewed Beeler. Officer Vaquero testified he did not collect any video from the store because "there was no video of the assault in the back cage or in the middle of the store." When asked whether a second alleged attack took place near Liebelt's photo counter, Officer Vaquero replied, "I didn't say that it happened during [sic]the photo counter, sir." At defense counsel's request, Officer Vaquero refreshed his memory by reading the report he prepared and then indicated that Beeler had told him the second attack took place near the photo counter.
On cross-examination, Officer Vaquero stated that Beeler was upset, red, and shaking when the officer talked to him, and he had to console Beeler by saying, "It's okay. You're okay. You're not hurt, and I know this is hard, but it's good that you're reporting it."
DISCUSSION
I. APPEAL
A. Exclusion of Evidence
Chandler first contends the court prejudicially abused its discretion and deprived him of his constitutional right to present a defense by excluding, under Evidence Code section 352, evidence of (1) Beeler's employment records regarding his November 2010 termination from another CVS store and (2) CVS's policy manual on how employees should handle shoplifters, which he claims would have demonstrated that Beeler was the aggressor and his testimony was fabricated. These contentions are unavailing.
1. Background
a. Motions in limine
In an in limine motion, Chandler requested that the court conduct an Evidence Code section 402 hearing prior to Beeler's testimony, "on the grounds that the defense recently learned of [Beeler's] subsequent termination from another CVS store for 'Gross Violation of Policy' which took place on or about [November 13, 2010]." In support of this request, Chandler complained that the prosecution had provided to the defense a "self-serving" version of Beeler's termination, obtained by the prosecution during an unrecorded interview with Beeler, that Beeler had been under stress as the manager of a mismanaged store, that he had "had words" with a complaining customer at the end of a shift, and that when the customer asked Beeler for his identification, he took his CVS employee badge off and threw it down on the counter for the customer to read, resulting in his termination.
Chandler attached to his motion a copy of a CVS "Operations Manual—Shoplifting: Apprehensions/Reporting" (hereafter CVS policy manual) that the prosecutor had provided to the defense. The CVS policy manual stated in part, "Do NOT pursue or chase a fleeing shoplifter" and "Pursuit beyond the entrance/exit of a store will not be tolerated, and may result in disciplinary action up to and including termination."
Chandler also attached a copy of a job data printout indicating Beeler had been terminated in November 2010 from another CVS store as a result of a "Gross Violation."
In his motion, Chandler argued that, "[i]n the event . . . Beeler's conduct with the complaining customer resulting in his discharge was tantamount to an assault or even a 'slight touching' tantamount to a battery under [Penal Code section] 242 it would overcome the [Evidence Code section] 352 test" and must be admitted as impeachment evidence.
In response, the prosecution brought an in limine motion to exclude evidence of both the employment record concerning Beeler's November 2010 termination at another store, and the CVS policy manual.
b. In limine hearings and rulings
On May 2, 2011, the court conducted an in limine hearing on Beeler's and the prosecution's motions, and began by stating to defense counsel, "I don't see the relevancy of the employment records, and I don't see the relevancy of the manual that relates to how CVS employees are supposed to deal with shoplifters."
Chandler's counsel responded that the defense was "entitled to get into" Beeler's actions and state of mind because Beeler had reported to Officer Vaquero that the second attack took place at the CVS store as he and Chandler walked in tandem through the store, with Beeler oftentimes stepping in front trying to block Chandler. Defense counsel said he believed he was entitled at trial to talk about the CVS policy manual, which he claimed was relevant because Beeler had changed his mind "after realizing that he had violated CVS policy" and had testified at the preliminary hearing that the second attack took place in the parking lot outside the
store. Counsel asserted that Beeler's credibility needed to be "demonstrated so that my client can have due process." He also asserted that exclusion of the CVS policy manual would deny Chandler "due process of a competent defense" because getting into Beeler's state of mind was "a very big part of [Chandler's] defense because it shows that [Beeler] was willing to even violate his own policy because . . . his state of mind was that of anger with the fact that with impunity [Chandler] [came] back to that same store" and Beeler was "acting with vigor to stop [Chandler's] egress" from the liquor cage area and out of the store. Defense counsel argued that he needed the opportunity to cross-examine Beeler about his knowledge of the CVS policy and his violation of the policy.
The prosecutor, noting that Chandler was "[t]he person on trial here," argued that Beeler's state of mind was only relevant to the count charging Chandler with making a criminal threat. She also argued under an Evidence Code section 352 analysis that evidence of Beeler's state of mind, Beeler's November 2010 termination, and the CVS policy manual were not only irrelevant, but also created a substantial danger of confusing the issues and misleading the jury because the jury might focus its attention on Beeler's conduct. The prosecutor added that there was no indication that Beeler was even familiar with the CVS policy.
Following the parties' oral arguments, the court, without reaching any issues raised under Evidence Code section 352, found that the evidence of the CVS policy manual and the November 2010 termination of Beeler's employment was not relevant:
"It has not been demonstrated that the terms and conditions of Mr. Beeler's . . . employment are relevant to this case. The reference to [Beeler's] state of mind does not show connection to any of the elements of the offenses or how that would be pertinent to the defense established in that case. I don't reach the [Evidence Code section] 352 issues because there hasn't been demonstrated that the shoplifting operation manual is relevant.
"Mr. Beeler is not on trial for failing to comply with his employer's requirements. So, the motion to exclude . . . is granted.
"As to [introducing] the employment records of Mr. Beeler, my tentative is to deny based on the same rationale, that . . . there's been nothing demonstrated that the reasons for his termination are related to the facts of this case."
Later in the hearing, after the court made its findings, defense counsel orally renewed his request for an Evidence Code section 402 hearing regarding Beeler's November 2010 termination. The court denied the request, stating, "I don't think that the [Evidence Code section] 402 hearings are for discovery purposes. [They are] for resolving evidentiary issue, and there isn't an issue at this point because there's no showing of relevance." The court then made the following ruling granting the prosecution's motion to exclude evidence of Beeler's employment records and references to the termination of his CVS employment:
"People's in limine [motion] No. 6 is granted to exclude employment records of [Beeler] and to exclude records and references to why Beeler was terminated from CVS some five months after this [June 3] incident that we're litigating here. The termination was in November 2010."
The next day, during another in limine proceeding, defense counsel informed the court he had opened Beeler's "CVS records" and found e-mail communications of "management's decision to let him go based on the fact that he slammed or threw down his I.D. badge at a complaining customer." Chandler's counsel requested permission "to ask [Beeler] something to do with that" during his cross-examination of Beeler at trial.
Objecting to this request, the prosecutor stated:
"[Beeler's] termination from his employment five months after this incident on June 3rd was ruled upon by the court yesterday as being wholly irrelevant to the matter at hand before the court and before the jury. I would object to any questions regarding that incident. I don't think it's relevant, and I think it . . . raises an issue that the jury would be served again to be confused or misled by something about Mr. Beeler that has nothing to do with this case."
The court responded:
"The question about why he was terminated would . . . be in violation of the court's in limine order. If Mr. Beeler should say during his testimony, 'I am always polite to customers,' well, that's an issue that can be addressed because it would appear at least on that occasion he wasn't. It really is going to be driven on how Mr. Beeler makes his presentation."
The prosecutor then related Beeler's version of the November 2010 incident:
"Well, the representation made to me by the horse's mouth, so to speak, Mr. Beeler, in this case was that . . . this woman asked for his name because she was upset with him. He told her his name. She said, 'I don't believe you.' He pointed to his name tag on his CVS employee badge and said, 'This is my name.' And then he took it out and tossed it on the counter and threw it on the counter for her to read. He didn't slam it or—so we just have Mr. Beeler's word. I don't think that indicates impoliteness or disrespect in any way."
In reply, the court stated: "I think he should know he shouldn't be raising the issue by something he says. I only see it coming about that way."
The next day, May 4, 2011, Beeler testified on behalf of the prosecution.
2. Applicable legal principles
Evidence Code section 350 provides that only relevant evidence is admissible. Evidence Code section 210 defines relevant evidence as "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."
"[A] trial court has broad discretion in determining the relevance of evidence." (People v. Smithey (1999) 20 Cal.4th 936, 973.) "A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 (Rodriguez).)
Under Evidence Code section 352, evidence is properly excluded if its probative value is "substantially outweighed" by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (§ 352; People v. Cudjo (1993) 6 Cal.4th 585, 609.) A decision to exclude evidence under Evidence Code section 352 comes within the trial court's broad discretionary powers and "will not be overturned absent an abuse of that discretion." (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging.(People v. Karis (1988) 46 Cal.3d 612, 638.)
3. Analysis
Chandler asserts the evidence of both Beeler's November 2010 termination and the CVS policy manual regarding the store's shoplifting policy had "strong probative value" to his defense because "[t]he principal issue at trial was whether the prosecution's crucial witness [(Beeler)] was credible." He claims the court prejudicially abused its discretion and deprived him of his constitutional right to present a defense by excluding that evidence. He asserts "it deprived [him] of the opportunity to show the jury that Beeler was the aggressor in this case and [he] was terminated for his behavior, he was not in fear, he was acting in violation of CVS policy, [Chandler] did not attack [Beeler], and to discredit Beeler's testimony." In support of his claim that Beeler was "not credible and gave inconsistent versions" of the June 3 incident, Chandler asserts the evidence shows that, "on the date of the incident, Beeler initially told [Officer] Vaquero that a second attack took place inside the store near the photo counter, that he did not follow [Chandler] once [Chandler] exited the store, and that Beeler followed [Chandler] from four feet behind him and did not jump in front of him." Chandler also asserts that, at trial, Beeler "testified that the second attack took place in the parking lot after Beeler followed [him] out of the store into the parking lot and to the bus stop."
We conclude the court acted within the broad scope of its discretion when it excluded as irrelevant the evidence proffered by the defense regarding the termination of Beeler's employment. Chandler sought to introduce evidence that Beeler was terminated in November 2010, almost six months after the June 3 incident at issue in this case, based on an incident at a different CVS store. That incident was so dissimilar in nature to the June 3 incident at issue in this case that we conclude Chandler has failed to meet his burden of showing the court acted in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (See Rodriguez, supra, 20 Cal.4th at pp. 9- 10.) Specifically, we conclude Chandler has failed to show that the proffered evidence has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action" (Evid. Code, § 210), such as whether Beeler was the aggressor or was angry during the June 3 incident as Chandler contends.
With respect to the proffered evidence of the CVS policy manual regarding the reporting of suspected shoplifting and treatment of suspected shoplifters, we assume, without deciding, that the court erred by excluding that evidence on the ground it was not relevant. As already noted, that evidence showed the CVS policy manual instructed employees, "Do NOT pursue or chase a fleeing shoplifter" and "Pursuit beyond the entrance/exit of a store will not be tolerated, and may result in disciplinary action up to and including termination." In light of the evidence showing that following the incident on June 3, Beeler told Officer Vaquero the second alleged attack by Chandler took place inside the store, contradicting his testimony at trial that the second attack took place outside the store in the parking lot, the evidence of the CVS policy manual may have had a modicum of relevancy on the issue of Beeler's credibility.
In making this assumption with respect to the court's relevancy ruling, we are mindful of the fact that the record shows the court did not rule on the prosecutor's argument that evidence of the CVS policy manual should be excluded under Evidence Code section 352 because (the prosecutor asserted) it "would certainly create a substantial danger of confusing the issues or misleading the jury. The jury would focus its attention on the conduct of Mr. Beeler . . . ." Were it necessary for this court to reach the merits of the prosecution's Evidence Code section 352 claim, we would conclude that evidence of the CVS policy manual was properly excludable under that section.
Even assuming error, however, we reject Chandler's claim that his convictions of counts 1, 3, and 5 must be reversed because (he asserts) the court's error was prejudicial. Chandler contends we must apply the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 to his claim because "the trial court's error in excluding the evidence violated [his] federal constitutional rights." We reject this contention because the court's assumed error does not rise to the level of constitutional error. Chandler contends the court's exclusion of the evidence of Beeler's employment records and the CVS policy manual "deprived [him] of the ability to present a defense." However, as we now explain, the record does not support this contention.
Under the Chapman harmless error standard, "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681; see Chapman v. California, supra, 386 U.S. at p. 24.)
The United States Constitution guarantees a criminal defendant "'a meaningful opportunity to present a complete defense.'" (Crane v. Kentucky (1986) 476 U.S. 683, 690.) The right to present a defense generally requires that an accused have the opportunity "'to present all relevant evidence of significant probative value to his defense.'" (People v. Babbitt (1988) 45 Cal.3d 660, 684, quoting People v. Reeder (1978) 82 Cal.App.3d 543, 553; original italics.) "Although the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right." (People v. Cunningham (2001) 25 Cal.4th 926, 999 (Cunningham), italics added.) Furthermore, "[a] defendant's right to present relevant evidence is not unlimited" and may be restricted in circumstances where necessary "'"to accommodate other legitimate interests in the criminal trial process,"'" such as adherence to standard rules of evidence. (United States v. Scheffer (1998) 523 U.S. 303, 308; see also Taylor v. Illinois (1988) 484 U.S. 400, 410.)
Here, the trial record demonstrates that Chandler had a meaningful opportunity to present a complete defense. The court's exclusion of the evidence at issue here did not prevent Chandler from presenting other evidence challenging Beeler's credibility and supporting his defense that Beeler was not a credible prosecution witness, and that Beeler was angry and the initial aggressor during the June 3 incident. For example, on direct examination defense counsel asked Liebelt, the CVS employee who was working in the photo lab area of the store, to describe what she observed during the incident in front of the photo counter. Chandler's counsel elicited Liebelt's testimony that Chandler was trying to leave the store and then asked her whether Beeler was doing anything to "impede [Chandler] from leaving." Liebelt testified that Beeler "was trying to kind of position himself in front of [Chandler] or kind of block his way from leaving the store." Liebelt also stated that Beeler appeared to be agitated and upset.
Defense counsel thoroughly cross-examined Beeler about his actions during the June 3 incident and repeatedly asked him whether he was angry at Chandler in the liquor cage area inside the store and in the parking lot. He also vigorously questioned Beeler about the inconsistencies in his accounts of where the alleged second attack occurred.
In addition, defense counsel vigorously argued during his closing arguments that Beeler lied to Officer Vaquero during his investigation of the incident by telling the officer he had not followed Chandler outside the store into the parking lot. Specifically, defense counsel told the jury that Beeler "is willing to lie and, perhaps, he wasn't supposed to follow [Chandler] out of the store, but we have evidence that not only did he lie to Officer Vaquero and walk out of the store, but he walked into the parking lot [and] stayed sometimes within arm's length of [Chandler] . . . ." Defense counsel also argued that, "Officer Vaquero stands up there and said [Beeler] looked like a man visibly shaken, but that same man lies to Officer Vaquero. That's the kind of man [Beeler] is. He's a man who will walk through that door, sit on that stand, swear under penalty of perjury to tell the truth, get up there and say he followed [Chandler] because he was so fearful, and then we have other witnesses who have no reason to lie and who do tell the truth because they are consistent with what happened." Defense counsel also argued to the jury that Beeler was "very angry" when he discovered Chandler inside the liquor cage. Specifically, he told the jury, "Now, going back from the swinging doors that are near the corral area, in the corral area when [Chandler] starts all of this con job, Mr. Beeler is very angry and stands in front of the door . . . saying[, "Y]ou're not just going to walk out of here.["]
Throughout his closing, defense counsel repeatedly attacked Beeler's credibility and his account of the incident. Counsel argued that Beeler told Officer Vaquero that the second attack took place by the photo counter where Liebelt was working, but testified at the preliminary hearing and at trial that the second attack occurred in the parking lot. Chandler's counsel pointedly argued to the jury that "Beeler is not credible."
The foregoing record demonstrates that the court's exclusion of the evidence did not prevent Chandler from vigorously presenting the defense that Beeler was not a credible witness and Beeler was both angry and the initial aggressor during the June 3 incident. Because Chandler has failed to show a "complete exclusion of evidence intended to establish an accused's defense" (Cunningham, supra, 25 Cal.4th at p. 999), we conclude he has failed to show the court's assumed error rises to the level of constitutional error requiring the application of the Chapman harmless error standard.
Because the court's assumed error does not rise to the level of constitutional error, the applicable harmless error standard is the one set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Marks (2003) 31 Cal.4th 197, 226-227 ["[T]he application of ordinary rules of evidence like Evidence Code section 352 does not implicate the federal Constitution, and thus we review allegations of error under the 'reasonable probability' standard of Watson, supra, 46 Cal.2d at page 836."].) Under the Watson standard, if a trial court erroneously excludes evidence, the defendant must show on appeal that it is reasonably probable he or she would have received a more favorable result had that evidence been admitted. (Watson, at p. 836; People v. Rodrigues (1994) 8 Cal.4th 1060, 1125.)
Applying the Watson standard, we conclude Chandler has failed to meet his burden of showing it is reasonably probable Chandler would have received a more favorable result had the excluded evidence been admitted. We begin by noting that the jury, by returning a verdict finding Chandler not guilty of assaulting Beeler with a deadly weapon as charged in count 2, acquitted Chandler of what defense counsel referred to as the "second attack" during the June 3 incident. Chandler has failed to show that, but for the exclusion of evidence, it is reasonably probable the jury would have found him not guilty of count 1, which charged him with assaulting Beeler with the box cutter knife inside the liquor cage. The prosecution presented substantial evidence corroborating Beeler's testimony that Chandler had a backpack when he found Chandler inside the liquor cage and that Chandler used a box cutter knife during the assault. Specifically, the prosecution presented evidence that when the police took Chandler into custody because he fit the description of the suspect, he had a plain black backpack with shoulder straps, which was impounded. Officer Spencer testified that when he searched the immediate area where Chandler was taken into custody, he found in some small hedges, about 15 feet from where Chandler dropped to the ground, a box cutter with an angled retractable blade and a pair of wire cutters, which were also impounded.
In addition, Salo, the CVS cashier, corroborated Beeler's testimony that as he and Chandler exited the store, Chandler told him, "I'll kill you." Specifically, Salo testified he heard Chandler make a threatening comment like "I'll hurt you."
Chandler has also failed to show that, but for the exclusion of evidence, it is reasonably probable the jury would have found him not guilty of either the June 3 burglary charged in count 3 or the May 18 burglary of the same store as charged in count 5. For all of the foregoing reasons, we conclude Chandler's contention that the court prejudicially abused its discretion and deprived him of his constitutional right to present a defense by excluding evidence of Beeler's employment records and the CVS policy manual is unavailing.
B. Admission of Other Crimes Evidence
Chandler also claims the court prejudicially abused its discretion and deprived him of his constitutional rights to due process and a fair trial by admitting under Evidence Code section 1101(b), over his objection, other crimes evidence of a January 2009 theft incident in which he was stopped outside of a Vons grocery store after he took items from the store in a backpack without paying for them. We reject this claim.
1. Background
a. Pretrial ruling
The prosecution brought an in limine motion seeking permission to present at trial evidence pertaining to Chandler's 2009 prior conviction (People v. Chandler (Super. Ct. San Diego County, 2009, No. SCD218357)) for committing theft at a Vons store. The prosecutor argued that evidence of that crime was admissible under Evidence Code section 1101(b) to show that in committing the theft-related offenses Chandler was accused of committing in this case on May 18 and June 3, he harbored "the same state of mind" he harbored when he committed theft at the Vons.
As already discussed, Chandler was charged with committing three theft-related crimes during two incidents at the same CVS store: two counts of burglary in violation of section 459 (counts 3 & 5, committed on June 3 and May 18, respectively) and one count of grand theft of personal property on May 18 in violation of section 487, subdivision (a) (count 6).
Defense counsel argued that evidence of the 2009 theft incident should be excluded to protect Chandler's rights to due process and a fair trial because that earlier case was not similar to the crimes charged in this case.
The court granted the People's in limine motion, stating:
"People's in limine [motion No.] 4 is granted in part. As to case No. . . . SCD218357, it would appear from the facts of that case, as presented, that [Chandler] was in possession of a backpack when he entered the [Vons] store and used that backpack in the commission of the crime back in January 2009. That is probative of his intent when he had a backpack with him and entered the current [CVS] store."
The court then allowed defense counsel to reopen his argument in opposition to the People's motion, and defense counsel argued that "the use of a backpack is really a commonplace item used for concealing things by thieves in stores." He also argued that, "[h]ere, the facts are very generic in the sense that many people use backpacks to steal from stores. Here, we have a placing of items into a shopping cart. There's no shopping cart involved here. It's merely a backpack. A backpack is a generic tool for shoplifters, you know. And so I would just reassert my objection as to case ending [with] 357."
Later at trial, before the prosecution's first witness testified about the prior theft incident, the court summarized (outside the presence of the jury) its ruling granting the People's in limine motion:
"The court's in limine motion [ruling] was to allow the January 15th, 2009, conduct to be used to show intent. The discussion at that time . . . was focusing on [the fact that Chandler] had equipped himself with a backpack, and it was used in that January 15th, 2009, event."
b. Evidence of the 2009 theft
Over Chandler's objection under Evidence Code section 1101(b)), Richard Ross testified at trial that on January 15, 2009, at around 8:00 p.m., he was an undercover loss prevention supervisor working inside a Vons store, when Chandler caught his attention. Chandler was walking through the store pushing a shopping cart that had a large backpack or duffel bag in it. Ross saw Chandler put 20 one-pound blocks of cheese into his cart. Chandler then walked over to a Starbucks display and put two Starbucks drinks into the backpack or duffel bag in the cart.
Ross testified he saw Chandler walk to the other side of the store "to one of the farther aisles" and put the cheese blocks into the backpack or duffel bag with the Starbucks drinks. Chandler then removed the backpack or duffel bag from the cart, put it on, walked towards the exit, and left the store without making any effort to stop at a cash register and pay for the items he took. Ross followed Chandler outside the store, identified himself to Chandler, and took him into custody.
c. CALCRIM No. 375
After the parties rested, the court gave the jury a limiting instruction concerning the foregoing other crimes evidence, using a modified version of CALCRIM No. 375:
"The prosecution has presented evidence concerning a theft committed by the defendant on Jan[uary] 15, 2009, that is not charged in this case.
"You may consider this evidence only if the prosecution has proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense on Jan[uary] 15, 2009. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the prosecution has not met this burden, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offense on Jan[uary] 15, 2009, you may, but are not required to, consider
that evidence for the limited purpose of deciding whether or not: [¶] the defendant entered the CVS store on May 18, 2010 with the intent to commit theft. [¶] And whether or not the defendant entered the CVS STORE on June 3, 2010, with the intent to commit theft. "Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of burglary as charged in Counts 3 and 5. The prosecution must still prove each element of each charge beyond a reasonable doubt."
2. Applicable legal principles
Evidence Code section 1101, subdivision (a) "prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion." (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Thus, evidence of other crimes or bad acts is inadmissible when it is offered to show that a defendant had the criminal disposition or propensity to commit the crime charged. (Evid. Code, § 1101, subd. (a).)
Evidence Code section 1101(b) "clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (Ewoldt, supra, 7 Cal.4th at p. 393, fn. omitted.) Specifically, Evidence Code section 1101(b) provides that nothing in that section "prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."
For evidence of uncharged misconduct to be admissible under Evidence Code section 1101(b) to prove such facts as motive, intent, identity, or common design or plan, the charged offenses and uncharged misconduct must be "sufficiently similar to support a rational inference" of these material facts. (People v. Kipp (1998) 18 Cal.4th 349, 369.) "The least degree of similarity . . . is required in order to prove intent." (Ewoldt, supra, 7 Cal.4th at p. 402.) The uncharged misconduct need only be "sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same [or similar] intent in each instance.(Ibid.; see People v. Memro (1995) 11 Cal.4th 786, 864-865 [defendant's uncharged conduct of possessing sexually explicit photographs of young males ranging from prepubescent to young adult admissible to show intent to sexually molest young boy].)
If the trial court determines that uncharged misconduct is admissible under Evidence Code section 1101(b), it must then determine whether the probative value of the evidence is " 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' " (Ewoldt, supra, 7 Cal.4th at p. 404; Evid. Code, § 352.)
c. Standard of review
We review the trial court's rulings under Evidence Code sections 1101 and 352 for an abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) We will not disturb the trial court's exercise of discretion except upon a showing that it "exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
3. Analysis
We conclude the court did not abuse its discretion under Evidence Code sections 1101 and 352 by admitting Ross's testimony regarding Chandler's uncharged prior act of stealing merchandise from a Vons store in January 2009. Ross's testimony was relevant to prove a fact other than Chandler's disposition or propensity to commit the theft-related crimes (burglary and grand theft of personal property) charged in this case in counts 3, 5, and 6. Specifically, for purposes of Evidence Code section 1101(b), Ross's testimony was relevant to prove Chandler acted with intent to steal during the May 18 and June 3 incidents at the CVS store. That the question of whether Chandler acted with intent to steal was a factual issue at trial is shown by the court's jury instructions. The court instructed the jury under CALCRIM No. 1700 that, in order to find Chandler guilty of burglary as charged in counts 3 and 5, the prosecution was required to prove beyond a reasonable doubt that Chandler acted with the specific intent to commit theft when he entered the building. The court also instructed the jury under CALCRIM No. 1800 that, in order to find Chandler guilty of grand theft as charged in count 6, the prosecution was required to prove beyond a reasonable doubt that Chandler took the property with the intent to permanently deprive the owner of it. In addition, the court instructed the jury under CALCRIM No. 1800 that a theft occurs when (1) the defendant takes possession of property owned by someone else; (2) the defendant takes the property without the owner's consent; (3) when the defendant takes the property, he intends to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property; and (4) the defendant moves the property and keeps it for any period of time.
On the issue of whether the charged offenses and the uncharged 2009 theft were sufficiently similar to support the inference that Chandler probably harbored the same intent to steal in each instance (Ewoldt, supra, 7 Cal.4th at p. 402), substantial evidence shows that the May 18 and June 3 incidents at the CVS store share a number of distinctive similarities with the 2009 theft incident at the Vons. In all three incidents, Chandler targeted commercial retail businesses. In all three incidents, Chandler used a large backpack and went to a remote part of the store with intent to commit theft. Also, the charged and uncharged incidents occurred less than one year apart, and the CVS store was located in the same general area as the Vons store. Because only the "least degree of similarity" between the uncharged misconduct and the charged offenses is required in order to prove intent (Ewoldt at p. 402), we conclude the similarities between Chandler's prior uncharged theft at the Vons in 2009 and the burglary and grand theft offenses he was charged with committing at the nearby CVS store in 2010 are sufficient to support the court's decision to admit the other crimes evidence of the 2009 theft incident. We thus conclude that Ross's testimony was admissible under Evidence Code section 1101(b) to prove the specific intent elements of the burglary and grand theft offenses charged in counts 3, 5, and 6.
We also conclude that Chandler has failed to meet his burden of showing that the probative value of the evidence of the 2009 theft incident was substantially outweighed by the probability that its admission would necessitate undue consumption of time, or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (§ 352; People v. Cudjo, supra, 6 Cal.4th at p. 609.) The presentation of Ross's testimony regarding the 2009 incident did not necessitate undue consumption of time, as shown by the fact that his testimony is set forth on only eight pages of the reporter's transcript. The evidence of Chandler's conduct during the 2009 incident is no more inflammatory than the evidence of his behavior during the two 2010 incidents at issue in this case. All three incidents involved an accusation that Chandler acted with intent to commit theft at a retail business. Chandler's claim that admission of the evidence of the 2009 theft incident was "highly prejudicial" is refuted by the fact that the jury found he was not guilty of (1) committing a second assault upon Beeler with a deadly weapon on June 3, as charged in count 2; (2) making a criminal threat against Beeler on June 3, as charged in count 4; and (3) committing grand theft on May 18, as charged in count 6. Also, the court gave a limiting instruction concerning the other crimes evidence, using a modified version of CALCRIM No. 375 (discussed, ante). Absent a showing to the contrary, we must presume the jury followed that instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
For all of the foregoing reasons, we conclude the court did not abuse its discretion in admitting under Evidence Code section 1101(b) the evidence of the 2009 theft incident.
C. Denial of Chandler's Romero Motion
Chandler next contends the court abused its discretion by denying Chandler's Romero motion to dismiss the prior strike conviction allegation that was based on his conviction for committing a 1996 robbery. We reject this contention.
1. Background
In his Romero motion to strike his 1996 prior strike robbery conviction (§ 211), Chandler described the robbery, stating he "took some wine from a store's display and when confronted by a clerk, swung a wine bottle at him." Citing a psychological evaluation, Chandler argued he suffers from "major depressive" and anxiety disorders and kleptomania, his father was killed when Chandler was young, his mother's boyfriends abused him, and he moved out when he was 16 years of age. He asserted that his behavior "is rooted in his psychological disorders and substance abuse, which require extensive treatment," and he "may be able to rehabilitate in the right environment [and] with the right treatment."
At the July 6, 2011 presentencing hearing on Chandler's Romero motion, his counsel argued that no one was injured during the 1996 robbery and reiterated that Chandler suffers from emotional disorders stemming from his childhood, as well as kleptomania. The prosecutor argued that there was nothing to indicate that Chandler, who was then 47 years old, was capable of rehabilitation because he had been in the criminal justice system since he first became an adult; he had not taken advantage of rehabilitation opportunities provided to him; and he had "been given many opportunities, not only on probation, but on parole, and each time he's had this rapid-fire recidivism where he gets out of prison and within days he's recommitting, reoffending these crimes." The prosecutor stated that, "in all of [Chandler's] crimes, there's a theme. There's drugs. There's theft. There's the intermittent use of violence." The prosecutor noted that in the current case, Chandler assaulted Beeler with a box cutter knife by swinging it at Beeler's neck; he was armed with a box cutter when he committed his 2009 offense at the Vons store; and in 1997 he actually cut another victim with a box cutter, slicing the leg open almost to the bone.
The probation report disclosed that Chandler committed theft when he was 21 years old, and since that time he had been placed on informal and formal probation and sentenced to eight prison terms after committing seven misdemeanor and 10 felony conviction for "crimes of theft, providing false information to police officers, possession of drugs for sale, drug abuse, escape, robbery, and assault causing injury." The report stated that Chandler's "compliance with supervision on any level has been poor," and he was on parole when he committed his current crimes in this case. The report concluded that Chandler "clearly has demonstrated he is a danger to the community," his "criminal history demonstrates recurring violent behavior," he "has a history of probation and parole violations," he "has not displayed any self-help to improve his life," he is incapable or unwilling to change his lifestyle, and "a long period of incarceration would protect the community and himself from additional disparaging and dangerous behavior." The probation report recommended that Chandler be sentenced to a prison term of 22 years four months.
a. Ruling
The court noted it had read and considered the probation officer's report, a letter from Beeler attached to that report, Chandler's Romero motion; the defense sentencing memorandum, which included a psychological evaluation by Dr. Robert Klein; and the prosecution's statement in aggravation.
Following oral arguments, the court denied Chandler's Romero motion. The court found that Chandler remained a significant danger to society, and the granting of his motion would not be in the interest of justice.
2. Applicable legal principles
Section 1385, subdivision (a) (hereafter section 1385(a)) provides in part that a trial court "may, either of [its] own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes."
In Romero, supra, 13 Cal.4th 497, the California Supreme Court held that section 1385(a) permits a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). (Romero, supra, at pp. 529-530.) The Romero court emphasized that "[a] court's discretion to strike prior felony conviction allegations in furtherance of justice is limited. Its exercise must proceed in strict compliance with section 1385(a), and is subject to review for abuse." (Romero, at p. 530.) Although the Legislature has not defined the phrase "in furtherance of justice" contained in section 1385(a), Romero held that this language requires a court to consider both the constitutional rights of the defendant and the interests of society represented by the People in determining whether to strike a prior felony conviction allegation. (Romero, at p. 530.)
In People v. Williams (1998) 17 Cal.4th 148, 161, our state Supreme Court further defined the standard for dismissing a strike "in furtherance of justice" by requiring that the defendant be deemed "outside" the "spirit" of the Three Strikes law before a strike is dismissed: "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to . . . section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies."
In People v. Carmony (2004) 33 Cal.4th 367, our high state court held that a trial court's decision not to dismiss a prior conviction allegation under section 1385 is reviewed under "the deferential abuse of discretion standard." (Carmony, at p. 371.) Carmony explained that when reviewing a decision under that standard, an appellate court is guided "by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citation.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
3. Analysis
Applying the deferential abuse of discretion standard, as we must (People v. Carmony, supra, 33 Cal.4th at p. 371), we conclude Chandler has failed to meet his burden on appeal of showing that the court's denial of his Romero motion was an abuse of discretion and that he should be deemed to be outside the spirit of the Three Strikes law. The record before the trial court demonstrated that Chandler committed his first crime when he was 21 years of age, he has committed numerous serious and violent felonies and has been in and out of prison many times since that time; and, as the prosecutor appropriately argued in her opposition to Chandler's motion, he "has habitually reoffended upon his release each time, demonstrating his blatant refusal to respect and abide by the conditions of parole and the requirements of the law." The record shows Chandler was on parole when he committed his crimes in this case, he is either incapable or unwilling to address his mental health and substance abuse issues, and he presents a danger to society when not in custody. Because the record supports a finding that Chandler clearly falls within the spirit of the Three Strikes law, we affirm the court's order denying his Romero motion.
D. Claim of Cumulative Error
Last, Chandler contends the cumulative effect of the court's errors require reversal of his convictions because the errors "prevented [him] from challenging Beeler's credibility in a case that hinged on the jury's assessment of credibility."
1. Applicable legal principles
A series of trial errors, though harmless when considered independently, may in some circumstances rise by accretion to the level of prejudicial, reversible error. (Cunningham, supra, 25 Cal.4th at p. 1009.)
2. Analysis
Here, Chandler has failed to meet his burden of showing any cumulative errors or prejudice that would require this court to reverse any of his convictions in this matter. Accordingly, we reject his cumulative error claim.
II. HABEAS CORPUS PETITION
In his habeas corpus petition, Chandler asserts 23 claims. We conclude he has failed to meet his heavy initial burden of presenting a prima facie case for relief.
A. A Summary of Habeas Corpus Procedure
"When presented with a petition for a writ of habeas corpus, a court must first determine whether the petition states a prima facie case for relief—that is, whether it states facts that, if true, entitle the petitioner to relief—and also whether the stated claims are for any reason procedurally barred." (People v. Romero (1994) 8 Cal.4th 728, 737.)
"Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief . . . . 'For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society's interest in the finality of criminal proceedings so demands, and due process is not thereby offended.'" (People v. Duvall (1995) 9 Cal.4th 464, 474, quoting People v. Gonzalez (1990) 51 Cal.3d 1179, 1260, first italics added.)
To satisfy this heavy initial burden of pleading adequate grounds for relief, the habeas corpus petition must plead the facts with particularity and should "include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations." (People v. Duvall, supra, 9 Cal.4th at p. 474.) "'Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.'" (Ibid., quoting People v. Karis (1988) 46 Cal.3d 612, 656.) These rules apply even when a habeas corpus petition is prepared by a defendant in propria persona. (People v. Karis, at p. 656.)
"If . . . the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an [order to show cause]." (People v. Duvall, supra, 9 Cal.4th at p. 475.) However, a habeas petition may be resolved by a summary denial of the petition when the court determines the petitioner has not presented a prima facie case for relief. (Ibid.; Younan v. Caruso (1996) 51 Cal.App.4th 401, 407-408.)
B. Pleadings
In his petition, Chandler asserts the following 23 claims:
1. His previous three appointed defense attorneys provided ineffective assistance by failing to conduct a reasonable pretrial investigation and secure a security video of the June 3 incident at the CVS store, with the result that the video was destroyed before his trial attorney attempted to subpoena it.
2. Investigative agencies and the State committed Brady violations by failing to take "into custody" the security video of the June 3 incident.
3. The State allowed exculpatory evidence—a security video of the June 3 incident—to be destroyed in violation of his constitutional rights under the federal and state Constitutions.
4. His conviction resulted from an identification made by "one of the witnesses to the earlier of the two sep[a]rate charged cases" during an "unconstitutionally suggestive lineup" in the courtroom during the preliminary examination, in violation of his constitutional rights under the federal and state Constitutions.
5. The State committed Brady violations by failing to "disclose in a timely manner that the police report that indicated that no video evidence of the [June 3] incident at the [CVS] store was available was in fact . . . false and that at one time the police had reviewed the video during the course of their investigation of [that] incident but failed to take the security video into custody, [and,] in addition[,] the district attorney's witness against [Chandler] had informed the D.A. that he himself had reviewed the store security video of [the] incident and confirmed to the D.A. that [Chandler] in fact appeared on [June 3 CVS] store security video."
6. By the time he gave up his pro per status and had been assigned three different attorneys, the CVS store security video of the June 3 incident had been destroyed in "bad faith," resulting in the violation of his constitutional rights under the federal and state Constitution.
7. During trial he was denied access to confidential CVS employee and disciplinary records showing that that a prosecution witness "had been fired by [CVS] and that complaints had been placed against by customers for aggressive behavior," resulting in the violation of his constitutional rights under the federal and state Constitutions.
8. Chandler's trial counsel "had a conflict of int[e]rest which materially compromised the defense." Specifically, "[a]t no point during [his] trial did his lawyer bring to the notice of the court either oral[l]y or through motions that two of [his] prior lawyers who worked in the same office as [his] trial lawyer failed to secure for the defense exc[ul]patory evidence despite receiving both oral and written notice from the petitioner that failure on their part to secure this evidence would result in its being destroyed."
9. Chandler's trial counsel provided ineffective assistance by (1) "fail[ing] to raise many issues that could have led to the dismiss[a]l of charges against the petitioner," even after counsel received notice from Chandler showing "that exc[ul]patory evidence had been destroyed, that previously appointed counsel had in fact been ineffective in conducting a pre-trial investigation, [and] that the prosecutor was misstating material facts that should be objected to"; (2) "fail[ing] to object to the prosecutor[']s knowin[g]ly using perjured testimony from a witness"; and (3) "failing to raise the issue of prosecutorial misconduct."
10. The prosecutor violated his right to a fair trial by using perjured testimony. Specifically, "[t]he prosecutor knowingly used perjured testimony to obtain the conviction of petitioner" in that "the prosecutor[']s witness had repeatedly and substant[ially] changed sworn testimony from initial police reports indicating that both of the two alle[]ged attacks on the witness by the petitioner occur[r]ed while still in the [CVS] store and that the witness being in such fear for his life that when the petitione[r] exited the store that witness did not follow the petitioner from the store, while in prelim[inary] testimony the witness now claims that of the two alleged attacks only one occur[r]ed in the store while the second attack occur[r]ed outside of the store and that the victim now followed the petitioner out of the store."
11. Chandler's trial counsel "so utterly failed to defend against the charges that the trial was the functional equivalent of a guilty plea,
rendering counsel's representation presumptively inadequate" in violation of Chandler's right to counsel and due process of law.
12. The prosecutor committed misconduct and violated Chandler's right to due process and a fair trial by (1) "repeatedly misstat[ing] that material evidence was not available to the D.A. to provide to the defense, [and] that material evidence available to the D.A. only showed what was claimed by the D.A. but in fact . . . showed the opp[o]s[i]t[e] of what was claimed by the D.A."; (2) knowingly calling a witness "to introduce perjured testimony"; and (3) "knowingly allow[ing] requested evidence [(CVS store security video of the June 3 incident)] to be destroyed."
13. The prosecutor violated Chandler's right to a fair trial and due process by misstating material facts to obtain his conviction. Specifically, the prosecutor "repeatedly stated to the court and the defense that requested and subpoen[a]ed discovery material was not available or that requested material ([CVS] store security video of the [June 3] incident) would not show cert[a]in camera angle[]s that would have shown the petitioner not guilty of the charges."
14. He was denied a fair trial in that his trial counsel "was denied the ability to cross-examin[e] the witness used by the [prosecutor] to convict [him]" regarding "why he had been fired from the [CVS] company."
15. He was denied a fair trial "when the court improperly restricted the right to present evidence of significant probative value." Specifically, (1) the "employment file[]s" of "prosecutor[']s witnesses" and "why they were fired," (2) "material concerning [CVS] policy in reg[]ards to detaining shoplifting suspects," and (3) "a blown up ex[h]ibit of the [CVS] policy concerning the detaining of shoplifting suspects."
16. The court violated his right to a fair trial by "unconstitutionally depriv[ing him] of the right to instructions on the defense theory" that "the prosecution's witness had been fired from his job at [CVS] according to the witness for being aggressive with a customer" in violation of CVS policy regarding the detaining of shoplifting suspects."
17. The evidence was insufficient to support his conviction "due to the fact that the jury was never made aware of the fact" that (1)
"video eviden[c]e of the [June 3] incident" was "allowed to be destroyed by the state," (2) the jury was not instructed that "at one time the state posse[sse]d this video evidence," and (3) "the prosecution witness had been fired by [CVS] for violation [of] store policy."
18. He was denied a fair trial because his conviction was "based on evidence known to be false," in that the prosecution "knowingly allowed their witness to present on the stand to the jury false evidence in the form of perjured testimony."
19. He was denied a fair trial because "state rules of evidence were applied in a way which denied [him] the right to present a complete defense" in that the court did not allow the defense to inform the jury that "the D.A. witness had been fired for violations of [CVS] company policy" or that the prosecution had allowed "video evidence" of the June 3 incident to be destroyed.
20. He was denied a fair trial due to "state court errors" in that the trial court denied defense counsel's request to "question the District Attorney[']s witness in regards to his being fired by [CVS]" and to present to the jury that witness's employment and dis[c]iplinary records, as well as CVS's policy on detaining shoplifting suspects, and also "allowed potentially exc[ul]patory evidence to be destroyed."
21. He was "denied a state created right" when the trial court denied his counsel's request to access "prosecution witness employment and dis[ci]plinary records," and did not allow defense counsel to inform the jury that "the prosecution witness had been fired by [CVS] for violations of [CVS] policy in regards to detaining shoplifting suspects."
22. In violation of his due process rights, he was denied a hearing on his competence to stand trial "in the face of conflicting evidence to his sanity," and "despite psych reports prepared by the defense and jail medical/psych records" indicating he had been prescribed "psych" medications and was under the care of "psych doctors" while housed in jail, and he had "been placed for his safety in the psych suicide safety cell."
23. He was incompetent to stand trial "due to documented proof of [his] mental health issues."
Brady v. Maryland (1963) 373 U.S. 83.
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In support of his petition, Chandler attached copies of the following 11 documents marked as Exhibits A through K:
Exhibit A: CVS's "Operations Manual - Shoplifting: Apprehensions/Reporting"
Exhibit B: "San Diego Regional Officer's Report Narrative" regarding the May 18 incident at the CVS store
Exhibit C: A photograph purporting to be a picture of Chandler taken by a security camera at the CVS store during the May 18 incident
Exhibit D: A one-page printout purporting to be a CVS employment record showing Beeler's employment was terminated due to "Gross Violation"
Exhibit E: Three one-page San Diego County Sheriff's Department Central Jail records of Chandler's housing location
Exhibit F: Two "Subpoena/Subpoena Duces Tecum" documents prepared by Chandler in propria persona
Exhibit G: A page of Chandler's handwritten instructions he claims he gave "to all 3 trial attorneys showing that they were aware of the store security video and were directed by the petitioner prior to its destruction to secure the video for the defense"
Exhibit H: Chandler's file-stamped handwritten motion for a continuance of the July 2010 preliminary hearing
Exhibit I: A four-page handwritten log prepared by Chandler purporting to show calls that he made "requesting that trial attorneys secure for the defense store security video of the [June 3] incident"
Exhibit J: Two letters from his appellate counsel concerning this habeas corpus petition, stating in the second letter, "An appellate attorney is not duty-bound to bring a writ of habeas corpus," citing In re Clark (1993) 5 Cal.4th 750, 783-784, footnote 20
Exhibit K: A San Diego Superior Court order filed on December 12, 2011, denying Chandler's habeas corpus petition in that court in
which he apparently alleged the same 23 grounds for habeas corpus relief that are alleged in the pending petition at issue here
C. Analysis
Having considered Chandler's habeas corpus petition, including exhibits A through K attached thereto, we conclude Chandler has failed to meet his heavy initial burden to plead sufficient grounds for relief. As noted, ante, "all presumptions favor the truth, accuracy, and fairness of [his] conviction and sentence." (People v. Duvall, supra, 9 Cal.4th at p. 474.) Many of Chandler's allegations are fatally conclusory, such as (1) the allegation in his second claim—a Brady violation claim that the alleged CVS security video of the June 3 incident "would have clearly shown [his] innocence"; (2) the allegation in his fourth claim that his conviction "resulted from an identification made during an unconstitutionally suggestive lineup" he claims occurred early in the preliminary hearing in this matter (we note the record establishes that identity was not raised as a defense during trial); (3) the allegation in his 11th claim (asserting ineffective assistance of counsel) that his trial counsel "so utterly failed to defend against the charges that the trial was the functional equivalent of a guilty plea, rendering counsel's representation presumptively inadequate"; and (4) the allegation in his 22nd claim that, in violation of his right to due process, he was "denied the right to a hearing on his competence to stand trial in the face of conflicting evidence to his sanity."
Many other allegations in Chandler's petition (discussed, ante) purport to collaterally attack the trial court's exclusion of evidence of Beeler's CVS employment records and CVS's policy manual on how employees should treat shoplifting suspects, but we have already rejected in his appeal Chandler's claim that the court prejudicially abused its discretion by excluding that evidence.
In sum, Chandler has failed to meet his burden of pleading sufficient grounds for habeas corpus relief. Accordingly, we deny the petition.
DISPOSITION
The judgment is affirmed; the petition for writ of habeas corpus is denied..
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.