P. v. Legras

Filed 10/30/06 P. v. Legras CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Katherine Mader, Judge. Affirmed.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant William Francis Legras appeals from a judgment of conviction. A jury found him guilty of second degree burglary (Pen. Code, § 459), after which the trial court sentenced him to the middle term of two years in state prison.[1] On appeal, he claims instructional error violating his federal and state constitutional rights to due process of law. We disagree and affirm the conviction.

FACTS

At about 8:00 a.m. on July 5, 2005, Andre Watts (Watts), a loss prevention investigator at the Home Depot on Slauson Avenue in Ladera Heights, observed defendant in the plumbing aisle. Defendant picked up three faucets and carried them with him to the outdoor garden department. Defendant threw two of the faucets over the fence. When he threw the third faucet, it did not go over the fence but fell to the ground and broke open. Defendant then left the garden department and walked out of the store.

Tony DeCiccio (DeCiccio) was working in the Home Depot receiving area, near the garden department. He heard a thumping noise outside the garden department, looked over and saw defendant throw a faucet over the fence then attempt unsuccessfully to throw another faucet over the fence. After defendant walked away, DeCiccio investigated and found two other faucets outside the fence. He reported the incident to management.

Watts had followed defendant out of the store to the parking lot, where defendant waited for five to ten minutes. Defendant then went inside a nearby McDonald’s restaurant. Watts called the loss prevention manager, Lupe Diaz (Diaz), from his cell phone. Diaz then had DeCiccio accompany her and Watts to the McDonald’s, where DeCiccio identified defendant as the man he had seen throwing the faucets. DeCiccio returned to work, and Diaz went to retrieve the faucets. Diaz retrieved three faucets from outside the fence and a damaged faucet inside the fence. The faucets were valued at $68 to $90 apiece.

Watts waited for defendant to leave the McDonald’s. He identified himself, handcuffed defendant and escorted him to the Home Depot security office, where Diaz joined them. Both in the parking lot and in the security office, defendant apologized for taking the faucets and explained that he planned to sell them for lunch money.

Los Angeles County Deputy Sheriff Ian Beckford went to the Home Depot security office, where he read defendant his rights and then interviewed him. Defendant told Deputy Beckford that he recently had started a new job, but he had not yet been paid. He decided to go to Home Depot and take the faucets, then try to sell them to get some money. Defendant had planned to retrieve the faucets from outside the fence and place them in two plastic Home Depot shopping bags, so no one would suspect him of stealing them. After the interview, Deputy Beckford placed defendant under arrest.

Diaz offered to provide Deputy Beckford with copies of video surveillance tapes. He told her that a detective or the district attorney would contact her if necessary. A detective later contacted her and asked for copies. Diaz attempted to make copies but was unable to do so. She could view the tapes but due to technical problems was unable to copy them. The tapes were kept only 45 days pursuant to company policy.

Defense

Defendant’s brother, Wayne Legras (Wayne), testified that he and defendant had worked together for more than 23 years. They co-owned a licensed and bonded painting company. On June 30, 2005, they had received a partial payment of $1,150 for a painting job.

On July 3, 2005, Wayne gave defendant $60 but, at defendant’s request, held onto the remaining $300 of defendant’s share of the money, so that defendant would not spend it all over the holiday. The two planned to meet in the paint department of the Home Depot at about 8:00 a.m. on July 5. Wayne went there to meet defendant, but defendant was not there. According to Wayne, defendant did not need any lunch money.

DISCUSSION

Defendant claims error in the trial court’s refusal to instruct the jury according to Evidence Code section 412 that “[i]f weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence should be viewed with distrust.” It is defendant’s position that the eyewitness identification of him as the person who threw the faucets over the fence was weaker and less satisfactory than the video surveillance tapes. Therefore, the prosecution’s failure to produce the video surveillance tapes required that the eyewitness identification evidence be viewed with distrust.

Defendant requested an instruction based on Evidence Code section 412. The prosecution argued that the instruction was inappropriate, in that it was not in the prosecution’s power to produce the tapes; the prosecution never had possession of copies of the tapes. The trial court noted that there was “no testimony that anybody has seen the videotape and it, in fact, is stronger and more satisfactory evidence than the evidence of the eyewitnesses who testified who were, I think, pretty strong.” The court concluded that the eyewitness testimony was not weaker or less satisfactory than the video surveillance tapes which were not necessarily clear or definitive, so it denied defendant’s request.

Instruction pursuant to Evidence Code section 412 should be given only where (1) it was in a party’s power to produce the evidence (People v. Von Villas (1992) 10 Cal.App.4th 201, 245) and (2) the evidence is, in fact, stronger (People v. Morris (1991) 53 Cal.3d 152, 213-214, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1). Here, it was not within the prosecution’s power to produce the video surveillance tapes; when the Sheriff’s Department attempted to get copies of the tapes, Home Depot was unable to provide them due to a problem with its equipment. The tapes were kept only 45 days; there is nothing in the record to show that the prosecution was aware of this.[2] Additionally, defendant failed to show that the video surveillance tape evidence was stronger or that its introduction would have aided his case, i.e., that the result would have been any different. There were two eyewitnesses who personally observed defendant throw the faucets over the fence; one of those eyewitnesses and another witness apprehended defendant and heard him apologize for taking the faucets; and a fourth witness--a Sheriff’s deputy--heard defendant admit taking the faucets. Under the circumstances, the trial court did not err in refusing defendant’s requested instruction. (Morris, supra, at p. 214; Von Villas, supra, at p. 245.)

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

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[1] Pursuant to a plea agreement, defendant admitted three prior convictions under Penal Code section 667.5, subdivision (b), but no enhancements were imposed therefor, and additional prior conviction allegations were dismissed.

[2] By the time the defense requested copies of the tapes, they had been destroyed.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.