P. v. Coilton

Filed 8/29/07 P. v. Coilton CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury convicted defendant Ezell Coilton, Jr. of one count of second degree commercial burglary. (Pen. Code,  459.) The conviction arose from an attempted shoplifting at a grocery store. Defendant contends the trial court erred by excluding an expunged criminal conviction as evidence to impeach a prosecution witness. We disagree because the exclusion was required by statute and did not violate defendants constitutional rights. Accordingly, we affirm.

I. FACTS

The People originally charged defendant with three commercial burglary counts, all involving the Winco Foods store in Vacaville. Prior to trial, the People announced they would not proceed on one of the charged counts. The following evidence was introduced at defendants trial on count 1, pertaining to an incident on January 20, 2006, and count 2, pertaining to February 3, 2006.

Count 1. Timothy Austin worked at Winco as a loss prevention specialist. His job was to observe customers for suspected shoplifting. He had eight years of experience.

On January 20, 2006, at approximately 5:30 p.m., Austin saw two African-American men in aisle 8. He identified one of the men in court as defendant. Defendant and the other man had a shopping cart which contained a blue plastic storage box displayed in aisle 9. The men were standing next to the baby formula in aisle 8. The men drew Austins attention because they were nervous, looked back and forth, and looked at the security camera.[1]

The two men loaded four or five cases of the baby formula, Similac, into the blue box. One of the men looked directly into the security camera when he picked up the baby formula. Austin thought there might be a theft in progress and alerted the store supervisor, Tanya Martinez.

Austin left the store and stood outside the outer exit doors. He saw that defendant came out of the inner exit doors into what is called the cart room, where shopping carts are stored between the inner and the outer exit doors. Defendant was pushing the shopping cart containing the blue box of Similac. Defendant came to within inches of the outer doors, stopped, and pushed the shopping cart back through the inner doors into the store.

Austin entered the store, and saw that defendant had pushed the cart 15 feet into the store. Defendant turned to Austin, said Youre not going to catch me this time, and walked out.

Supervisor Martinez also saw defendant attempt to leave the store with the shopping cart containing baby formula. She positively identified defendant in court.

Austin inventoried the contents of the shopping cart and found that it contained 10 one-pound cans of Similac, retailing for about $19 apiece; two cases of six 12-ounce cans of Similac, retailing for about $12 apiece; a bottle of Cuervo 1800 tequila; a bottle of Skyy vodka; and a bag of potato chips. The total retail value of the Similac and the tequila was about $380.

Count 2. On February 3, 2006, at approximately 9:20 p.m. to 9:30 p.m., Austin noticed a white female in aisle 4 with a shopping cart containing a blue or gray plastic bucket, sold in the store and similar to the blue storage box we referred to above. The female was next to the makeup display shelf, and was selecting makeup items and placing them in the cart next to the bucket.

The female moved to aisle 5 and met up with defendant. Austin recognized him right when I saw him. The female and defendant stayed together and moved through the store to the paper aisle. Defendant removed the bucket from the cart, placed it inside the paper display shelf, and walked over to the baby formula, which was in another aisle, aisle 8. He looked at the Similac on the shelf.

Defendant then walked back to the paper aisle and grabbed the bucket. Austin telephoned the police. Defendant put the bucket in the shopping cart and proceeded to aisle 8. The female was with him. Defendant knelt down, looked both ways, and picked up two cases of Similac and put them in the bucket. He put more Similac in the bucket. Austin was still on the phone with the Vacaville Police Department, and alerted supervisor Martinez. Martinez observed defendant and the female, first on surveillance monitors and then on the sales floor. She positively identified defendant in court.[2]

The female parted from defendant and walked out of the store, just as Vacaville Police Officer Stuart Tan arrived. The female saw the police car and re-entered the store. Martinez pointed out the female to Officer Tan, who spoke to the female; meanwhile, defendant was in aisle 1 putting candy bars into the bucket.

Defendant pushed the cart toward the inner exit doors of the store. Officer Tan, Martinez, and the female suspect were standing by the door. Defendant abandoned the shopping cart and tried to walk out of the store. Martinez pointed him out to Officer Tan, who made defendant lie on the floor and detained both defendant and the female. Officer Tan positively identified defendant in court.

Austin inventoried the contents of the shopping cart and found that it contained 26 cans of Similac, some makeup, and candy bars, of a total retail value of $361.86.

In addition to the above testimony, the People introduced surveillance tapes of the store. The tapes apparently showed defendant pushing the cart into the cart room and then pushing it back into the store on January 20, and showed defendant and the female in the store on February 3, in particular their pushing the shopping cart toward aisle 8.

The jury was unable to reach a verdict on count 1. The court declared a mistrial as to count 1, and count 1 was dismissed. The jury convicted defendant on count 2. The court found true an allegation that defendant had suffered a prior conviction as described by Penal Code section 667.5, subdivision (b). The court sentenced defendant to state prison for three years, suspended criminal proceedings, and committed defendant to the California Rehabilitation Center for a three-year term.

II. DISCUSSION

Defendant contends that the exclusion of a witnesss expunged criminal conviction from use as impeachment evidence violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. We disagree for the following reasons.

A few days before trial, the People learned that Austin had suffered a felony conviction for receiving stolen property on August 7, 1998, and that the conviction was expunged pursuant to Penal Code section 1203.4 (section 1203.4) on June 13, 2003. The People filed a motion in limine to exclude the expunged prior conviction as impeachment evidence to challenge Austins credibility. The People relied on Evidence Code section 788, subdivision (c) (section 788(c)) and People v. Field (1995) 31 Cal.App.4th 1778 (Field). The trial court, following Field, granted the motion. The trial courts ruling was correct.

Section 1203.4 applies to a defendant who has suffered a conviction, but is not currently charged with a crime, on probation, or serving a sentence. Such a defendant may seek expungement of his conviction if he has either (a) fulfilled the conditions of his probation for the entire probationary period; (b) been discharged prior to the termination of the probationary period; or (c) deserves expungement in the interests of justice. When the conviction is expunged, the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted. . . . ( 1203.4, subd. (a); see People v. Butler (1980) 105 Cal.App.3d 585, 587.)

Section 788(c) explicitly provides that a felony conviction expunged under section 1203.4 cannot be used to impeach a witness, unless the witness himself is on trial. The California Legislature has seen fit to render convictions expunged pursuant to section 1203.4 as incompetent impeachment evidence for ordinary witnesses in civil or criminal trials. [Citations.] (Field, supra, 31 Cal.App.4th at p. 1787.) Section 788(c) was not abrogated by Proposition 8 (Cal. Const., art I,  28, subd. (d)). (Field, supra, at pp. 1789-1790.)

Defendant contends that section 1203.4 does not really expunge a conviction in the dictionary sense of the term, because the conviction is not rendered nonexistent for all purposes, principally nonpenal concerns pertinent to public safety and welfaresuch as disclosure when applying for a license or a public office, qualification for employment as a peace officer, or disbarment of an attorney. (See People v. Vasquez (2001) 25 Cal.4th 1225, 1230-1231; Field, supra, 31 Cal.App.4th at p. 1787.) But that is not the point. We deal here with impeachment in a criminal trial. Once a conviction has been expunged, it is no longer a viable conviction for impeachment purposes. [Citation.] (Field, supra, at p. 1790.)

Defendant also contends that his inability to impeach Austin with his expunged conviction violated his Sixth Amendment right to compulsory process and confrontation, and his Fourteenth Amendment due process right to put on a defense. He relies primarily on two confrontation clause cases, Davis v. Alaska (1974) 415 U.S. 308 (Davis) and Delaware v. Van Arsdall (1986) 475 U.S. 673 (Van Arsdall). But those cases involved the limitation of cross-examination on matters that went to the heart of the prosecutions case.

In Davis the court found a violation of the confrontation clause when the trial court precluded cross-examination regarding a witnesss status as a juvenile delinquent on probation, which went directly to possible bias. (Davis, supra, 415 U.S.at pp. 309, 315-319.) Likewise, in Van Arsdall the court found a confrontation clause violation when the trial court precluded cross-examination regarding any deals with a key prosecution witness to drop charges in exchange for his testimony against the defendant. (Van Arsdall, supra, 475 U.S. at pp. 676-680.) The impeachment in each case implicated a core issue of bias that may have directly affected the witness testimony.

Here we have an eight-year-old conviction for a nonviolent offense, followed by Austins working for eight years as a loss prevention specialist, essentially a security guard, with no apparent further offenses. In addition to the statutory exclusion of his old expunged conviction for legislatively determined valid reasons, any use of that conviction to impeach would have essentially raised a matter collateral to the issue of defendants guilt. Austins testimony is clear and consistent, and is corroborated by testimony of supervisor Martinez, Officer Tan, and the surveillance tapes.

The confrontation clause does not prevent a trial judge from imposing any limits on defense counsels inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about . . . harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant. (Van Arsdall, supra, 475 U.S. at p. 679.)

There is no constitutional error. Moreover, any error, on the facts of this case, would be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)

III. DISPOSITION

The judgment of conviction is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Swager, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

[1] Each aisle of the store was covered by a separate security camera.

[2] Martinez noted that defendant had a different hair color than on January 20.