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People v. Stafford

California Court of Appeals, Third District, Sutter
Apr 21, 2009
No. C056891 (Cal. Ct. App. Apr. 21, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DEBRA NAN STAFFORD, Defendant and Appellant. C056891 California Court of Appeal, Third District, Sutter April 21, 2009

NOT TO BE PUBLISHED

Super. Ct. No. CRF062614

SCOTLAND, P. J.

A jury found defendant Debra Stafford guilty of second degree burglary (Pen. Code, § 459), and she was placed on probation with conditions that included serving 90 days in county jail. On appeal, defendant claims that the trial court committed instructional and evidentiary error. We shall affirm the judgment.

BACKGROUND

In October 2006, defendant, her daughter, Berenda Pitkin, and Pitkin’s friend, Karen Podborny, were charged with burglary. After Podborny was convicted of second degree burglary and Pitkin was convicted of misdemeanor burglary, they were witnesses at defendant’s trial.

Podborny testified that she and Pitkin decided to steal an air mattress in order to repay a debt to Podborny’s aunt. Pitkin called defendant and asked her to drive them to the Wal-Mart in Yuba City. Defendant agreed and picked them up. En route to the store, Podborny and Pitkin talked about stealing from Wal-Mart, and defendant offered to fake a “slip and fall” in order to distract the store’s “greeter,” thus allowing the other two to leave the store undetected. Podborny said defendant claimed she knew someone who had done this before.

The job of a store greeter at Wal-Mart is to meet and greet the customers, to assist them with shopping carts, and to check receipts for larger “unbagged” items as the customers leave the store.

Jessey Winslow, a security officer for Wal-Mart, testified as follows:

Winslow was immediately suspicious of the three women after they entered the store, and he continued to observe them as they moved around. During the time they were in the store, Winslow saw all three women put various items into two shopping carts. He also saw Podborny and Pitkin put items into large plastic tubs with lids on top of them. He then observed the three women go to the self-checkout aisle, where a single cashier stood at her own register to provide assistance for the four unattended, self-checkout registers.

When the women arrived at the self-checkout aisle, Winslow saw defendant take an air mattress from one of the shopping carts, walk to the register closest to the cashier, and ask the cashier for help. The cashier came over and talked to defendant; when their conversation was over, defendant set the air mattress on the ground and walked past the cashier to a display of musical instruments.

When the cashier then approached Podborny and Pitkin at their register, Winslow saw defendant call out repeatedly for the cashier’s help with a guitar that she had taken from the instrument display. The cashier left Podborny and Pitkin to assist defendant. While defendant and the cashier were talking, Winslow saw Podborny and Pitkin scanning only some of the merchandise in their shopping carts.

Upon finishing her conversation with the cashier, defendant returned the guitar to the instrument display and remained near that display. The cashier went back to her register, and Podborny and Pitkin finished at their register. As Podborny and Pitkin began walking toward the exit, Winslow watched defendant walk behind them and then hurry to get in front of them.

Following them toward the exit, Winslow saw defendant “walk around in a fairly large circle. Her head was pointing outwards towards all the people around her. Then she tripped herself. [¶]... [¶] She raised her left leg in the air and hit the back of her leg, front of her leg, causing herself to fall onto the ground.” The store greeter, who was walking toward Podborny and Pitkin to check their receipt, turned toward defendant to help her; Podborny and Pitkin continued to walk out of the store.

Winslow detained Podborny and Pitkin in front of the store and took them to the security office, where approximately $622 worth of merchandise was found in their shopping carts, for which they paid only $55. Defendant did not ask for medical assistance or complain of any injury.

Pitkin testified on behalf of defendant, her mother. Pitkin claimed that she called her mom and asked for a ride to Wal-Mart because Podborny needed to buy a few things for her children. She explained to defendant that they had to go to the Wal-Mart in Yuba City because Podborny had “gotten in trouble” at the Wal-Mart in Linda. According to Pitkin, defendant agreed because she wanted to see the new Wal-Mart.

Contrary to Podborny’s testimony, Pitkin testified that on the drive to Yuba City, she and Podborny did not discuss their plans to steal from Wal-Mart. When asked about defendant’s fall in front of the greeter, Pitkin said defendant did that just “to embarrass [her],” to get Pitkin to “hurry up.”

The jury did not believe Pitkin’s version of events and found defendant guilty of second degree burglary.

DISCUSSION

I

Defendant contends it was error for the trial court to instruct the jury with Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 334, leaving the jury to decide whether Podborny was defendant’s accomplice in the crime. Defendant argues the court should have instructed with CALCRIM No. 335 and identified Podborny as an accomplice as a matter of law.

“A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof....” (Pen. Code, § 1111.) The purpose of the corroboration requirement is “to ensure that a defendant will not be convicted solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives.” (People v. Davis (2005) 36 Cal.4th 510, 547.)

“To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ‘“[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citation.]’” (People v. Avila (2006) 38 Cal.4th 491, 562-563.) However, while corroborating evidence need only be slight, “it is not sufficient to merely connect a defendant with the accomplice or other persons participating in the crime. The evidence must connect the defendant with the crime, not simply with its perpetrators.” (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.)

Here, the jury was instructed that, should they find Podborny to be defendant’s accomplice, they could not convict defendant on Podborny’s testimony alone but must find independent corroborating evidence.

Podborny’s testimony that defendant participated in the burglary was corroborated in two ways. First, Winslow saw defendant work to distract the cashier while Podborny and Pitkin were scanning only select merchandise from their shopping carts. Second, Winslow saw defendant “trip herself” in front of the greeter, which allowed Pitkin and Podborny to leave the store with the stolen merchandise. This evidence was sufficient to corroborate Podborny’s testimony that defendant intended to enter the store to commit larceny, i.e., by faking a “slip and fall” in order to distract the door greeter so Pitkin and Podborny could leave with the stolen merchandise.

Consequently, even if the court had instructed as defendant urges on appeal, the result would have been the same. (People v. Lewis (2001) 26 Cal.4th 334, 370.) Given Winslow’s testimony, the failure to instruct with CALCRIM No. 335 was harmless.

II

Defendant also claims the trial court erred in “denying the defense an opportunity to explore... Podborny’s motive to implicate [defendant] in the shoplifting scheme.” We disagree.

At trial, Podborny admitted she was convicted and sentenced for her role in the Wal-Mart burglary. Defense counsel then asked Podborny if the conviction also resulted in a violation of Podborny’s probation. Podborny admitted that it did, and that she was going to prison. The prosecutor objected to the question, and the court sustained the objection, ruling that a probation violation alone was not a proper basis for impeachment.

Defendant argues she should have been allowed to pursue this line of questioning in order to show the witness was motivated to lie in exchange for leniency on her probation violation. However, “[t]he court did not bar defendant from seeking to show that [Podborny] had received benefits or promises for her testimony; it only prohibited evidence of her probationary status untethered to any specific showing that it could have affected her testimony. [Citation.] In short, defendant has failed to demonstrate that ‘the prohibited cross-examination would have produced “a significantly different impression of [the witness’s] credibility....” [Citation.] Accordingly, we find no abuse of discretion.’” (People v. Chatman (2006) 38 Cal.4th 344, 374.)

Because there was no cumulative error, we reject defendant’s claim to the contrary.

DISPOSITION

The judgment is affirmed.

We concur: HULL, J., BUTZ, J.


Summaries of

People v. Stafford

California Court of Appeals, Third District, Sutter
Apr 21, 2009
No. C056891 (Cal. Ct. App. Apr. 21, 2009)
Case details for

People v. Stafford

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DEBRA NAN STAFFORD, Defendant and…

Court:California Court of Appeals, Third District, Sutter

Date published: Apr 21, 2009

Citations

No. C056891 (Cal. Ct. App. Apr. 21, 2009)