Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. F06902643, Gregory T. Fain, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Levy, J., and Kane, J.
OPINION
PROCEEDINGS
Appellant, Michael Emiliano Lopez, was charged in a second amended information filed January 2, 2007, with petty theft with a prior conviction (Pen. Code, §§ 666 & 484, subd. (a), count one) and second degree commercial burglary (Pen. Code, §§ 459 & 460, subd. (b), count two). This information further alleged two prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and five prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise specified, all further statutory references are to the Penal Code.
One prior prison term enhancement was found to overlap with another and the prosecutor removed it from the second amended information.
At the commencement of trial, appellant admitted a conviction for a prior theft offense. On January 10, 2007, a jury convicted appellant of both counts. Appellant waived his right for a trial on the remaining allegations and admitted he had two prior serious felony convictions as well as the four prior prison term enhancements.
Exercising its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the trial court struck one of the appellant’s prior serious felony convictions. The court sentenced appellant to the upper term of three years on count one, doubling the term to six years pursuant to the three strikes law. The court stayed sentence on count two. The court imposed a consecutive term of one year for each prior prison term. Appellant’s total prison sentence is 10 years. The court granted applicable custody credits and imposed a restitution fine.
On appeal, appellant contends the trial court violated his due process right to a fair trial by excluding evidence that a prosecution witness had himself been arrested for petty theft. Appellant also contends the trial court violated his right to a jury trial by sentencing him to the upper term on count one in violation of Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham).
FACTS
Prosecution
On April 12, 2006 at 1:00 p.m., Matthew Guardia and Pete Sanchez were working as loss prevention investigators at Home Depot on Kings Canyon in Fresno. Guardia saw appellant enter the contractor’s entrance of the store pushing an empty cart. Appellant went immediately to the electrical department. Sanchez testified that appellant entered the store through the lumber entrance of the store, a loading zone used by contractors. Appellant caught Sanchez’s eye because he was “moving really rapidly,” on his way to the electrical aisle.
Both Guardia and Sanchez followed appellant constantly watching him while he was on the electrical aisle. Guardia explained that appellant grabbed two handfuls of 15 amp connectors. Appellant placed what turned out to be nine connectors into a Home Depot bag he carried in his pants. Sanchez saw appellant select nine 15 amp connectors and place them into a Home Depot bag he pulled out of his pocket.
Guardia explained that appellant selected a power strip. Appellant left the electrical department and walked with his cart to the returns counter. Appellant presented the nine connectors to the cashier as a return. The cashier processed the return and issued appellant a store credit. Sanchez also saw appellant proceed to a returns register and tell the cashier he wanted to return the connectors. Sanchez saw appellant get a surge protector from the same aisle. The connectors were priced at $ 8.96 each. Sanchez kept 100 percent surveillance on appellant. The cashier completed the transaction.
Sanchez testified that appellant received a gift card and told the cashier he wanted to pay for the surge protector. The total refund was $80.64 and with taxes included, the total store credit was $87.07. Appellant exited the store.
Guardia explained that appellant signed a return slip receipt showing he received a store credit. Appellant did not have a receipt for the connectors. After making the return and buying the surge protector, Guardia saw appellant exit the store. Guardia did not know appellant. Guardia and Sanchez identified themselves to appellant as Home Depot security. Sanchez also testified that he and Guardia exited the store, approached appellant, and identified themselves as store security.
Guardia told appellant he had seen appellant enter the store with nothing in his possession and return items he had taken off the shelf. When Guardia asked appellant why he did this, appellant replied he needed the money. Appellant agreed to accompany Guardia back to his office. For safety, Guardia placed appellant in handcuffs. Sanchez also heard appellant say he took the items because he needed the money. Before this incident, Sanchez had never seen appellant and did not know appellant.
On cross-examination, Sanchez acknowledged appellant may have told them something like he did not “need the M-F money.” Appellant was ranting, raving, and cussing.
Crystal Sherman was working as a returns cashier at Home Depot. Sherman said that most people with returns usually entered the store through the front entrance. Sherman processed appellant’s return of the nine connectors. After appellant received his “refund” from his return of the connectors, he used part of his store credit from the gift card he was given to purchase a power strip. Sherman explained that a customer coming from within the store to make a return is a “red flag.” Fresno Police Officer Ramiro Cruz spoke with Sanchez and Guardia and arrested appellant.
Defense
Gerardo Contreras, the assistant manager of the Home Depot on Kings Canyon, performed a search pursuant to a subpoena and confirmed there were no video recordings of appellant in the store on April 12, 2006.
Santo Gonzales is married to appellant’s sister. Appellant was assisting Gonzales with construction work in April 2006. According to Gonzales, appellant purchased electrical connectors for him but appellant bought the “wrong ones.” Gonzales needed the connectors exchanged. Gonzales left the wrong connectors with appellant’s mother. Gonzales could not remember how many connectors there were, but he did not have a receipt for them. Gonzales asked appellant to exchange the connectors for right ones.
Yvonne Reynolds, appellant’s mother, testified that early in the morning on the day appellant was arrested, Gonzales had given her a bag for appellant, who was asleep. The bag contained yellow electrical plugs. When appellant left later that morning on his bicycle, he was carrying the plastic bag with the yellow plugs. On April 12, 2006, David Noble, one of appellant’s neighbors, spoke to appellant, who told Noble he had something to return that day. Noble saw appellant retrieve a plastic bag from inside his mother’s home, get on his bicycle and leave.
Appellant testified that a few days before he was arrested, he tried to return the connectors and obtain replacement connectors that could handle the amount of cable needed to run electricity into his sister’s house. At that time, appellant brought in the cable with the connectors. A Home Depot employee advised appellant the connectors were too small for the size of cable. The employee could not locate connectors that were large enough. Appellant did not return the connectors that day.
Appellant visited a Home Depot on Blackstone to exchange the connectors, but that store did not have the connectors or plugs that appellant needed. Eventually, appellant returned the connectors to the Home Depot on Shaw. After this return, appellant received a store credit card, which he used to purchase some ducts. Appellant gave the remaining store credit card to his brother-in-law’s brother, Martin.
On April 12, 2006, appellant rode his bicycle to Home Depot to purchase some wall outlets and a curtain rod. Appellant explained he needed the outlets with four plugs and a reset button. Gonzales gave him directions as to what type to buy. Gonzales also asked appellant to return some connectors. Early that morning, Gonzales brought a bag to appellant’s mother’s home with the items to be returned to Home Depot. Appellant saw Noble later that morning and talked to him for 15 or 20 minutes. Appellant rode his bicycle to Home Depot with the bag his brother-in-law brought.
Upon arriving at Home Depot, appellant first looked for a curtain rod for his mother, but could not find the right size. Appellant walked over to the electrical aisle to look for wall outlets. Appellant walked over two aisles and grabbed a surge protector. Appellant proceeded to the returns counter. After making the return, appellant purchased the surge protector. As he was leaving the store, two men approached him and accused him of stealing. According to appellant, Sanchez told appellant that he knew what he did was wrong. Appellant asked Sanchez what he was talking about. Sanchez told appellant they had him “on camera stealing.”
Appellant protested the allegation. The men informed him that if he came back to their office, they would show him the videotape of the incident. Appellant consented to being handcuffed and going to the security office. Appellant explained that he went with the security guards because he knew he did not steal anything and wanted to watch the videotape of the incident to prove his innocence. Appellant was taken to the loss prevention room in the back of the store. Appellant denied telling the security guards that he took property because he needed the money.
Appellant explained that Sanchez wrote a report with help from Guardia and Officer Cruz. Cruz told Sanchez appellant could not be prosecuted the way Sanchez was writing the report. Cruz told Sanchez there was “nothing here to prosecute appellant with.” Guardia got on the computer and rewrote the report. There were a couple of places where Cruz told Sanchez to change his report. Cruz told Sanchez to change a comment that appellant was “messing” with some items as well as to state that appellant said he needed the money.
Appellant told the officer and security guards that he did not need any “fucking money.” Appellant testified that he never told Sanchez or anyone else that he took items from Home Depot because he needed the money. Appellant denied making any admission. Appellant admitted he was convicted of robbery in 1988 and in 1992.
IMPEACHMENT WITH MISDEMEANOR ARREST
Appellant contends he was denied his constitutional rights to confront a witness and to present a defense under the Sixth Amendment because the trial court denied his motion to cross-examine Sanchez concerning an alleged petty theft in 2002.
Hearing
Defense counsel sought to impeach Sanchez with an arrest for misdemeanor petty theft in 2002. According to the prosecutor, Sanchez was not convicted of the offense, but was diverted. According to defense counsel, there was a statement in the police report in which Sanchez admitted the allegation. Defense counsel argued that being able to impeach Sanchez with his admission to the petty theft was crucial to challenging the credibility of Sanchez’s testimony. Defense counsel further argued Sanchez was “the only witness that saw anything in this case” that would be used by the prosecution to “contradict my three witnesses.”
The trial court found that Evidence Code section 352 empowered it to prevent denigrating and nitpicking over collateral issues. The court was concerned that the admission of this evidence could cause an undue consumption of time, confusion, or prejudice that would outweigh its probative value. The court noted the allegation against Sanchez was an unadjudicated misdemeanor. The court expressed concern that trying to impeach Sanchez would turn into a trial within a trial.
Earlier, the trial court had explained that it saw a difference between a case where there was a conviction and one where there was not. Where there was no conviction, an attempt to impeach someone for alleged prior dishonest conduct was more likely to lead to a trial within a trial or a confusing mini-trial with a real chance of undue consumption of time.
Defense counsel argued that his question to Sanchez would be a single yes or no question concerning whether he stole something from a book store in 2002. The court relied on case law, especially the Supreme Court decision in People v. Chatman (2006) 38 Cal.4th 344, 373 (Chatman). The court explained to counsel that depending on Sanchez’s answer to the question, the whole thing could devolve into a separate trial. The court denied appellant’s motion.
Analysis
Appellant argues at length that his inability to cross-examine Sanchez concerning the details of an arrest in 2002 for petty theft rises to the level of constitutional violation of his rights to confront a witness and to present a defense. We disagree.
In People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler), the California Supreme Court held that under Proposition 8, the California Constitution had been amended to abrogate the earlier rule that a felony conviction was the only form of criminal conduct which could be used to impeach a witness’s credibility. The Wheeler court found that in proper cases, non felony conduct involving moral turpitude could be admissible to impeach a witness in a criminal case. (Id. at p. 295.) Wheeler noted that the trial court, in exercising its discretion, must consider issues of proof, unfair surprise, undue use of time, confusion, or prejudice that outweighs the probative value of the evidence. (Id. at pp. 296-297.) Wheeler further found that the fact of a prior conviction was not admissible under any exception to the hearsay rule. The Legislature subsequently enacted Evidence Code section 452.5, subdivision (b) which permits a court to take judicial notice of court and other official documents showing that a witness has a prior criminal conviction. The fact of the conviction itself is no longer barred by the hearsay rule or prior limitations on a trial court’s ability to take judicial notice of other judicial proceedings. (See People v. Wesson (2006) 138 Cal.App.4th 959. 967-969; People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1462.)
In Chatman, our Supreme Court noted that a criminal defendant states a confrontation clause violation by showing he or she was prohibited from engaging in otherwise appropriate cross-examination designed to show a witness’s bias. (Chatman, supra, 38 Cal.4th at p. 372.) The Chatman court noted, however, that not all restrictions on a defendant's method of cross-examination rise to the level of a constitutional violation. Trial courts still retain wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing, or of marginal relevance. (Ibid.)
The trial court stated on the record that it had read Chatman and was thus well aware of appellant’s constitutional argument. The trial court, however, was concerned that if Sanchez denied the arrest, or the allegations resulting from the arrest, there was the very real possibility that a full mini-trial would have resulted from this line of questioning. Prolonged proceedings on this issue had the potential to confuse the jury on a collateral issue.
The trial court was also concerned that there was never an adjudication of any of the allegations in Sanchez’s case. The probative value of appellant's attempt to try to impeach Sanchez was, under these circumstances, outweighed by prejudice and was of marginal value.
When a diversion is instituted, criminal proceedings are suspended and re instituted upon the failure of the accused to comply with the terms of diversion. (§§ 1000 through 1000.4; People v. Garrett (1987) 192 Cal.App.3d 41, 44-45.) In exchange for a defendant admitting the allegation, criminal proceedings are suspended and upon successful completion of diversion, the entire case is dismissed to spare the defendant of the stigma of a criminal conviction. (People v. Orihuela (2004) 122 Cal.App.4th 70, 72-73; People v. Ormiston (2003) 105 Cal.App.4th 676, 690.)
Furthermore, Sanchez’s testimony was substantially identical to the testimony of security guard Guardia. Store clerk Sherman also noted that appellant’s return raised “red flags” because he came from within the store to make the return. In his reply brief, appellant argues that trial counsel informed the court that Sanchez was the only witness who contradicted the defense witnesses. Neither trial counsel nor appellant counsel specify how Sanchez’s testimony differed substantially in detail from Guardia’s testimony. From our reading of the record, it appears that the primary defense witness Sanchez contradicted was the defendant himself. Sanchez’s testimony, however, did not contradict appellant’s testimony in any more substantial degree than did Guardia’s testimony with regard to how appellant made the “return” of merchandise and then use the store credit to obtain the surge protector.
At page 21 of his opening brief, appellant attempts to cast doubt on whether Guardia’s testimony was identical to Sanchez’s testimony by pointing out that Sanchez first saw Guardia after appellant left the merchandise area of the store. Officer Cruz did not take a statement from Guardia. Appellant tries to draw negative inferences from these facts but on appeal we draw only those inferences that support the findings of the trier of fact and resolve any conflicts in favor of the judgment. (People v. Perez (1992) 2 Cal.4th 1117, 1124; People v. Massie (2006) 142 Cal.App.4th 365, 373-374.)
Both security guards watched appellant place electrical connectors into a bag, select a surge protector from the same electrical aisle, proceed to a return counter, receive a card for store credit, obtain a surge protector with that credit, and walk out of the store. Both guards heard appellant say that he did so because he needed the money. Sanchez’s testimony was corroborative and repetitive of Guardia’s testimony. We therefore reject appellant’s attempt to distinguish Chatman factually from the instant action.
Where a medical expert made a diagnosis of the defendant’s criminal behavior, and the defendant was not permitted to cross-examine the expert on alleged false Medical claims, the error was found not to affect the federal constitutional right to confront a witness. (People v. Sapp (2003) 31 Cal.4th 240, 289-290.) In addition, no prejudice could be shown where the expert’s testimony was cumulative of the testimony of two other experts. (Id. at p. 291.) In another case where inadmissible hearsay evidence from a probation report was introduced, our high court held that any error was not prejudicial where the inadmissible evidence duplicated other admissible evidence. (People v. Reed (1996) 13 Cal.4th 217, 230-231.)
We find the trial court had sound reasons to deny appellant’s request to impeach a witness to prevent a mini-trial on a collateral point. We also find, under the facts of this case, that appellant’s assertions do not rise to the level of a constitutional violation of his rights to present a defense or to confront a witness. We hold that given the fact that Sanchez’s testimony was largely duplicative of Guardia’s testimony, and was further corroborated by Sherman’s testimony, that any error in failing to permit impeachment of Sanchez with an unadjudicated misdemeanor allegation was harmless.
CUNNINGHAM ERROR
Appellant contends the trial court erred when it imposed the upper term on count one in violation of Cunningham. In sentencing appellant, however, the trial court expressly referred to the Cunningham decision and found appellant had served four prior prison terms within the meaning of section 667.5, subdivision (b). The court expressly found that appellant had an extensive criminal history that would justify an upper term sentence that would not run afoul of Cunningham.
According to the probation officer’s report, appellant had convictions in 1986 for burglary and escape. Appellant violated parole in 1987. In 1988, appellant was convicted of two counts of possession of burglary tools, being under the influence of a controlled substance, and grand theft. He was also in violation of parole. Appellant was convicted in 1989 and 1990 for being under the influence of a controlled substance and was in violation of parole both years. In 1990, appellant was committed to the California Department of Corrections (CDC) for being in violation of parole. In 1991, appellant was convicted of being under the influence of a controlled substance, battery of a peace officer, and resisting arrest. Appellant was again committed to CDC for violation of parole. In 1992, appellant was convicted of robbery, assault with a deadly weapon, and battery causing serious bodily injury.
Appellant’s upper term sentence is justified by his extensive criminal history, a sentencing factor for which a jury finding is not required. (People v. Black (2007) 41 Cal.4th 799, 812-813, 818-820 (Black II.) Appellant has failed to demonstrate that the trial court misunderstood or abused its sentencing discretion. We therefore reject appellant’s Cunningham argument.
In his reply brief, appellant acknowledges that we are bound to our high court’s decision in Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
Later during the trial, defense counsel renewed his motion to impeach Sanchez with the alleged theft in 2002. The court denied the motion.