Filed 7/24/17 P. v. Quintanar CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE ANTHONY QUINTANAR,

Defendant and Appellant.


E065252

(Super.Ct.No. RIF1304106)

OPINION


APPEAL from the Superior Court of Riverside County. Charles Jacob Koosed, Judge. Affirmed with directions.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted defendant Jesse Anthony Quintanar of one count of robbery with personal use of a knife. (Pen. Code, §§ 211, 12022, subd. (b)(1).) Defendant waived jury trial and admitted four prior strike convictions (§§ 1170.12, 667, subds. (b)-(i)), and four five-year serious felony priors (§ 667, subd. (a)(1)), and that he had served four prior prison terms. (§ 667.5, subd. (b).)
After denying defendant’s motion to strike his prior convictions pursuant to section 1385, the court sentenced appellant to a total term of 38 years to life, consisting of 25 years to life for the robbery under the Three Strikes Law, one year for the weapon use, 10 years for two serious felony priors, and two years for two prior prison terms. The court stayed two five-year priors and two prior prison terms. It dismissed two strikes at the prosecution’s request.
On appeal, defendant contends the trial court violated due process by prohibiting evidence about the felony conviction of a nontestifying deputy. He also contends the court should have stricken, not stayed, four enhancements for his priors. We affirm the judgment with modifications.
II
STATEMENT OF FACTS
On May 7, 2013, loss prevention officer Christopher McCamey was working at a Kohl’s department store in Menifee. At around 8:30 p.m., McCamey was conducting surveillance by closed circuit TV when defendant and Elda Cumpian walked into the store. They were wearing matching black baseball hats and carrying a large empty reusable bag, which they placed in the bottom of a shopping cart. Defendant wore a dark windbreaker.
McCamey watched defendant put two pairs of Levi’s jeans in the bag. In the bedding department, defendant and Cumpian selected a sheet set and placed it in the cart.
McCamey had left the office to observe from the floor because the surveillance cameras did not cover that area. McCamey then returned to the office and watched defendant and Cumpian approach the customer service counter and attempt to make a return. The clerk entered defendant’s driver’s license information into the computer and the screen turned orange, indicating that a refund check would be sent by mail because defendant and Cumpian did not have a receipt. When McCamey called the clerk to verify that it was an attempted return, defendant and Cumpian left the store with the merchandise in their bag.
McCamey approached them and identified himself as a Kohl’s loss prevention employee. He asked defendant to step back inside the store to discuss the merchandise. Another Kohl’s employee joined them. Defendant pulled out a white-handled pocket knife, opened the blade, and pointed it at McCamey, warning, “Back the fuck up.” McCamey was caught off guard because defendant was an older man with a companion. McCamey retreated and called 911 as defendant and Cumpian walked away. McCamey followed them at a distance, updating their location to the 911 dispatcher by phone. He lost sight of them as they rounded the corner by a sushi restaurant just as the police arrived.
Deputy Sheriff Moore located defendant sitting in a Baskin-Robbins and took him into custody. Moore searched the dumpster area behind the store. Inside one of the dumpsters, he found an ivory-handled folding pocket knife atop some boxes that had been broken down and folded. Behind the dumpster was a Kohl’s shopping cart and a bag containing two pairs of Levi’s and bedsheets with the original store tags. He also found a dark windbreaker jacket and two baseball caps. He photographed the items where he found them.
Deputy Macalino apprehended Cumpian who admitted she had been at Kohl’s. A white PT Cruiser, registered in her name, was parked near the Kohl’s entrance. Inside the car was merchandise with tags on it from other stores.
McCamey made in-field identifications of defendant and Cumpian. The surveillance video was shown at trial. Although it did not show defendant putting items in the bag, McCamey testified that he observed defendant on the live feed. He testified that normally Kohl’s jeans have affixed exploding ink tags that set off an alarm when a person exits. McCamey did not see defendant remove any tags from the pants. Defendant did not try to evade the camera.
Deputy Moore testified that the photographs he took of the knife and the merchandise were destroyed by mistake. No fingerprints were found on the knife.
Cumpian testified for the defense. She admitted having prior convictions for assault on an officer, possession for sale of drugs, robbery, and burglary. In May 2013, she and defendant were living in her car. They went to Kohl’s to exchange two pairs of Levi’s she had purchased for her sons at another Kohl’s. She brought a blanket with her to make up the difference in price if necessary. They did not find the right sizes and styles of jeans. They checked the price of the blanket in the linens department. At the customer service desk, they told the clerk they did not have a receipt and the clerk received a call about them. Cumpian told defendant, “Let’s just go,” and they left, carrying the merchandise they had carried into the store.
Outside the store, a person wearing street clothing ran up to them and did not identify himself. Defendant began “freaking out” and told McCamey to back off. Cumpian did not see defendant display a knife. Defendant carried a flashlight because he had poor eyesight. He also had a tendency to be paranoid or jumpy. Cumpian walked away because she did not want to be around defendant.
Cumpian denied stealing the merchandise and seeking a refund. She pleaded guilty as part of a plea bargain in exchange for a lower sentence.
An investigator testified in rebuttal that he spoke to Cumpian before trial. Cumpian told him that she did not have an ID and defendant had used his ID for exchanges at Kohl’s several times. She also told him that she had placed a set of linens in the bag containing the pants. She left the store because she had a bad feeling she was going to be arrested.
III
IMPEACHMENT EVDIENCE
Another officer, Deputy Martin, who did not testify, was convicted in an unrelated matter of a felony for unauthorized use of a police computer. Defendant asserts Martin may have been the person responsible for destroying the photographs taken by Deputy Moore. Defendant argued the photographs were relevant to show “the condition of the tags on the merchandise” and of the knife and therefore he should have been allowed to present evidence of Martin’s felony conviction. The court denied defendant’s request.
On appeal, defendant contends that the trial court violated his state and federal constitutional rights. However, defendant assumes that Deputy Martin ordered the destruction of the evidence, a fact that was never established at trial. Even so, defendant cannot establish that its exclusion prejudiced him under any standard. His guilt was overwhelmingly established by the video surveillance footage and McCamey’s testimony.
A trial court may exclude proffered impeachment evidence of prior misconduct under Evidence Code section 352 “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (People v. Wheeler (1992) 4 Cal.4th 284, 295; see People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) The record must affirmatively show the trial court weighed prejudice against probative value but reviewing courts may infer an “implicit weighing by the trial court on the basis of record indications well short of an express statement.” (People v. Padilla (1995) 11 Cal.4th 891, 924.) The trial court need not expressly weigh prejudice against probative value. (People v. Crittenden (1994) 9 Cal.4th 83, 135.) All that is required is that the record demonstrate the court understood and fulfilled its responsibilities under the statute. (People v. Lewis (2009) 46 Cal.4th 1255, 1285.) A trial court’s ruling on the admissibility of evidence is reviewed under the deferential abuse of discretion standard. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Where it has marginal impeachment value and would result in undue consumption of time, the exclusion of evidence under Evidence Code section 352 generally does not contravene a defendant’s constitutional rights to confrontation and cross-examination. (People v. Brown (2003) 31 Cal.4th 518, 545.) “Although the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right.” (People v. Cunningham (2001) 25 Cal.4th 926, 999.)
We conclude evidence regarding Martin’s subsequent conviction was properly excluded under the rules of evidence. Cross-examination is limited to matters “within the scope of the direct examination” (Evid. Code, § 773, subd. (a)), and may elicit any information that is relevant to a complete and accurate understanding of the witness’s testimony on direct examination. (People v. Dotson (1956) 46 Cal.2d 891, 898; Eddy v. Gallaway (1970) 11 Cal.App.3d 185, 192.)
Deputy Moore did not mention Martin in his testimony about the destroyed photographs. Evidence about Martin’s subsequent conviction would not have contributed to the jury’s complete and accurate understanding of Moore’s testimony. Martin was never called as a witness and his conviction had no bearing on Moore’s credibility. It therefore fell outside the scope of proper cross-examination.
The proffered evidence also lacked foundation, as defense counsel never established that the photographs were actually marked for destruction by Martin. In the absence of such a showing, the evidence of Martin’s felony conviction would have been irrelevant, as it would have had no “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Furthermore, defense counsel never filed a Trombetta-Youngblood motion to demonstrate either that the evidence was material (California v. Trombetta (1984) 467 U.S. 479, 488-489) or that it was destroyed by law enforcement or the prosecutor in bad faith (Arizona v. Youngblood (1988) 488 U.S. 51, 58.) Defense counsel conceded he could not establish that the photographs were destroyed “maliciously.”
Additionally, the evidence constituted inadmissible evidence of character and propensity. Evidence of specific instances of a person’s conduct “is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) The purpose of this rule is to prevent a trier of fact from inferring a person committed the bad act at issue based on the person’s commission of bad acts on other occasions. (People v. Earle (2009) 172 Cal.App.4th 372, 397; People v. Von Villas (1992) 10 Cal.App.4th 201, 262.) Defense counsel wrongly sought to show that, based on his felony conviction, Moore destroyed the photographs.
Evidence about Martin’s conviction in an entirely separate matter was also properly excluded because its “probative value [was] substantially outweighed by the probability that its admission [would] (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) Evidence regarding Martin’s conviction, especially when he was not testifying as a witness in this case, would have resulted in juror confusion, consumed undue court time, and obligated the court and counsel to conduct a mini-trial within defendant’s trial. Defense counsel had sufficient opportunity to establish through Deputy Moore’s testimony that the photographic evidence had been negligently destroyed, without venturing into the irrelevant evidence of Martin’s conviction.
Accordingly, the exclusion of that evidence did not violate any constitutional right. A trial court has “wide latitude” to restrict cross-examination and may impose reasonable limits on the introduction of such evidence. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) Defendant cannot make out a colorable claim that the trial court infringed his rights under the United States Constitution. (Delaware v. Fensterer (1985) 474 U.S. 15, 19-20.)
Defendant also cannot establish prejudice by demonstrating that it is reasonably probable he would have obtained a different outcome at trial if Martin’s conviction had been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.) Even if the trial court erred, it merely misapplied the ordinary rules of evidence. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) The overwhelming evidence points to defendant’s guilt. McCamey watched defendant and Cumpian steal merchandise and try to exchange it. When McCamey confronted them, defendant threatened him with a knife. The police quickly apprehended defendant and recovered the knife and the merchandise. Under the circumstances, no error resulted in a miscarriage of justice. (Evid. Code, § 354.) Even assuming Martin was responsible for destroying the photographs, there is no possibility that fact or Martin’s conviction would have affected the jury’s evaluation of Deputy Moore’s credibility. Any error was harmless —even under the more exacting standard of Chapman v. California (1967) 386 U.S. 18, 24.
IV
SERIOUS FELONY PRIOR ENHANCEMENTS
Respondent agrees with defendant that the trial court should have stricken, and not stayed, the enhancements for two of his serious felony priors. Section 667, subdivision (a)(1), provides in pertinent part: “. . . any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.” (§ 667, subd. (a)(1).)
In determining whether the prior serious felony convictions were “brought and tried separately,” the California Supreme Court has concluded that the charges on those convictions cannot have been brought in the same complaint: “We conclude that the requirement in section 667 that the predicate charges must have been ‘brought and tried separately’ demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt. Here, as the record plainly reveals, the charges in question were not ‘brought . . . separately,’ but were made in a single complaint.” (In re Harris (1989) 49 Cal.3d 131, 136.) Accordingly, the California Supreme Court held that, under section 667, the defendant “was subject to only one 5-year enhancement, not two.” (Id. at p. 137.)
The information in the current case alleged that defendant had four prior serious felony convictions, consisting of two separate robbery convictions on August 11, 1983, in case No. C52095, as well as convictions on November 10, 1998, for assault with a deadly weapon and criminal threats in case No. BA167181. Defendant admitted the truth of those prior conviction allegations. Because the 1983 and the 1998 convictions were not “brought and tried separately,” only two enhancements under section 667, subdivision (a)(1), were properly imposed and the other two enhancements should be stricken.
During sentencing the trial court imposed, but stayed, a prison prior enhancement for one of defendant’s robbery convictions in case No. C52095, and for defendant’s conviction for assault with a deadly weapon in case No. BA167181. It did so in both cases because it had erroneously used both of those convictions as the basis for imposing serious felony prior enhancements, and therefore believed that it had no discretion to impose enhancements for the two prison priors as well. However, the trial court had the discretion to impose all four prison prior enhancements. Therefore, the matter should be remanded to allow the trial court to exercise its discretion either to impose or to strike the two prison prior enhancements that it stayed. (People v. Solorzano (2007) 153 Cal.App.4th 1026, 1040-1041; People v. Medina (1988) 206 Cal.App.3d 986, 989-991.)
In light of the fact that the trial court must still determine whether it will impose or strike two of the enhancements for defendant’s prison priors, this court orders the trial court to make the necessary corrections to the abstract of judgment at the time that it resentences defendant.
V
DISPOSITION
We affirm the judgment with modifications. Upon remand, the trial court shall strike the serious felony prior convictions that the trial court stayed and the trial court shall exercise its discretion to impose or strike the enhancements for the two prison priors that it stayed and make any necessary modifications to the abstract of judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.

We concur:


MILLER
Acting P. J.


SLOUGH
J.