Filed 8/22/17 P. v. Rico CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Regina Rico appeals from a judgment entered after a jury found her guilty of grand theft (Pen. Code, §§ 484, 487, subd. (a) – count 1) and second degree burglary (Pen. Code, §§ 459, 460, subd. (b) – count 2). The trial court found that two prior prison term allegations were true. The trial court imposed a total term of four years and ordered defendant to serve two years in county jail and two years of mandatory supervision. On appeal, defendant contends: (1) the trial court erred when it allowed the prosecutor to introduce still images taken from the video of a prior incident that had been excluded; and (2) trial counsel rendered ineffective assistance by failing to request a limiting instruction regarding the still images. The judgment is affirmed.

I.Statement of Facts

A.Prosecution Case

On February 28, 2014, Anis Cherif was working as an assistant store manager at Kohl’s. An employee notified her that the cable to a rotating jewelry display case, or spinner, had been cut. Cherif went to the jewelry department and verified that the cable had been cut and the spinner was missing. Thirty pieces of jewelry, which were valued at $11,575, had been in the spinner.

When Tommy Meza, a loss prevention supervisor for Kohl’s, arrived at work that same day, he went to the jewelry department where he was notified that a spinner was missing. He observed that the metal cable, which had been attached to the spinner, had been cut. Though he inspected the area, he did not find any cutting tools. Meza estimated that the spinner weighed approximately 40 pounds. After he had verified that a store employee had not moved the spinner, he notified the district loss prevention manager.

Meza reviewed video surveillance footage of the jewelry department approximately 50 times that day. He saw a woman enter the store. She was wearing a hoodie and kept her head down to avoid the camera. Her dark hair was medium length. Meza estimated that she was between 5 feet 5 inches and 5 feet 6 inches tall and weighed 150 to 160 pounds. He did not observe any tattoos or scars. The woman went to the jewelry department where she approached the spinner several times. She eventually picked up the spinner and exited the store with it. There was a car parked in the red zone in front of the store. The woman put the spinner on the backseat of the car and entered the front passenger seat of the car. Meza believed that he knew the identity of the woman in the video, because he had dealt with a similar case involving the theft of a spinner when he worked at J.C. Penney.

Meza made a copy of the video and sent it to “ROC,” which is the moderate operation center based in Huntington Beach, and contacted a detective at that location. A BOLO (Be on the Lookout) bulletin was sent out through the Bay Area Organized Retail Crime Association. The bulletin included three images from the Kohl’s surveillance video.

Robert Wolford, a market investigations senior manager for J.C. Penney, has been involved in over a thousand theft and fraud investigations. On February 28, 2014, Wolford received a request for assistance from Kohl’s regarding the theft of a spinner. The request included photographs of the suspect. When Wolford viewed the photographs, he immediately recognized the suspect as defendant because he had investigated a case involving her on July 19, 2009. In the prior case, defendant entered the J.C. Penney store in Newark, went to the luggage department, and took a piece of luggage. She then went to the jewelry department, took a spinner, placed it in the luggage, and exited the store. Wolford had reviewed the video of this incident “[p]robably in excess of 40 hours or so.” He had also viewed “in excess of 50, 60 videos” showing defendant from different angles before identifying her. These videos were the product of different video camera views of the 2009 incident. Wolford clarified that the 2009 case was the “only case . . . of an actual physical spinner theft” associated with defendant.

Wolford compared the images from his case file with those provided by Kohl’s. Wolford was certain that the suspect in the Kohl’s photo was the same person who had committed the theft in 2009. He contacted the Kohl’s investigator and identified defendant as the thief. He also forwarded three images, which he identified as “from [his] case.” When Wolford viewed the Kohl’s video, he identified that person as defendant by noting that she exhibited the same characteristics in the videos from the 2009 case.

At approximately 7:30 p.m. on February 28, 2014, Officer Joshua Craig was dispatched to the Kohl’s store. He spoke with Meza, reviewed the surveillance video of the theft several times, and observed that the cable to the spinner had been cut.

After Meza received the response from Wolford and compared the images to those in the Kohl’s surveillance video, he told Officer Craig that he had identified the perpetrator of the Kohl’s theft as defendant. Officer Craig returned to the Kohl’s store where Meza showed him a flier that he had received from another loss prevention officer with the information on the suspect and similar types of thefts that had occurred with that suspect in the past. When Officer Craig compared the photos, he concluded that the two subjects were the same individual.

Officer Craig and several other officers went to defendant’s residence the next evening. Defendant’s mother allowed the officers to enter. Officer Craig escorted defendant’s daughter from the bedroom to the living room. She told him that no one else was in the bedroom. However, another officer found defendant in a “crouching, kind of a fetal position” in the bedroom closet. Officer Craig advised defendant of her Miranda[1] rights, which she stated that she understood and waived. Officer Craig asked her where the jewelry was and she replied, “It’s not here.” He noticed her shoes were very similar to the shoes of the woman in the surveillance video. Defendant was placed under arrest.

On June 13, 2008, Robert Pinedo, was a loss prevention supervisor for the Sears store in Cupertino when there was a theft of a spinner in the jewelry department. The cable to the spinner had been cut. When Pinedo reviewed the store surveillance video of the jewelry department, he observed two men and one woman in the area of the spinner. The three individuals appeared to be communicating with each other. One of the men cut the cable, picked up the spinner, placed it in a shopping cart, and exited the store.

Sergeant Alan Pham was involved in the investigation of the theft of the jewelry spinner from Sears in 2008. He obtained the store surveillance video of the theft. On June 19, 2008, Sergeant Pham interviewed defendant. Defendant admitted that she was the woman in the surveillance video.

B.Defense Case

Rosalinda Puente, defendant’s mother, testified that defendant was home at 3:40 p.m. on February 28, 2014. The following day, some police officers came to her apartment at about 7:30 p.m. They pounded on the door and announced their presence. At that time, defendant and defendant’s daughter were in the bedroom. She allowed the officers to enter the apartment and they went straight to defendant’s bedroom.

Jessica Fountain, defendant’s daughter, testified that she was on the computer and defendant was sorting out her closet when the officers arrived. The officers entered the bedroom, asked Fountain to step out of the room, and handcuffed her. Before Fountain exited the bedroom, defendant was standing in front of the closet. When Fountain was outside the bedroom, she heard a big bang and heard defendant say “Ow.” Fountain never saw jewelry, a spinner, or cash in her mother’s possession that day.

II.Discussion

A.Admissibility of Evidence

Defendant contends the trial court erred by allowing the prosecutor to introduce still images taken from a video of a prior incident that had been excluded as too dissimilar to establish identity under Evidence Code section 1101, subdivision (b).

1.Background

Prior to trial, the prosecutor sought the admission of four videos of prior thefts from retail stores involving defendant. The trial court admitted the videos of a July 17, 2009 theft from J.C. Penney in Newark and a June 13, 2008 theft from Sears in Cupertino. The videos were admitted under Evidence Code section 1101, subdivision (b) to show identity since they involved the theft of entire spinners from the top of a jewelry case. The videos of a March 29, 2011 theft from J.C. Penney in Newark and a December 16, 2007 theft from J.C. Penney in Cupertino were excluded. The court concluded that these two videos were not sufficiently similar to establish identity since they did not involve the theft of an entire spinner.

Outside the presence of the jury, Meza testified that he identified defendant from the still images and the video from the 2011 incident. Over a defense objection, the trial court ruled that the still images from the excluded video of the 2011 incident were admissible, since Wolford had sent them to Meza in response to the BOLO bulletin and Meza had compared them to the Kohl’s video and still images to determine that they depicted the same individual. The trial court also concluded that the parties should sanitize the photographs to prevent showing an excluded prior theft. The trial court found that the probative value of the photographs outweighed any prejudicial effect.

At trial, the prosecutor showed Meza the images that Meza had received from Wolford. The prosecutor asked: “Now, I know these particular images were in no way associated with that old spinner theft that you were just talking about, but were these images nonetheless ones that were forwarded to you in that reply for assistance needed?” Meza responded, “Yes.”

2.Analysis

“Except as otherwise provided by statute, no evidence is admissible except relevant evidence. [Citation.] Relevant evidence is evidence ‘having any tendency in reason to prove or disprove any disputed fact . . . .’ [Citation.] The trial court is vested with wide discretion in determining the relevance of evidence. [Citation.] The court, however, has no discretion to admit irrelevant evidence. [Citation.]” (People v. Babbitt (1988) 45 Cal.3d 660, 681.)

“ ‘Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 667.) “ ‘ “We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.” [Citation.]’ [Citation.]” (Id. at pp. 667-668.)

Defendant contends that the images were essentially propensity evidence in violation of Evidence Code section 1101, subdivision (a). She further contends that Wolford’s testimony that “those [images] are from my case” informed the jury that the images depicted a prior theft involving defendant.

Here, the still images from the inadmissible video of the 2011 incident were relevant. Wolford used the images to identify defendant as the individual depicted in the Kohl’s video and forwarded the images to Meza who used them for the same purpose. Thus, they were admitted to help the jury understand the witnesses’ identification testimony. We fail to understand how the jury could have considered these images as propensity evidence. Meza testified that the images were not from a prior spinner case to which he had previously referred. Wolford testified that the images were from his case and the only prior case about which Wolford had testified was the 2009 theft of a spinner. The 2009 incident had been ruled admissible. Neither witness referred to the 2011 incident. Thus, the trial court did not abuse its discretion in concluding that the probative value of the evidence outweighed any prejudicial effect.

Defendant also contends that the jury would have speculated about the origin of the images and concluded that defendant had committed another theft. We disagree.

During deliberations, the jury asked, “Can we be told the source of People’s Six(6)[?]” The trial court responded, “Mr. Meza testified that he received People’s 6 by email from Mr. Wolford. Mr. Wolford testified as to People’s 6 that ‘those came from my case.’ ” As previously stated, Wolford testified regarding a spinner theft in 2009, not the 2011 case. Moreover, the trial court instructed the jury that it could only use “evidence that is presented in the courtroom. ‘Evidence’ is the sworn testimony of witnesses, the exhibits admitted into evidence and anything else I tell you to consider as evidence.” Speculation as to the origin of the images is not evidence. We must presume the jury followed these instructions. (People v. Smith (2007) 40 Cal.4th 483, 517-518.)

In sum, the trial court did not abuse its discretion in admitting the still images from the 2011 incident.

B.Ineffective Assistance of Counsel

Defendant next claims that she was denied the effective assistance of counsel, because counsel failed to request a specific limiting instruction regarding the still images from the 2011 video.

“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) “ ‘In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or failed to act in the manner challenged,” an appellate claim of ineffective assistance of counsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966.)

Evidence Code section 355 provides: “When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” Thus, where a party does not request an instruction limiting the purpose for which evidence is admitted, the trial court has no sua sponte duty to give such an instruction. (People v. Jones (2003) 30 Cal.4th 1084, 1116.)

Defendant asserts that the jurors were told that the still images were not related to a prior theft and later told that they were. Thus, she argues that “[t]hey were instructed on how to use evidence of uncharged acts to determine identity, but not how to use evidence that they are specifically told does not relate to a prior theft. Consequently, the jury is likely to have used the evidence of the March 29, 2011 incident as propensity evidence, which is of course forbidden.”

Here, trial counsel’s decision not to request a limiting instruction on the still images was reasonable. First of all, as previously stated, the still images were relevant to show how Meza and Wolford identified defendant as the perpetrator of the charged offenses. Nothing in the nature of the images suggested that defendant had committed a third uncharged crime. Meza testified that the images were not associated with the theft of a prior spinner case. When the jurors expressed some confusion about the origin of the images, the trial court properly instructed them that Wolford had testified that the images were from his case. Wolford had testified that he reviewed several images of defendant for his case, which involved the 2009 incident. Trial counsel could have reasonably concluded that a limiting instruction was unnecessary or would have drawn undue attention to these images. Thus, we reject defendant’s claim of ineffective assistance of counsel.

III.Disposition

The judgment is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Elia, Acting P. J.

______________________________

Bamattre-Manoukian, J.