Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD193068, Browder A. Willis, Judge.
HUFFMAN, J.
A jury convicted Gualalupe M. Edgar of burglary (Pen. Code, § 459) and grand theft (§ 487, subd. (a)). After denying Edgar's motion for new trial, the trial court suspended imposition of sentence and granted Edgar three years' formal probation subject to certain conditions, including 120 days in custody.
All statutory references are to the Penal Code unless otherwise specified.
The jury returned a not guilty verdict on an alternative charge of petty theft (§ 484).
Edgar appeals, contending the court prejudicially erred in not granting her motion for new trial on the grounds of ineffective assistance of counsel and in ruling pretrial that the prosecutor would be allowed to impeach her with her two misdemeanor convictions should she testify. We affirm.
FACTUAL BACKGROUND
Edgar does not challenge the sufficiency of the evidence to support her convictions, which arose from her arrest on August 13, 2005, after she was observed taking merchandise from the Nordstrom's Rack department store (Nordstrom's) in the Mission Valley shopping center in San Diego, California. At trial, three loss prevention agents for Nordstrom's (one a manager) and a San Diego police officer testified in the prosecution case.
Loss prevention agent David Diaz, who was monitoring the closed circuit television cameras (CC TV) at Nordstrom's on August 13, 2005, along with his manager Jesse Ochoa, testified that he became interested in Edgar when he saw her in the accessories department carrying a hat from that department with about 15 pieces of Nordstrom's jewelry inside it as well as carrying a large handbag. After Diaz noticed Edgar furtively look around as she selected jewelry pieces without checking the price tags and walk with them to the designer dress department, he left the surveillance room to follow her. Diaz saw Edgar next select a dress, place it over her hands and the hat containing the jewelry, and walk toward the women's restroom where she was approached by another loss prevention employee, Diane Denson. After a brief conversation with Denson, Edgar left the area without going into the restroom and returned to the women's department still carrying the store merchandise.
Diaz then observed Edgar sit on the floor next to a clothing rounder in the women's department, put the hat under the rounder and drape the designer dress over the rounder to conceal the hat. For the next 10 to 15 minutes, Diaz watched from about five feet away as Edgar took jewelry items from the hat beneath the clothing and placed them in her large handbag next to her. Afterwards, she got up, walked to the women's restroom with her handbag, and went inside. Before she came out, Diaz checked the rounder where Diaz had sat on the floor and retrieved the designer dress and the hat, which was now empty.
When Edgar came out of the restroom with her handbag, she proceeded to customer service where the store exits are located, passed all the registers and walked out of the store. Edgar, along with his manager Ochoa, followed her outside, contacted her and escorted her back inside to the loss prevention office where they talked with her in the presence of Denson and eventually searched her handbag. Inside the bag the loss prevention agents found and photographed all the accessories that Diaz had previously observed her take from the accessories department and place in her handbag, plus three items of clothing with the price tags still on them. However, because none of the accessories had price tags or sensors, the manager of the accessories department helped verify that the accessories were Nordstrom's property and their value. Diaz made a three-page list of all the Nordstrom's accessories that were found in Edgar's handbag, totaling about $1,700 in value, which was then turned over to the police.
Ochoa testified, confirming what Diaz had observed Edgar do in the accessories department, except saying that he saw her take approximately 25 pieces of jewelry. When Edgar left that department and Diaz went out on the floor to watch her, Ochoa continued to observe her movements on the CC TV. He saw her go through the lingerie department and select a black shirt from a rack without looking at the tag, which she then placed over the hat as she walked toward the "special occasion dresses area." When Edgar headed toward the restroom area, Ochoa alerted Denson to stand by the entrance so Edgar could not take the merchandise into the women's restroom. Ochoa then saw Denson talk to Edgar, who did not enter the restroom but rather carried the merchandise with her back into the women's department where she "situated herself between a pillar and a rounder or a merchandise display and . . . began to squat down."
Ochoa left the CC TV room to assist Diaz on the sales floor, spotting Edgar 20 seconds later as she squatted behind the merchandise on a rounder looking around at other customers. After a few seconds, Ochoa watched Edgar as she sat down on the floor and proceeded for the next five minutes to take all the accessories out of the hat and place them in her handbag. Edgar then got up, walked around, put the other items away, including the hat, and walked into the restroom where she stayed for about 30 minutes. During that time, Ochoa and Diaz kept in communication with Denson who had followed Edgar into the restroom. When Edgar came out of the restroom carrying her handbag, walked past the cash registers, and exited the store, Ochoa and Diaz approached her about five feet away from Nordstrom's doors.
Ochoa identified the various items of jewelry and clothing found in the subsequent search of Edgar's handbag from photographs that were entered into evidence. He also identified 12 pictures that had been taken of price tags recovered by Denson in the women's restroom that matched the various items. Ochoa explained the verification process to determine that the items found were sold at Nordstrom's and estimated their approximate overall value was $1,912.
Denson testified about Ochoa contacting her on the evening of August 13, 2005, to tell several women walking toward the women's restroom carrying merchandise that they could not enter with the items. She identified Edgar as one of those women whom she talked to that night. Edgar left the area with the hat she was carrying when Denson told her she could not take it into the restroom. About 10 to 15 minutes later, Edgar returned to the restroom area with only her handbag. On orders from Ochoa, Denson followed her inside the restroom, and when Edgar entered the second stall, Denson went into the first stall to keep watch on her.
After a few minutes, Denson heard the popping of tags and sensors coming from the second stall and at one point saw Edgar drop some things, a tag and sensor, on the floor and quickly pick them up. Denson continued to hear the sounds of tags and sensors being pulled or cut off merchandise and of paper crumbling for about 20 minutes. She then heard the toilet flush twice and Edgar leave the stall and restroom. Afterwards, Denson went into the second stall and found bundles of paper containing about 50 tags and four sensors in the stall's trash can. Denson gathered everything and took them to the loss prevention office where she waited for Ochoa and Diaz to return with Edgar, whom she pat searched while her handbag was searched.
Denson confirmed that three Nordstrom's clothing items (a pink jacket and two shirts) and a lot of jewelry, many tangled together, were found in Edgar's handbag. Denson said that 75 percent of the merchandise that was recovered from Edgar's purse was verified to be Nordstrom's property. The verification process took some time as the tags and sensors had been removed from the nearly 80 pieces of jewelry and the tags found in the restroom had been crumbled and stuck together. Denson also noted that a pair of wire cutters had been found in Edgar's purse.
On cross-examination, Denson denied there was a " jewelry return box" near the women's restroom for shoppers to put back unwanted accessories. She noted, however, that there were hanging hooks near the women's restroom for holding clothes and other items while women go into the restroom.
The San Diego police officer who responded to the store to take Edgar into custody testified consistently with the others regarding what items of merchandise were found in Edgar's purse. The officer also noted that wire cutters and a small pair of folding scissors were found in the hand bag.
DISCUSSION
I NEW TRIAL MOTION BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL
Before sentencing, Edgar's new counsel filed a motion for new trial alleging trial counsel was ineffective for failing to call critical defense witnesses who would have provided exculpatory evidence. Purportedly, the witnesses, members of Edgar's family, would have testified that Edgar had gone to a swap meet earlier on the day of the Nordstrom's burglary and theft and had purchased several items of "fancy plastic and crystal-looking jewelries of various colors and designs." The motion also claimed trial counsel had been ineffective for failing to present evidence of a jewelry return box near the restrooms at Nordstrom's. A letter from Edgar's sister-in-law, stating that Edgar had shown her some jewelry Edgar had bought at the swap meet that day, and a letter from Edgar, claiming that there was a jewelry return box at Nordstrom's and that her trial attorney had failed to interview or call her husband, sister-in-law and niece as witnesses in her defense, were filed in support of the motion and sentencing.
The prosecutor filed opposition to the motion, essentially arguing that Edgar had failed to make a prima facie showing that her trial counsel was ineffective and that counsel's tactical decisions not to call the family witnesses, who did not witness the events at Nordstrom's involving Edgar, or to further explore the existence of a jewelry return box, were not unreasonable in light of the circumstances where Edgar was observed taking jewelry, which was later found tagless in her purse and verified to be Nordstrom's property. The People planned to call former counsel as a witness at the hearing only after Edgar made a prima facie showing of ineffectiveness.
At the motion hearing, the court noted it had read the moving and responsive papers, and that after a brief chambers conference, it understood the parties would submit the matter after argument. Edgar's new counsel argued the first prong for finding ineffective counsel was met because Edgar's trial counsel had failed to properly investigate defenses for this case even after Edgar and her husband told him that they were available to testify that the jewelry items found in her purse had been purchased earlier that day at the swap meet. Counsel believed the second prong was also met because the family witnesses "could have provided a very viable alternative explanation as to what Ms. Edgar was arrested for in particular items of jewelry."
The prosecutor argued that even if the first prong were met, which she did not concede, Edgar could not show that there was "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." The prosecutor noted that the original trial counsel was "somewhere in the courthouse," had been subpoenaed for the hearing, and that it was her understanding he would say the case was not as the defense now represents. No evidence, however, was presented at the hearing.
After noting the applicable two-pronged standard under Strickland v. Washington (1984) 466 U.S. 668 (Strickland) for determining ineffective assistance of counsel, the trial judge stated:
"Taking the points of contention on their face that there were witnesses available, family members and friends who were with [Edgar] on the date in question and that they were not either interviewed or their statements were not investigated, and in light of the nature of the incident, a failure to investigate in that regard would meet the first prong. [¶] Therefore, under that particular standard, I do find that there is understanding that [trial counsel] challenges that and the People don't accept that. Your position is the true position; [trial counsel] would challenge that. Taking it on face value, I would find that [counsel's] behavior did fall below that standard to meet the Strickland standard, but that raises the second prong."
The court then noted that the second prong was a "little more problematic" and reviewed the evidence presented at trial regarding Edgar's shopping trip to Nordstrom's, where she was observed taking jewelry by several loss prevention officers, who then watched her approach and leave the restroom area where the purported jewelry return box was located, and who then saw her remove the items from the hat and place them in her purse before going back to the restroom, where she was heard cutting off tags and sensors before leaving the store with the items in her handbag, which were later confirmed to be Nordstrom's property. The trial judge ruled that "[b]ased on that testimony weighed against the proffered testimony that . . . jewelry items were purchased at the swap meet, I do not find that [Edgar has] shown that there's a reasonable probability that a more favorable outcome would be the result[.]" The court denied the new trial motion "based on the failure to meet the Strickland standard or second prong showing proof of resulting prejudice."
On appeal Edgar claims the trial court prejudicially erred by denying her motion for new trial on grounds of ineffective assistance of her original trial counsel. No abuse of discretion is shown.
Generally, a trial court's ruling on a motion for new trial " ' "rests so completely within [its] discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328.) This standard "asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (People v. Williams (1998) 17 Cal.4th 148, 162.) The burden is on the defendant to show that the trial court's decision was " 'irrational or arbitrary,' " or that it was not " 'grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
In addition to the statutory grounds (§ 1181), a new trial may be granted where the trial court finds that the defendant received ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) "To prevail on this ground, a defendant must show both that [her] counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant in the sense that it 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.]" (People v. Andrade (2000) 79 Cal.App.4th 651, 659-660.)
With regard to the first prong regarding counsel's performance, there is a "strong presumption" that defendant received reasonable professional assistance of counsel (Strickland, supra, 466 U.S. at p. 689), and a reviewing court will "defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation] . . . ." (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Further, "[i]f the record . . . fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must [generally] be rejected on appeal." (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Additionally, because a claim of ineffective assistance of counsel made in a new trial motion differs from one made for the first time on appeal, we usually defer to the trial court's initial determination as to whether trial counsel's tactical "acts or omissions were those of a reasonably competent attorney." (People v. Jones (1981) 123 Cal.App.3d 83, 89.) This is because the trial court is generally in the best position to make such determination based on having observed counsel's performance throughout the proceedings. (Ibid.)
As to the second prong, the defendant must show a "reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) Moreover, a reviewing court need not reach the question of deficient performance where defendant fails to demonstrate prejudice. (Strickland, supra, 466 U.S. at p. 697.)
Here, the record reflects that the trial court accepted as true the first prong of Strickland, that counsel's representation was deficient, based solely on Edgar's allegations in her new trial motion that her trial counsel had failed to investigate and present evidence from three family witnesses, who would purportedly testify that at the time she entered Nordstrom's she had some jewelry with her she had bought earlier that day at a swap meet, and that counsel also had failed to introduce evidence concerning the existence of a jewelry return box in Nordstrom's. No evidence in the record, however, supports this determination.
Other than letters from Edgar and her sister-in-law, neither of which were properly executed declarations, no evidence was presented, only argument of counsel as to Edgar's trial counsel's purported failures to call certain witnesses and to more fully explain the jewelry return box. Neither Edgar nor her trial counsel testified or submitted affidavits for the new trial motion. Although the prosecutor represented that Edgar's trial counsel would deny Edgar's allegations, counsel was not asked to provide an explanation to the court for any perceived deficient performance. Under these circumstances, we decline to defer to the trial court's finding on the first prong which is not supported by any competent evidence.
Rather, because the record reflects that there may have been sound tactical reasons for trial counsel not to present evidence from three witnesses whose bias could be challenged due to their relationships with Edgar on a purported fact that occurred before she entered Nordstrom's and for trial counsel not to explore further the jewelry return box, which was not observed to have been used by Edgar, we cannot find that Edgar had made a prima facie showing on the face of the record that her counsel's performance was deficient. (Strickland, supra, 466 U.S. at pp. 687-688.)
Although we believe the trial court's analysis regarding the ineffective assistance of counsel claim for new trial may have been incorrect, we uphold its exercise of discretion in denying the motion because the result it reached was proper in light of Edgar's failure to show by competent evidence in the record that her trial counsel was deficient in representing her. (See People v. Zapien (1993) 4 Cal.4th 929, 979 [a reviewing court will affirm a ruling or judgment if the result reached below was correct on any theory, regardless of whether the trial court's reasons were correct or not].)
Further, as the trial court found after reviewing the strong evidence in support of her convictions as compared to the proposed evidence that she alleged should have been presented to the jury, Edgar also could not demonstrate that there was a reasonable probability the jury would have returned a more favorable verdict. Even accepting as true that Edgar had swap-meet-bought jewelry in her possession when she entered Nordstrom's, or that she put some jewelry in a return box near the restroom in the store, there was overwhelming evidence that she also had in her possession at the time she left the store between $1,700 to $1,900 worth of Nordstrom's jewelry and three items of clothing. Thus, on the facts of this case, we cannot say that the trial court's decision denying the new trial motion exceeded the bounds of reason under the applicable law and relevant facts.
II REGARDING IMPEACHMENT WITH MISDEMEANOR PRIOR CONVICTIONS
In limine, the prosecutor brought a motion to impeach Edgar with her prior misdemeanor convictions of petty theft with a prior (§§ 484/488) and child abuse (§ 273a, subd. (b)) should she testify at trial. At the hearing on the matter, when the trial court asked whether there were any comments, defense counsel responded, "No, we have no quarrel." The court granted the motion, stating the prosecutor would be able to impeach Edgar with her prior convictions. Edgar did not testify.
Edgar now claims the trial court erred by ruling she could be impeached as a witness by her prior misdemeanor convictions, one of which does not involve moral turpitude. Alternatively, she claims her trial counsel was ineffective for failing to object to the ruling. We reject Edgar's basic claim regarding evidentiary error because she did not object below or preserve the point by testifying. (People v. Seijas (2005) 36 Cal.4th 291, 301 (Seijas); People v. Rowland (1992) 4 Cal.4th 238, 258 (Rowland), citing People v. Collins (1986) 42 Cal.3d 378, 384 (Collins).) We further reject her alternative claim of ineffective assistance of trial counsel as she cannot show prejudice on this record.
Generally, questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. (Seijas, supra, 36 Cal.4th at p. 301.) In addition, in Collins, supra, 42 Cal.3d 378, our Supreme Court established the rule that the defendant must testify to preserve a claim that the trial court erred in ruling on an in limine motion to impeach the defendant with a prior conviction. (Id. at pp. 383-389; People v. Rodrigues (1994) 8 Cal.4th 1060, 1174 (Rodrigues); Rowland, supra, 4 Cal.4th at p. 258.) The reasons for this requirement are threefold. "First, without the precise factual context that such testimony would have provided, the appellate court cannot review the balance required to be drawn between the probative value and prejudicial effect of the prior conviction. [Citation.] Second, the trial court's in limine ruling is necessarily tentative because the court retains discretion to make a different ruling as the evidence unfolds. Also, when the defendant does not testify, there is no way to know whether the prosecutor ultimately would have used the prior conviction to impeach: if the prosecution's case is strong and the defendant is impeachable by other means, the prosecutor might elect not to use a questionable prior conviction. Thus, any possible harm stemming from the in limine ruling is ' "wholly speculative." ' [Citation.] Third, 'when the trial court errs in ruling the conviction admissible the reviewing court cannot intelligently weigh the prejudicial effect of that error if the defendant did not testify.' [Citation.] If such rulings were reviewable on appeal, ' "almost any error would result in the windfall of automatic reversal; the appellate court could not logically term 'harmless' an error that presumptively kept the defendant from testifying." ' [Citations.]" (Rodrigues, supra, 8 Cal.4th at pp. 1174-1175.)
Here, not only did Edgar not object to the admissibility of her misdemeanor prior convictions for impeachment purposes, she did not testify at trial. Under these circumstances, she has forfeited the right to have the issue heard on appeal.
As to her alternative ground that her counsel was ineffective for failing to object to the admissibility of her prior misdemeanor convictions because her 2004 conviction for child abuse was not a crime of moral turpitude for purposes of impeachment and she could only properly be impeached with her underlying misdemeanor conduct for the 1990 petty theft conviction, Edgar cannot prevail in this regard. Even assuming counsel's decisions not to object to the admission of the misdemeanor priors or to have Edgar testify were deemed unreasonable, "[b]ecause the appellate record does not contain [Edgar's testimony], it provides no basis for assessing whether counsel's performance was . . . prejudicial." (See Rodrigues, supra, 8 Cal.4th at p. 1177, fn. 81.)
In sum, because Edgar did not testify or object to the admission of her prior misdemeanor convictions for impeachment purposes should she testify, the record is too vague and indefinite to provide a basis for assessing her claim of prejudicial error either due to the court's ruling or to counsel's purported omissions. We therefore reject her claims on appeal. (See Rodrigues, supra, 8 Cal.4th at p. 1177 & fn. 81.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.