Opinion
G043284 Super. Ct. No. 09HF07134
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. LAURINCE SIMPSON, Defendant and Appellant.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication i ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
Laurince Simpson appeals from his conviction for petty theft with two prior petty theft convictions. Simpson contends the trial court erred by denying his motion for a new trial on the basis of newly discovered evidence. In the alternative, Simpson argues the failure of his attorney to discover the evidence sooner amounts to ineffective assistance of counsel. Finally, he asserts the imposition of one of the eight one-year sentence enhancements violates equal protection. Simpson's claims have no merit, and we affirm the judgment.
FACTS & PROCEDURE
Simpson entered a Sephora store in Costa Mesa. He wore headphones on and off during his time in the store. Sephora loss prevention employee David Vanoni watched Simpson on a closed-circuit system. Vanoni saw Simpson speak with a sales associate and select two different jars of face cream from the store shelves. Simpson placed the face cream jars under a mall directory in his hand, walked to the checkout register, and placed both selections and the directory on the counter. He placed the directory on top of one of the jars of face cream. To conceal the other, he placed a stuffed animal he had brought with him into the store on top of it. Vanoni suspected Simpson was shoplifting.
Simpson also selected a variety of other products and took them to the register in a shopping basket. Sephora employee Stephanie Perez assisted Simpson with his transaction. Vanoni was communicating with Perez through an earpiece she wore. He told Perez he suspected Simpson might be shoplifting and instructed her to delay the transaction to give the police time to arrive. Perez told Simpson the register was down and she would have to wait until the register came back online to continue.
Video recorded by the store security cameras showed Perez preparing for the transaction by opening one of the face cream boxes. She also rejected Simpson's offer of his debit card. Vanoni testified these actions were consistent with the processes used when a customer returns a product. Merchandise boxes are opened only when customers are returning merchandise and never during a transaction for purchase. In addition, he stated debit cards cannot be credited for merchandise returns when a receipt is not provided. In such cases, store credit is given in the form of a gift card.
Sales manager Gladys Balboa soon joined Perez at the register and took over the transaction. Balboa was aware of Vanoni's suspicions and also feigned problems with the register. While waiting, Simpson pulled a laptop computer out of his bag and turned it on. Wearing earphones, Simpson watched and danced along to a music video. Balboa engaged Simpson in "friendly conversation," and Simpson turned the laptop toward Balboa to show her what he was watching. Balboa could not hear anything emanating from Simpson's earphones.
According to Balboa, Simpson asked to return the two jars of face cream in exchange for a gift card and said he wished to purchase his remaining selections with that gift card. The recorded security camera footage shows Balboa first holding up both jars of face cream as she addresses Simpson then later holding up a jar of face cream and a gift card as she speaks with him. Balboa explained each of these interactions as her attempts to confirm Simpson's intention to return the jars of face cream in exchange for a gift card. Each time, Simpson confirmed his intention by nodding or responding affirmatively.
Balboa processed both the returns and the new purchases in a single transaction and asked Simpson to acknowledge the transaction by pressing a "Yes" key on a key pad. She placed Simpson's purchases together with the gift card in a shopping bag. Simpson looked inside the bag for the gift card, and Balboa pulled the gift card back out of the bag "to let [Simpson] know visually" it was in there. She verbally confirmed with Simpson the receipt and the gift card with an $87 balance was in the bag, and Simpson nodded. Simpson left the store and was arrested.
An information charged Simpson with one count of petty theft with a prior (Pen. Code, §§ 484, subd. (a), 488, 666). Before trial, Simpson admitted two prior petty theft convictions, and a jury found him guilty of petty theft. In a bifurcated trial, the court found true allegations Simpson had eight prior felony convictions within the meaning of section 667.5, subdivision (b). The court sentenced Simpson to the upper term of three years for petty theft with a prior, commenting Simpson was a career criminal with an extensive record of having "commit[ed] identical crimes to the crime [he] committed in this case." The court further imposed consecutive one-year terms for each of the eight prior felony convictions, for a total term of 11 years.
All further statutory references are to the Penal Code.
DISCUSSION
1. Motion for New Trial
Simpson contends the trial court erred by denying his motion for a new trial. Simpson claims that although his defense counsel used reasonable diligence, she nonetheless had been unable to obtain access to the headphones Simpson wore in the Sephora store. Had the headphones been available at trial, Simpson argues they could have been used to impeach Balboa's testimony. We disagree.
A. Background
Prior to trial, defense counsel, Public Defender Christine Johnson, asked her investigator, Maurice Dollison, to review the evidence in Simpson's case. Dollison left a message at the police department requesting an evidence viewing but never received a return call. Therefore, the headphones themselves were not available to the defense during trial.
At trial, the prosecution called Balboa to explain the interactions she had with Simpson at the register because the security camera video did not include audio. During cross-examination, defense counsel twice addressed the issue of the impact of Simpson's headphones on his ability to understand the transaction as it was taking place. The first colloquy on this topic dealt with the volume of the music:
"[Johnson]: Okay. Now, when you came out to the counter, you noticed . . . Simpson was wearing headphones at that time also, correct?
"[Balboa]: Yes.
"[Johnson]: And he was kind of singing along and dancing to whatever he was listening to, correct?
"[Balboa]: Not singing. Dancing.
"[Johnson]: Okay. And it was -- the volume was up to a point that you could kind of hear there was music playing, correct?
"[Balboa]: I saw the music video playing from his laptop when I asked him to turn it around.
"[Johnson]: Okay. Did you yourself ever hear the music?
"[Balboa]: No."
The second colloquy returned to the issue of volume:
"[Johnson]: Now, despite the fact that . . . Simpson had his headphones on, you believed that he was answering your questions appropriately, correct?
"[Balboa]: Correct.
"[Johnson]: You never asked him to remove the headphones, did you?
"[Balboa]: At one point I believe that he remove[d] them himself.
"[Johnson]: But did you yourself ever say, hey, can you take those off?
"[Balboa]: It wasn't loud.
"[Johnson]: To you it wasn't loud, correct?
"[Balboa]: [I c]ouldn't hear anything coming out of them.
"[Johnson]: You don't know what type of headphones they were though, correct?
"[Balboa]: I mean, they were plugged into the laptop, if that's what you're inquiring about.
"[Johnson]: I mean like the specific brand. You don't know what brand of earphones they were?
"[Balboa]: No, I don't know the brand.
"[Johnson]: So you don't know whether those ear phones have noise cancelling systems so the people around you can't hear what's going on, correct?
"[Balboa]: They don't have that upgrade on there.
"[Johnson]: So you do know what the ear phones were?
"[Balboa]: They were very inexpensive ear phones. I know which ones you're referring to, and they are not those headphones."
After closing arguments, Johnson contacted Dollison and learned he had not been able to test Simpson's headphones. A few days later, Johnson and Dollison examined the headphones. The headphones were made by Bang-Olufsen and "appear[ed] to be a pair of high end earphones" which could cost as much as $160. Without changing the volume, Johnson and Dollison took turns wearing the headphones with the music playing and attempted to hear one another speak. While Dollison wore the headphones, he found it difficult to hear Johnson speak "in her regular pitch speaking voice," but Johnson found it "very easy" to hear the music playing. When Johnson donned the headphones, she claimed to be able to hear Dollison's voice "pretty well" and "make out what [Dollison] was saying . . . ," and Dollison was also able to hear the music playing "very easily."
Dollison's declaration also reported the headphones were connected to the walkman through a splitter attachment, which allowed more than one set of headphones to be plugged into the walkman at the same time. The splitter also compromised the integrity of the sound flowing to the headphones; the volume from the left side of the headphones would fade in and out unless Dollison "physically held the [headphones] jack plugged into the . . . splitter attachment."
Simpson filed a motion for a new trial on the grounds the headphones were newly discovered evidence which "demonstrate[d] that one of the prosecution's key witnesses testified dishonestly under oath." Simpson argued "[h]ad the defense had the opportunity to present evidence which would have impeached the witness with this critical evidence a different result would be probable."
The trial court denied the motion, saying, "the defendant's assertion that this is a matter of critical importance requiring the court to give him a new trial flies on a jet plane in the face of testimony by that witness and in the face of videotape which supported the testimony of that witness that she engaged in conversation with the defendant concerning what he was attempting to do, that he knew and understood what she was saying and responded to her." The court also explicitly found that "even if [the defense attorney] had the headphones here and even if the witness acknowledged some mistake about what kind of headphones they were, there is no remote possibility of a different result in this case. The evidence against this defendant was overwhelming. What wasn't testified to as to his words appeared clearly on a videotape concerning his actions. He was observed not only by the witness who identified the headphones as inexpensive but by other witnesses who supported the allegation that the people made that the defendant walked into the store and took some items and attempted to return those items and get cash or other items and did in fact commit a petty theft with allegations of prior conviction for similar crimes."
B. Analysis
"The elements of theft by larceny are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. [Citations.]" (People v. Davis (1998) 19 Cal.4th 301, 305.) Simpson contends the absence of the headphones compromised his defense as to his intent. He asserts the loud music he played on his headphones prevented him from understanding the nature of the transaction Balboa processed, and, had he had the opportunity to impeach Balboa's testimony that the headphones were "inexpensive" and did not have any noise cancellation capability, a different result in his case would have been probable. Therefore, claims Simpson, the trial court erred by not granting a new trial on the basis of the newly discovered headphone evidence. We disagree.
A trial court may grant a new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." (§ 1181, subd. 8.) However, "'[t]o grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial.' [Citation.] '[T]he trial court has broad discretion in ruling on a new trial motion . . . ,' and its 'ruling will be disturbed only for clear abuse of that discretion.' [Citation.] In addition, '[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.' [Citation.]" (People v. Verdugo (2010) 50 Cal.4th 263, 308.)
The trial court did not abuse its discretion by concluding the newly discovered headphones evidence would not make a different result probable on retrial. The newly discovered evidence itself did not strongly support Simpson's claim he could not hear Balboa confirming the transaction as an exchange. Dollison's own declaration stated Johnson could hear Dollison's voice "pretty well" while Johnson wore the headphones, which suggests it was possible for Simpson to both listen to music and hear what Balboa said. The fading in and out of sound in the left headphone further undermines Simpson's contention he could not hear Balboa. Furthermore, Balboa testified she could hear no music coming from the headphones when Simpson was wearing them, yet Dollison could "very easily" hear music when Johnson was wearing the headphones, suggesting that if Simpson was listening to music, it was not very loud.
There is no evidence Johnson and Dollison's examination found any noise-cancelling technology. And although the headphones were arguably not "inexpensive," as Balboa believed, the value of this revelation in impeaching her testimony was nominal. We find it unlikely the jury would disregard the entirety of Balboa's testimony on the grounds she was mistaken about the price of the headphones Simpson wore, especially since the video recording showed Simpson and Balboa conversing with one another.
Even assuming arguendo the jury would have disregarded the whole of Balboa's testimony on the basis of her mistaken characterization of the headphones, we do not find it probable it would have come to a different conclusion. Both Vanoni's testimony and the video recording provided evidence Simpson took the jars of face cream from the shelves, concealed them both as he walked around the store and when he placed them on the counter, did not enter a pin number on the keypad to authorize a particular dollar amount for sale, checked his purchases before he left the store, and saw the gift card included with his items. It is not probable the evidence related to the headphones would have led to a different result on retrial.
2. Ineffective Assistance of Counsel
Simpson argues in the alternative he was denied effective assistance of counsel by Johnson's failure to obtain the headphone evidence before trial. He further claims it is reasonably probable that, absent counsel's deficiencies, a more favorable result would have been obtained. We disagree.
"Both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee a criminal defendant effective assistance of counsel. [Citations.] The right of a criminal defendant to counsel 'entitles the defendant not to some bare assistance but rather to effective assistance.' [Citation.] 'Specifically, he is entitled to the reasonably competent assistance of an attorney acting as his diligent and conscientious advocate. [Citation.] This means that before counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation.' [Citations.]" (In re Gay (1998) 19 Cal.4th 771, 789-790.)
"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." (Strickland v. Washington (1984) 466 U.S. 668, 687.) However, "there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Id. at p. 697.)
As discussed above, the unavailability of the headphones during the trial did not prejudice Simpson's defense. Therefore, the failure of Johnson to obtain the evidence earlier did not prejudice Simpson's defense. Because there was no prejudice, we need not reach the question of whether or not Johnson's performance was deficient.
3. Prior Prison Term Enhancement: Equal Protection Challenge
Simpson contends one of the eight section 667.5, subdivision (b), prior prison term enhancements should not have been imposed because he served less than one year in prison for that particular offense. He asserts imposing the enhancement violates equal protection by according a greater effect to an in-state prior felony conviction than a similar out-of-state prior conviction. Simpson's argument fails because he has not demonstrated he is being treated differently than a defendant with an out-of-state prior conviction.
A. Background.
On March 9, 2001, a trial court sentenced Simpson 18 months in prison for a felony violation in Orange County Superior Court Case No. 00CF2843. At the time, the court gave him credited for 159 days actual confinement and 78 days of local conduct credits. On September 20, 2001, Simpson was paroled after 196 days in the custody of the Department of Corrections. He violated his parole and returned to prison on November 27, 2001. He served another 102 days before the trial court discharged his term and imposed a new one. In total, for the March 2001 conviction, Simpson served 298 days in state prisonand 159 days in local custody for a total of 457 days in custody.
Simpson does not dispute that for section 667.5, subdivision (b), purposes he served 298 days in state prison, comprised of the original 196 days plus the additional 102 days served after parole was revoked. (See § 667.5, subd. (g) [prior prison term includes continuous complete period of prison incarceration plus any period of reimprisonment upon revocation of parole which is not accompanied by a new commitment].)
B. Analysis
As relevant here, section 667.5, subdivision (b), requires the trial court to "impose a one-year term for each prior separate prison term served for any felony . . . ." But section 667.5 contains different criteria for prior convictions occurring within California and those occurring outside the state. Whereas section 667.5, subdivision (b), makes no mention of the length of the "prior separate prison term served for any felony[,]" section 667.5, subdivision (f), provides the enhancement applies to out-of-state felony priors "punishable by imprisonment in the state prison if the defendant served one year or more in prison for the offense in the other jurisdiction." (Italics added.) In other words, "section 667.5's one-year enhancement will attach when the convicted defendant has served any prior felony prison term in California, but only if he has elsewhere served a prior felony prison term of one year or more." (People v. McCarthy (1986) 176 Cal.App.3d 593, 595.)
Simpson contends because he spent only 298 days in state prison for the March 2001 conviction, imposition of the enhancement violates equal protection of the law. Simpson complains he is being treated more harshly than he would have been if the prior prison term had been served outside California.
We need not address the equal protection argument. Although Simpson spent only 298 days in state prison, he also spent 109 days in local confinement before his sentencing—a total of 457 days in continuous custody for purposes of the enhancement. As explained in People v. White (1987) 196 Cal.App.3d 967, a defendant's presentence custody credits are to be included in the calculating the length of a prison term served outside of California: "[S]ection 667.5 unambiguously encompasses prison terms of at least one continuous year of custody even though the actual time spent in a state penitentiary is less than one year. To exempt recidivists who compile extensive presentence credits because of delays in prior judicial proceedings while enhancing repeat offenders whose early prior pleas to identical crimes with identical prison sentences is irrational." (Id. at pp. 972-973; in accord People v. Hayes (1992) 3 Cal.App.4th 1238, 1249-1250.)
Thus, if Simpson's prior term had been served outside of California, his 457 total days in custody would satisfy section 667.5, subdivision (f). Because Simpson has not shown he was treated any differently than a defendant with an out-of-state prior conviction, he lacks standing to assert the denial of the equal protection of the law with regard to enhancement of his current offense based on his prior conviction. (See People v. Williams (1983) 140 Cal.App.3d 445, 450.)
DISPOSITION
The judgment is affirmed.
O'LEARY, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.