P. v. Fields

Filed 9/27/06 P. v. Fields CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Judith Fields appeals her convictions for two counts of petty theft with a prior on the grounds that the court erroneously excluded lay testimony regarding her mental state. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2001, defendant was convicted of petty theft and placed on probation. A month later, she was stopped for shoplifting at Foods, Etc. The assistant manager saw defendant buying groceries at a check stand. Several items, including a package of meat, were removed from defendant’s cart because she did not have enough money to pay for them. Those items were placed on the nearby customer service check stand.

After paying for her other groceries, defendant went to the customer service register to buy a balloon, and she was directed to the regular checkout line to pay for it. Defendant also picked up the meat, and put it in a bag of groceries she had already purchased. When she went back to the checkout line to pay for the balloon, she did not tell the checker that she had the meat. She paid for the balloon and headed toward the exit. The assistant manager confronted defendant. Defendant said, “[Y]ou know me, it will be okay, let me just give it back.” The manager told defendant she would have to call the police. Defendant was upset, and said she was going into “a diabetic-type problem” and needed water and air.^[1]

In June 2003, defendant was detained for shoplifting at Safeway Stores, Inc. On defendant’s third trip into the store that day, a security guard saw her adding items to a shopping cart containing bagged groceries that she had already purchased. Another employee asked defendant if she needed help, and brought her an extra cart. The security guard watched defendant as she moved around the store for approximately an hour. Defendant placed magazines and other items into bags of groceries containing items that were already purchased.

Defendant took one of the carts through the check stand, and paid for a number of items. She told the clerk she had another cart she needed help out with, and another employee pushed defendant’s second cart toward the front exit. As defendant started to leave the store, the security guard identified himself and told her she needed to come to the office. She told him she was shopping, didn’t understand what was going on, and needed to take her medication. The security guard told defendant he watched her “shuffle through the different bags and rotate merchandise for an hour.” Defendant did not appear disoriented or distracted, and it looked like she knew what she was doing because she kept checking to see if anyone was watching. Defendant claimed she had paid for everything in her carts, but a comparison of her receipts with the contents of the shopping carts showed she did not purchase a number of items valued at $122.36. Defendant offered to pay for those items, and claimed she mistakenly placed them in her bags.

For the June 2003 incident at Safeway, defendant was charged with burglary and felony theft with a prior. She was also charged with misdemeanor petty theft with a prior, for the December 2001 incident at Foods, Etc.

Defendant testified on her own behalf. She admitted her conviction for shoplifting in 2001, but testified she did not commit the offense and pled guilty because she was pressured by her attorney to do so. With regard to the December 2001 incident at Foods, Etc., she testified she had enough money to buy the meat and did not intend to take it without paying for it. But she became confused and placed it in the top of another bag of groceries because her jacket was in the cart and she did not want it to get bloody. When she passed the check stand, she was distracted by her glucometer and her concern that Dial-a-Ride would not wait for her.^[2]

Defendant also explained that she visited Safeway several times on the day of the June 2003 incident, and needed two carts to hold all the items she wanted to buy. She was not trying to hide things, and had enough money to pay for all the items. When asked why she put items that weren’t paid for into bags with items that were already purchased, defendant responded: “Because my blood sugar had fallen greatly and I was terribly confused and I was looking for a checker to help me out.” Several of defendant’s friends testified that she had a reputation as an honest person.

Defendant was found not guilty of burglary, but was convicted on both petty theft charges. She was placed on probation for two years, and timely appealed.

DISCUSSION

Defendant argues the trial court erred when it excluded lay witness testimony that for years she had bouts of confusion and forgetfulness. We disagree.

Lay witnesses may generally give their opinions regarding a defendant’s state of mind affecting the formation of a specific intent. (People v. Webb (1956) 143 Cal.App.2d 402, 412; accord, People v. DeSantis (1992) 2 Cal.4th 1198, 1228; see also Evid. Code, § 800 [a lay witness may testify to an opinion if it is rationally based on the witness’s perception and is helpful to a clear understanding of his testimony].)^[3] But evidence that is otherwise admissible may be excluded in the discretion of the trial court “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.” (§ 352.)

Here the proposed testimony, to be offered by unidentified witnesses, was to the effect that on other unspecified past occasions defendant seemed confused or forgetful.^[4] The trial court found this evidence of questionable relevance to defendant’s state of mind at the times of the offenses.^[5] The trial court had “wide discretion to exclude evidence as substantially more prejudicial than probative. Its ruling therefore will be sustained on review unless it falls outside the bounds of reason. [Citation.]” (People v. DeSantis, supra, 2 Cal.4th at p. 1226.)

The court here did not exclude the evidence of defendant’s mental state solely on the basis that it was lay opinion. It also conducted a balancing analysis, as required by section 352, and concluded the probative value of the proffered evidence was substantially outweighed by the risk of undue prejudice or undue consumption of time. Defendant claims the trial court relied on an incorrect standard of law in concluding lay testimony would not be admissible without medical corroboration, but the record indicates the court separately ruled the evidence inadmissible under section 352. We therefore need not further consider whether the court erred in excluding the proposed testimony in the absence of expert medical opinion, although we note that the court did not base its ruling on People v. Moore (2002) 96 Cal.App.4th 1105.

The court also considered whether evidence of defendant’s forgetfulness might be admissible as a character trait under section 1102, but concluded “that would open the door for the prosecution to bring up evidence indicating that she actually did have the ability to form the required intent and so forth; and in particular and of concern to the defendant here would be the prior conviction for petty theft, which has been kept from the jury up to this point.”^[6] Under these circumstances, we cannot conclude that the court abused its discretion in excluding lay opinion testimony of defendant’s confusion and forgetfulness. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [no showing “ ‘the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice’ “]; People v. Mixon (1982) 129 Cal.App.3d 118, 127 [admission of lay opinion testimony is within the trial court’s discretion].)

Defendant testified that she was distracted and confused, and did not intend to steal the items in question.^[7] Several of defendant’s friends testified to her reputation for honesty, and did not believe she would have intentionally stolen anything.^[8] Defense counsel argued that defendant lacked the intent to steal, and her actions resulted from “mental confusion and absentmindedness caused by her age and various infirmities.”

Under the circumstances of this case, the court’s evidentiary rulings did not deny defendant the opportunity to present a defense. (See Rock v. Arkansas (1987) 483 U.S. 44, 55-56 [restrictions on the right to present a defense are constitutionally permissible if they “ ‘accommodate other legitimate interests in the criminal trial process’ “ and are not “arbitrary or disproportionate to the purposes they are designed to serve”]; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [“As a general matter, the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense’ “]; cf. People v. Reeder (1978) 82 Cal.App.3d 543, 553-554 [court erred when it excluded evidence of significant probative value to the defense on the grounds of potential prejudice to a codefendant].) A defendant does not have “a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be[,] so as to preclude the trial court from using . . . section 352.” (Id. at p. 553.)

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Parrilli, Acting P.J.

_________________________

Pollak, J.

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^[1] The assistant manager observed that defendant “did her shopping, she was chatting, she was laughing and just doing her grocery thing; but once we detained her, she became very upset.”

^[2] Defendant was approximately 60 years old at the time, and told store employees she was diabetic. A glucometer is a portable device used to measure blood glucose levels. (Stedman’s Medical Dict. (2d ed. 2004).)

^[3] Subsequent statutory references are to the Evidence Code.

^[4] Defense counsel stated his “desire to have certain witnesses testify as to their observations of the defendant over a number of years where they observed her to be mentally confused, in short being mentally confused, displaying memory lapses, displaying lack of awareness of his [sic] present surroundings, and so forth.”

^[5] In discussing whether the evidence should be admitted, the court stated: “Testimony by lay witnesses that on a particular occasion other than the date of this violation that’s charged she may have been absentminded or not as alert as others might be would have very little probative value as to what condition she was in on that particular date. On the other hand, if a physician were to say, I’ve examined her, I have observed a particular condition that would have those kinds of symptoms on other dates, then naturally the testimony would corroborate what the doctor had to say. And the doctor would then have to say, I find that it would be medically reasonable that she had that same condition on the date of the offense. And I think that way it would certainly be admissible. . . . As I understand it, there is no doctor or medical professional that would testify to those facts; is that correct?” Counsel responded: “The doctor we spoke to late yesterday afternoon indicated that based on his medical file and the diagnoses that were there, he could not presently in good faith, notwithstanding his affinity to Ms. Fields, testify. He said that a diagnos[i]s of Alzheimer’s would fit into that category but at this time there is no such diagnos[i]s.”

^[6] The jury ultimately learned of defendant’s prior conviction when defendant testified and defense witnesses were cross-examined as to their opinion of defendant’s honesty.

^[7] Store personnel confirmed that defendant told them of her diabetes and that she needed to check her blood sugar, and that she claimed not to understand what was going on.

^[8] Robert Stout explained: “It would be easy, at my age, to forget that I had something. I always worry about that when I’m in the store.” The court sustained the prosecutor’s objection to this statement as nonresponsive. Dana Elliott testified she herself had sometimes forgotten she put something in her cart, and unintentionally left the store without paying for it. “Technically, [Elliot said,] that’s shoplifting, but I didn’t intend to shoplift and I walked out with it.”