P. v. Revello

Filed 9/20/07 P. v. Revello 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 David Desie Revello of petty theft with a prior and commercial burglary. Defendant contends that the prosecution committed misconduct and violated his due process rights by: (1) allowing certain evidence to be destroyed, and (2) arguing to the jury that this was not a Three Strikes case and that defendants prior convictions were irrelevant to sentencing. We find no merit in these contentions and affirm the judgment.

I. BACKGROUND

Defendant wascharged by information with petty theft with a prior (Pen. Code,  666), commercial burglary (Pen. Code, 459), and six prison priors (Pen. Code,  667.5, subd. (b)). The court bifurcated trial on the priors and defendant waived jury trial on them. On May 2, 2006, the district attorney filed an amended information consolidating two of the prison priors and modifying the prior theft alleged in count 1. Defendant admitted the prior charged in count 1.

A. Prosecution Case

On September 26, 2005, David Chisley, a store detective in the loss prevention department at Wal-Mart, saw defendant walking through the front area of the Vallejo Wal-Mart store. Defendant was pushing a shopping cart with a car battery in it. Chisley saw that the battery had a pink sticker on it. Pink stickers are placed on return items by Wal-Mart door greeters, who stand by the front entrance and greet customers. Chisley testified that he saw defendant enter the store and get a sticker for the battery in his cart.

Chisley, who was dressed in plain clothes, maintained surveillance of defendant as he walked around to various locations in the store. He watched as defendant put four other items in his cart along with the battery. Eventually, defendant arrived at the automotive department. Once he got there, Chisley saw him take the battery with the sticker out of the cart and put it on a shelf with new batteries. Then he transferred the pink return sticker to a new battery on the shelf, and placed the new battery with the sticker into his cart.

Chisley followed defendant to the checkout lanes in the garden center where defendant paid for the four items, but not for the battery. Chisley confirmed with the cashier that defendant had not paid for the battery.

Defendant went back to the automotive department where he tried unsuccessfully to exit the store. Chisley testified the door greeter would not let defendant out because he had a new battery with a return sticker on it, but no receipt showing a battery exchange. Defendant then went back to the garden center, flashed his receipt for the four paid items at the cashier and door greeter, and walked out of the store. He did not pay for the battery.

Chisley and Damien McIntyre, also with Wal-Mart loss prevention, approached defendant in the parking lot, identified themselves, and asked him to come back to the store. Defendant complied. The receipt in defendants possession reflected no battery purchase. After completing paperwork, which included a written narrative, Chisley called the police.

Chisley had the used battery retrieved from the shelf. It had enough corrosion around the terminals for him to tell that it was a used battery. The used battery was kept in the loss prevention office for three days and was then returned to the automotive department for disposal. No photographs were taken of it. After the preliminary hearing, the new battery was placed back on the shelf. The retail value of the new battery was $59.86.

McIntyre testified he first saw defendant in the automotive department. Defendant was looking at the security camera, looking around, and moving real fast and jittery, so McIntyre kept him under observation. He watched defendant take a battery with a pink sticker from his cart and place it on the rack with the new batteries. McIntyre saw defendant remove the pink sticker from the battery he put on the shelf, and place it on a new battery, which he took from the shelf and placed in his cart. McIntyre was standing about 15 or 20 feet away from defendant. He had a clear and unobstructed view of the batteries.

McIntyre followed defendant to the garden center checkout and got in line behind him. Defendant paid for the four other items in the cart, and tried to exit the door at the garden center. He turned around and went back to the automotive department and tried to exit there. The door greeter asked to see the receipt, then would not let defendant exit. Defendant returned to the garden center and left the store. Defendant made no attempt to pay for the battery. Defendant was in McIntyres sight from the time he switched the batteries in his cart until he left the store. After defendant exited the store at the garden center, McIntyre and Chisley detained him. Defendants receipt did not show purchase of the battery.

B. Defense Case

Defendant testified that his friends wifes car would not start and he thought that the battery might be the problem. His friends name was David, but he did not know his last name. Defendant and David went into Wal-Mart with Davids battery to have it tested and serviced; they brought no receipt because they were not planning to return it. The battery was only three or four days old. The door greeter tagged the battery as a return. They took the battery to the automotive section and checked a guide to see if it was the right battery for Davids wifes car. They looked at other batteries too. They did not swap the used battery for the new one.

While they were in the battery aisle, Chisley and McIntyre came up like they were trying to cause trouble or something. One of them bumped into David and he got scared and wanted to leave so they both walked to the cashier in the garden center. The battery in the cart when they walked up to the cashier was the same one defendant came in with. The cashier handed him a receipt that included purchase of the new battery. He told the cashier, No, Imtheres a mistake, I didnt needI dont need to buy this battery. He called the cashiers attention to the pink return tag. She gave him a second receipt that did not include a charge for the battery.

Defendant denied that he tried to leave through the automotive department and was stopped by a door greeter. He testified that he came back to the automotive department to have Wal-Mart staff do a power check on the battery to see if it was good. This only took about two minutes. There was power in the battery. After having the battery checked, he went back out through the garden center. He waved at the cashier who had just rung up his other purchases, and she waved back.

When defendant left the store, Chisley and McIntyre came up and accused him of stealing the battery that he had come in with. They took him to the security office. Chisley brought the battery with them. After defendant had been in the security office for about 30 minutes, Chisley told McIntyre to [g]o down and look for a used battery. Ten minutes later, McIntyre came back with a battery, and asked defendant, Is this the battery you brought in? According to defendant, the battery he was shown looked like a new one.

C. Prosecution Rebuttal

Chisley testified on rebuttal that he saw no one in the automotive department inspect the battery defendant brought in, and that it takes longer than two or three minutes to test a battery for power. He and McIntyre did not approach defendant at any time in the store; they maintained surveillance from a distance. The battery defendant put on the shelf had corrosion around the terminals. It looked three to six months old. Chisley did not see defendant having a dispute with the cashier over his receipt and he did not see her give defendant a second receipt.

D. Verdict, Judgment, and Appeal

The jury found defendant guilty of both counts, and the trial court found five prison priors to be true. The court sentenced defendant to a term of seven years in state prison. Defendant timely appealed.

II. DISCUSSION

Defendant contends that his convictions must be reversed because: (1) his Sixth Amendment rights were violated because the prosecution failed to preserve the batteries, and (2) the prosecutor committed misconduct by arguing to the jury that this was not a Three Strikes case and defendants prior convictions were irrelevant to sentencing. Defendant further maintains that if his trial counsel waived his prosecutorial misconduct claim by failing to object a trial, the convictions should be reversed due to ineffective assistance of counsel.

A. Preservation of Evidence

On cross-examination at trial, Chisley testified that after being pulled from the shelf, the old battery stayed in the security office for three days before it was turned over to the automotive department, which disposed of it. After defendants preliminary hearing, the security office placed the new battery back on the shelf in the automotive department for sale.

Based on Chisleys testimony at the preliminary hearing concerning the return sticker and switching of batteries, defendant maintains the prosecution was aware that the new battery constituted potentially exculpatory evidence which the state had a duty to preserve. (See California v. Trombetta (1984) 467 U.S. 479, 488 [state has duty to preserve evidence that might be expected to play a significant role in the suspects defense].) The prosecutions failure to preserve the battery, he argues, denied him his due process right to compulsory process which encompasses guaranteed access to evidence in his favor. (See United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867.) Under federal and state case law, the destruction by the state of potentially exculpatory evidence violates this due process right where (1) the evidence possesses an exculpatory value that was apparent before it was destroyed, (2) the defendant would be unable to obtain comparable evidence by other reasonably available means, and (3) the state has acted in bad faith. (See People v. Beeler (1995) 9 Cal.4th 953, 976; People v. Cooper (1991) 53 Cal.3d 771, 810811.)

Defendants due process claim is unconvincing. First, instead of objecting to the loss of evidence in the trial court, defense counsel sought to exploit the missing evidence to maximum effect, referring three times in his closing argument to the fact that Wal-Mart had not retained the batteries in issue or made photographs of them.[1] By failing to raise his due process claim by way of objection or motion for sanctions in the trial court, defendant has forfeited it. (See People v. Beeler, supra, 9 Cal.4th at pp. 975976; People v. Gallego (1990) 52 Cal.3d 115, 179180.)

Second, the evidence demonstrates that the battery was never at any time in the possession of the state. Whatever duty the state may have to preserve evidence in certain situations, its duty to collect evidence in the possession of others is far more circumscribed. (See People v. Daniels (1991) 52 Cal.3d 815, 855.) The police cannot be expected to  gather up everything which might eventually prove useful to the defense.  (People v. Hogan (1982) 31 Cal.3d 815, 851, disapproved on another point in People v. Cooper, supra, 53 Cal.3d at pp. 835836.)

Third, as defendant implicitly concedes, there is no evidence in the record that the police in any fashion instructed or authorized Wal-Mart to dispose of the batteries. Defendant must be in a position to show bad faith conduct on the part of the state with respect to the destroyed evidence. (Illinois v. Fisher (2004) 540 U.S. 544, 547548 [124 S.Ct. 1200, 1202]; People v. Hines (1997) 15 Cal.4th 997, 1042.) The mere omission to instruct Wal-Mart to preserve the evidence cannot in itself be considered bad faith.

On these grounds, we reject defendants due process claim based on the failure to preserve evidence.

B. Prosecutorial Misconduct

Defendant contends that the following comments made by the prosecutor in closing argument constitute reversible prosecutorial misconduct: And so the other thing that you doand Im sure that you will in this caseis you set aside any considerations of punishment. That is for the judge. That is for the Legislature. And also set aside any pity that you may have for the defendant because hes on trial. I will tell you this much. This is not a three-strikes case. I know youve heard testimony in this case that there were three convictions of felonies that the defendant has suffered of moral turpitude. That only applies to his credibility as a witness. This is not a three-strikes case. So set that aside and set aside any feelings that you have of punishment, because that is for the judge to decide if hes convicted.

The context for the prosecutors comments was that the court had allowed the prosecutor to impeach defendant by asking him about three prior felony convictions involving moral turpitude. To minimize prejudice, the prosecution was limited to asking defendant to admit that he was convicted of two felonies involving moral turpitude in 1993 and of a third felony involving moral turpitude in 1998. No information about the nature of the felonies was allowed to be disclosed to the jury. In addition to his comments quoted above, the prosecutor also explained to the jury that it could use the fact that defendant had been convicted of felonies involving moral turpitude to decide whether he is an honest person whose testimony should be credited.

Defendant maintains that the prosecutors quoted argument would have led the jurors to conclude that this was a petty theft case involving the shoplifting of a $60 battery in which the defendants punishment would be minimal. He argues that the prosecutor may not try to suggest that defendant is facing a de minimis sentence in hopes of diminishing the jurys sense of responsibility. (See People v. Kegler (1987) 197 Cal.App.3d 72, 9091 [rejecting such a claim based on the facts].)

We note first that defendant failed to object to the prosecutors comments or request an admonition. He has therefore forfeited his claim of prosecutorial misconduct. (People v. Silva (2001) 25 Cal.4th 345, 373.)

Defendants claim also fails on the merits. The prosecutors remarks reinforced the courts instruction that considerations of punishment were not relevant to the jurors deliberations and attempted to dispel any confusion or concern they might have, in view of the evidence of defendants three prior felony convictions, about the possible application of the Three Strikes Law. These are not improper arguments. The prosecutor was entitled to try to head off possible jury speculation that defendant was facing a life sentence under the Three Strikes Law. His comments did not refer to any specific penalties or seek in any way to imply that the penalties at stake for defendant were not significant. Contrary to defendants suggestion, the prosecutor made no argument to the jury that his prior convictions were irrelevant to the sentence he would face if convicted. Given the strength of the evidence against defendant, and the minimal potential for harm in the prosecutors comments, there is no reasonable possibility that the outcome of the trial would have been more favorable to defendant had the comments not been made.

Because there was no prejudicial misconduct, defendants ineffective assistance claim also fails. (Strickland v. Washington (1984) 466 U.S. 668, 694 [ineffective assistance claim requires showing that but for counsels unprofessional errors there is a reasonable probability that the outcome would have been more favorable to him].)

III. DISPOSITION

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Stein, Acting P.J.

_________________________

Swager, J.

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Analysis and review provided by Carlsbad Property line attorney.

[1] Counsel argued as follows: But no photographs are taken of any batteries. No batteries are retained. Nothing is shown to a police officer who could come in and testify. None of that is done. . . . [] We are going to shift the burden over. [Defendant] has to explain all these things. He doesnt have that power when hes sitting in the room, and he doesnt have the power now[,] months later, because Wal-Mart has long gotten rid of whatever batteries they say exist. And the only evidence that they have that there were two batteries is David Chisley and Mr. McIntyre.