P. v. Corey

Filed 7/30/07 P. v. Corey CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Affirmed.

Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon, Lance E. Winters, and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

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Thomas Bradley Corey was convicted of one count of commercial burglary and one count of grand theft, after which he admitted that he had suffered a prior strike conviction. (Pen. Code, 459, 487, subd. (a), 667, subds. (b)-(i).) He was sentenced to state prison for a term of six years. Corey appeals, claiming there were evidentiary and sentencing errors. We affirm.

FACTS

As a Wal-Mart loss prevention officer (Randall Howdeshell) watched, Corey took a welder from a shelf in the hardware department, placed it in his shopping cart, walked to the electronics department, placed a computer in his cart, then walked past the registers toward the front door. As Corey left the store -- picking at something on the top of the computer box as he walked -- an alarm sounded and he was stopped by a greeter. Corey showed a receipt to the greeter and was allowed to pass, but Howdeshell followed him outside and asked him to return to the store to pay for the items in his cart. Corey showed his receipt to Howdeshell and said he had paid for both items in the electronics department.

Howdeshell looked at the receipt and saw that it differed from Wal-Marts receipts (different paper and different font style for the Universal Price Code) and had a number 10 on it which is generated by one of the registers at the front of the store, not a register in the electronics department. Howdeshell then looked at the items in Coreys basket and saw that the UPC tag had been partially removed from the computer box so the numbers could not be read. Howdeshell took Corey to the security office and called the Sheriffs Department. Later, Howdeshell determined that the employee whose number appeared on Coreys receipt was not working that day, and that the UPCs on the welder and computer did not match the UPCs or prices on Coreys receipt. Corey was arrested and charged.

At trial, the People presented evidence of the facts summarized above. In addition, Howdeshell described Wal-Marts electronic journal system, explaining that every sale is automatically stored by a transaction number and the time of sale, and that Coreys receipt listed the transaction number as 2179 and a transaction time of 7:56 p.m. Howdeshell searched Wal-Marts records for the two registers in the electronics department and for register 10 at the front of the store but was unable to find any transaction for a computer or welder, or for the transaction number on Coreys receipt, for the time period beginning when Corey placed the welder in his cart to the time he left the store.

Howdeshell testified that he never lost sight of Corey except perhaps for a second or two, and he prepared a videotape from the stores surveillance cameras that showed Corey entering the store, going through the electronics department, and leaving the store. Another part of the video showed register 10 for the relevant time period -- and no one purchased a welder or a computer.

The jury rejected Coreys defense (his wife testified that she saw him pay for the merchandise in the electronics department) and convicted him as charged. He then admitted the strike.

DISCUSSION

I.

Corey objected to the introduction of computer printouts and videotape prepared by Howdeshell but his objection (lack of foundation) was overruled; when he attempted to cross-examine Howdeshell about the calibration and maintenance of the registers and the video equipment, the prosecutors objection was sustained. On appeal, Corey now contends both rulings were wrong. The Attorney General disagrees in part but points out that, assuming both rulings were erroneous, the errors were harmless. We agree with the Attorney General.

Assuming there was an inadequate foundation for the computer printouts and videotape (Evid. Code, 1552, subd. (a), 1553; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1450), and assuming that defense counsel should have been permitted to cross-examine Howdeshell about how often the registers and video equipment were serviced, we cannot see how the result -- at best, the printouts would have been excluded and Howdeshell might have said the registers and video equipment were poorly maintained -- could possibly have affected the outcome of this trial. The remaining evidence -- Howdeshells testimony about how he watched Corey put the items in his cart and leave the store without paying, the alarm sounding, the non-matching receipt, and the videotape -- is overwhelming. This is not a close case. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Frye (1998) 18 Cal.4th 894, 946 [not every restriction on cross-examination rises to the level of a constitutional violation].)

II.

Corey contends Howdeshells testimony about his computer searches (and the absence of any entry matching Coreys receipt) was hearsay and should have been excluded on that ground. Leaving to one side the fact that defense counsel questioned Howdeshell about the computer searches, and assuming error, any such error was harmless for the reasons stated in Part I, ante.

III.

Because Coreys upper term sentence is based (among other things) on Coreys prior convictions, there is no Cunningham error. (People v. Black (2007) ___ Cal.4th ___, [July 29, 2007] WL 2050875.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

VOGEL, Acting P.J.

We concur:

ROTHSCHILD, J.

JACKSON, J.*

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

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*Judge of the Los Ang

eles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.