Filed 9/7/18 P. v. Powers CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Patricia Garcia and Stephanie Sontag, Judges. Affirmed.

Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

Defendant Randy A. Powers appeals from a judgment of conviction after a jury convicted him of robbery, based on his taking a pair of slippers out of a CVS store and behaving in a threatening manner toward an assistant manager in doing so.

On appeal, Powers contends that the trial court erred in allowing the prosecutor to rehabilitate the assistant manager by introducing, on redirect examination, portions of the assistant manager's testimony from the preliminary hearing that were consistent with the assistant manager's trial testimony. Powers asserts that these statements were not properly admissible under Evidence Code section 791, the provision on which the prosecutor and court relied in admitting them.

Powers also contends that the trial court abused its discretion in excluding the final portion of a body camera videotape of a responding officer talking with the assistant manager just after the incident. According to Powers, the court should not have excluded the final few lines, in which the officer asks the assistant manager whether he wants to press charges for an unknown misdemeanor offense,[1] or for the offense of assault with a deadly weapon. Powers contends that by mentioning the possibility of a felony offense, the officer provided the assistant manager with a motive to exaggerate his story, and that this is a possible explanation for why the assistant manager testified to additional facts at the preliminary hearing and at trial pertaining to Powers's alleged conduct that he had not mentioned during his initial conversation with the officer, as recorded on the body camera video.

Finally, Powers asserts that even if the errors he complains of are not independently prejudicial, the cumulative effect of these errors requires reversal.

We conclude that the trial court erred in determining that the assistant manager's preliminary hearing testimony was admissible under Evidence Code section 791. The preliminary hearing testimony does not meet the requirements of either subdivision of Evidence Code section 791, and thus, constitutes inadmissible hearsay. However, after careful review of the record, we further conclude that the trial court's error in permitting the prosecutor to rehabilitate the assistant manager on redirect examination with his preliminary hearing testimony was not prejudicial to Powers, in light of videotape evidence of Powers's conduct at the conclusion of the incident that effectively establishes his use of force or fear to accomplish the charged robbery.

We reject Powers's contention that the trial court abused its discretion in excluding, pursuant to Evidence Code section 352, the final portion of the officer's body camera videotape in which the officer references an unidentifiable misdemeanor and an offense different from the charged offense. Because we conclude that Powers has established only a single error on appeal, we reject Powers's argument that the cumulative effect of the asserted errors requires reversal. We therefore affirm the judgment of the trial court.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

1. The prosecution case

a. The assistant store manager's trial testimony

On July 8, 2016, Powers entered a CVS store in Imperial Beach. The assistant manager, H.M., approached Powers and asked him whether he needed assistance. Powers did not respond. According to H.M., Powers "just looked at me and he proceeded to walk away." H.M. followed Powers and again asked him whether he needed help, but Powers ignored H.M.

Shortly thereafter, when Powers was standing about four feet away from H.M., Powers grabbed a store mug and held it in the air "as if he was going to strike" H.M. with it. After that, H.M. continued to follow Powers in the store, but increased the distance between himself and Powers. According to H.M., Powers then stuffed a pair of slippers into his pants. H.M. lost sight of Powers for a moment. When he was able to see Powers again, Powers started to follow H.M. At that point, Powers "came charging" at H.M. "as if to threaten bodily harm." Powers "walked really fast towards [H.M.] with [the store] mug kind of like in a violent fashion." H.M. ran several aisles away from Powers as Powers chased him. H.M. was afraid.

Powers then walked out of the store with the slippers without paying for them. On his way out, Powers grabbed the mug, "pressed it down on the counter," and verbally threatened H.M. After exiting the store, Powers reentered the store. At some point, Powers said to H.M., " 'I'm going to fuck you up.' " H.M. could not recall whether Powers made that statement when he first walked out of the store or when he reentered the store.

After Powers had walked several yards away from the store, H.M. started to follow him. H.M. saw Powers sitting in front of an IHOP restaurant that shared the parking lot with CVS. Powers then walked across the street to a 99 Cents Store.

H.M. saw a police officer and flagged the officer down.

b. The testimony of one of the responding officers

On July 8, 2016, Officer Christian Quintana was driving by a 99 Cents Store when H.M. waved him down and requested assistance. H.M. told Officer Quintana that a man had threatened him with a mug at the CVS and provided the officer with a description of Powers. H.M. told the officer that he believed the man had gone into the 99 Cents Store.

H.M. also reported to the officer that he had witnessed the man walk out of the store, take off his shoes, and put on a pair of black slippers sold by CVS. H.M. did not remember the man having purchased the slippers.

Officer Quintana apprehended Powers in the 99 Cents Store. He noticed that Powers was wearing "brand new" slippers, which was in contrast to the rest of his clothing, and that the slippers had "a piece of plastic still attached to them, kind of the plastic that the tags are attached to." The officer confirmed with H.M. that the slippers were the ones sold by CVS.

Officer Quintana testified that there were at least two other law enforcement officers present at the scene. Quintana further testified that he was "interacting" with H.M. that day for anywhere between 30 minutes to 50 minutes. H.M. interacted with the other officers that day, as well.

Officer Quintana talked with H.M. and attempted to review security video from the store, but was unable to access the security footage that day. Later, Quintana turned on his body camera and said to H.M., " 'So tell me again what happened.' " H.M. then related to Officer Quintana what had occurred in the store.

2. The defense case

Powers testified in his own defense. He stated, "I believe all I did was walk around the store with a mug in my hand, and that man [H.M.] didn't want to get too close to me." He repeated that statement, or slight variations on that statement, multiple times during his testimony.

B. Procedural background

An information was filed against Powers, charging him with one count of robbery. (Pen. Code, § 211.)

During pretrial proceedings, a question regarding Powers's mental competency arose. The trial court ordered a competency evaluation and scheduled a competency hearing. The trial court ultimately found Powers competent to stand trial.

A jury trial began on January 12, 2017. On January 17, 2017, the jury found Powers guilty of robbery, as charged.

The trial court sentenced Powers to the mid-term of three years in prison for robbery, plus a consecutive year for violating probation in another case.

Powers filed a notice of appeal on July 24, 2017.

III.

DISCUSSION

A. H.M.'s testimony from the preliminary hearing was not admissible, but its erroneous admission does not require reversal

Powers contends that the trial court abused its discretion by allowing the prosecutor to rehabilitate H.M. with prior consistent statements that H.M. made while testifying at the preliminary examination. According to Powers, the hearsay statements were not admissible under the Evidence Code section on which the court relied—Evidence Code[2] section 791—because the preliminary hearing testimony was given after H.M. had made the inconsistent statements to the officer on the day of the crime that defense counsel had used to impeach his trial testimony. Powers focuses on subdivision (a) of section 791, because, he contends, that provision was the basis of the trial court's ruling. However, in response to the People's contention in its briefing on appeal that H.M.'s preliminary hearing testimony was admissible pursuant to subdivision (b) of section 791, Powers further contends that the preliminary hearing testimony was also not properly admissible under subdivision (b). According to Powers, the court's error prejudiced him because the rehabilitation "simply conferred a false sense of trustworthiness on [H.M.'s] testimony, leading the jury to view the prosecution's case as stronger than it actually was." Powers notes that the People relied on Powers's conduct, and his purported threat that he would "fuck [H.M.] up," which occurred after he took the slippers off the shelf and concealed them on his person, to establish the force or fear element of robbery. He argues that his attorney effectively impeached H.M.'s credibility on cross-examination by establishing that H.M. had not told the investigating officer about the allegedly threatening conduct or the purported threat during his initial interview. Powers further argues that this cross-examination undermined H.M.'s trial testimony regarding the purported threat, raising a reasonable doubt as to whether any verbal threat was actually made, which, in turn, could have led to the jury to conclude that Powers did not in fact use force or fear in taking the slippers from the store. He contends that the error in permitting the prosecution to rehabilitate H.M. with his preliminary hearing testimony, which was consistent with H.M.'s trial testimony, unfairly bolstered H.M.'s credibility in the eyes of the jury.

We conclude that the trial court abused its discretion in allowing the prosecutor to introduce H.M.'s preliminary hearing testimony to rehabilitate his trial testimony. However, we further conclude that the error was harmless under the standard of prejudice review applicable to state law evidentiary error. The video evidence of Powers's conduct in returning to the store and making a threatening gesture effectively established the use of force or fear such that even if the jury had not believed H.M.'s testimony that Powers verbally threatened him, it is not reasonably probable that the jury would have found that Powers did not physically threaten H.M. It is thus not reasonably probable that the jury would have reached a more favorable verdict on the robbery charge if the preliminary hearing testimony had not been admitted.

1. Additional background

During cross-examination, defense counsel relied on video taken by Officer Quintana's body camera to attempt to impeach H.M.s credibility. Defense counsel implied that H.M. was embellishing his story during his testimony at trial because his testimony differed in important respects from what H.M. stated on video footage from Quintana's body camera. For example, on direct examination, H.M. testified that he initially approached Powers and offered assistance because that is what he routinely does with customers. On cross-examination, defense counsel showed that on the body camera video, H.M. told the officer that he approached Powers because other employees had alerted him to Powers's presence in the store. The defense also pointed out that in the video footage, H.M. did not tell the officer that Powers had said that he was going to "fuck [H.M.] up," failed to tell the officer that he had observed Powers put the slippers in his pants, and did not mention that Powers had chased him across multiple aisles while wielding the mug.

The court and counsel apparently engaged in an unreported sidebar conversation regarding the admissibility of H.M.'s preliminary hearing testimony as prior consistent statements to be used for rehabilitation purposes.

On redirect, the prosecutor elicited the fact that the video played by defense counsel was approximately one to two minutes long, and that H.M.'s interaction with law enforcement was significantly longer than one to two minutes. To rehabilitate H.M., the People confirmed that H.M. had testified at a prior court hearing to the effect that he had approached Powers to offer assistance, that Powers had threatened to bash his head with the mug, and that he had seen Powers "pocket" the slippers.

At trial, H.M. also stated that although he had not told the officer that Powers had said that he was going to "fuck [H.M.] up" on video, H.M. believed that he had provided that information to the officer during an unrecorded conversation.[3] According to H.M., he had three conversations with law enforcement officers on the day of the crime, one when he flagged an officer down, the second on the video, and the third later at the CVS store.

After H.M. testified, defense counsel placed on the record an earlier objection that she had originally made during an unreported sidebar conference. Defense counsel stated that she believed that H.M.'s preliminary examination testimony was not admissible as a prior consistent statement under Evidence Code section 791 because the preliminary examination testimony occurred after H.M. made his statements to the police, which were the statements that were arguably inconsistent with his trial testimony. The People argued that the rehabilitation was proper because the preliminary examination testimony was given before the trial testimony at issue. The trial court stated that it had originally overruled the defense objection, and reiterated its conclusion that the prior consistent statement was made "prior to today's [trial] testimony" and the court "believe[d] that under the Evidence Code it is allowed."

2. Analysis

Although we review a trial court's decision regarding the admissibility of a statement under a particular provision of the Evidence Code for abuse of discretion, we review de novo the question whether a trial court correctly construed the Evidence Code provision, because that is a question of law. (See People v. Grimes (2016) 1 Cal.5th 698, pp. 711–712.)

Section 791, on which the trial court relied in overruling defense counsel's objection to the admission of H.M.'s preliminary hearing testimony, provides:

"Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:

"(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or

"(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."

The trial court misconstrued section 791 and as a result, erred in concluding that H.M.'s preliminary hearing testimony was admissible pursuant to section 791.

The People concede that H.M.'s preliminary hearing testimony was not admissible pursuant to subdivision (a) of the section. We agree. It is clear that H.M.'s preliminary hearing testimony was not "made before the alleged inconsistent statement" that was offered. The inconsistent statement was H.M.'s video recorded statement to the officer, made on the day of the incident; H.M. testified at the preliminary hearing after the day of the incident.

The People argue, however, that the preliminary hearing testimony was admissible pursuant to subdivision (b). Specifically, the People contend that "subdivision (b) applies because the defense in trying to impeach [H.M.] implied that he lied to law enforcement by not telling the officer that he initially approached appellant to offer assistance because that was what he routinely did with customers, that he lied to the officer by not saying that appellant threatened to 'fuck him up,' and that he lied by not telling the officer that he saw appellant steal the slippers." In making this argument, the People misconstrue the implication of Powers's contentions regarding H.M.'s statements to the officer. The defense was not implying that Powers lied to the officer; rather, the defense was implying that what H.M. told the officer was closer to the truth about what had happened, and that H.M. began embellishing his story only after having spoken with the officer. It appears that the defense was suggesting that H.M. had a motive to exaggerate and fabricate certain elements in order to ensure that Powers would be convicted of a felony rather than a misdemeanor offense.

Subdivision (b) of section 791 requires that the purported consistent statement have been made "before the bias, motive for fabrication, or other improper motive is alleged to have arisen." The defense was contending that H.M.'s improper motive arose after his initial statements to police on the day of the incident, but before the preliminary hearing. H.M.'s preliminary hearing testimony thus occurred after this improper motive was alleged to have arisen. As such, the preliminary hearing testimony was not admissible under section 791, subdivision (b), either. The court therefore necessarily abused its discretion in allowing the prosecutor to rehabilitate H.M. with these statements, given that they were inadmissible hearsay and the prosecutor identified no hearsay exception that would render them admissible.

We therefore assess whether the error was prejudicial pursuant to the state law standard for evidentiary error announced in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See, e.g., People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103 [evidentiary error is generally evaluated under the stated standard of prejudice review].) Under Watson, an evidentiary error requires reversal only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (Watson, supra, at p. 836.) Even under this standard, we believe that this is a close case.

"Robbery is 'the felonious taking of personal property in the possession of another . . . and against [the person's] will, accomplished by means of force or fear.' (§ 211.) If a defendant does not harbor the intent to take another's property at the time the force or fear is applied, the taking is a theft, not a robbery." (People v. Harris (2013) 57 Cal.4th 804, 851.) In the absence of the use of force or fear to accomplish an unlawful taking, a defendant would be guilty only of a theft. (People v. Bradford (1997) 14 Cal.4th 1005, 1055 [" 'Theft is a lesser included offense of robbery, which includes the additional element of force or fear' "].)

Any fear or force that Powers may have used against H.M. before he formed an intent to take the slippers would be insufficient to support a conviction for robbery. The People thus chose to focus on Powers's conduct at the conclusion of the incident during closing arguments to prove the force or fear element of robbery, telling the jury: "So what does Mr. Powers do to elevate this [taking] to a robbery? Well, he stops and he looks back at [H.M.] and he locks eyes with him and he starts coming back at him. And I ask you, ladies and gentlemen, look at the posture. Look at the clenched fists on the video. Look at the demeanor. Look at the face. And he starts approaching this CVS manager, and now he's raising his arms, and he tells him, 'I will fuck you up.' "

With this in mind, we consider the court's error in the context of the entire trial and all of the evidence. On the one hand, H.M., the sole witness to the pertinent events to testify for the prosecution, omitted significant facts of the incident when speaking with a police officer immediately after the incident took place. Specifically, he failed to mention that Powers had returned to the store, made a threatening gesture, and said he was going to "fuck [H.M.] up." It is in this context that the prosecutor was permitted to rehabilitate H.M. with his inadmissible preliminary hearing testimony, after defense counsel pointed out on cross-examination that H.M. had not mentioned on the video recording that Powers had returned to the store after initially leaving, made a threatening gesture and stated that he was going to "fuck [H.M.] up." Later, in closing argument, the prosecutor specifically focused on Powers's conduct in coming back into the store with clenched fists and making this comment, in support of a finding that Powers had used force or fear in taking the slippers and was thus guilty of robbery. To the extent that the rehabilitation of H.M. with his preliminary hearing testimony was successful, it could have persuaded the jury that Powers had in fact made such a verbal threat.

However, after reviewing the entire record, and after viewing the videotape evidence from the store's security cameras, we ultimately conclude that even if H.M.'s preliminary hearing testimony had been excluded, there is no reasonable probability that the jury would have reached a more favorable verdict. In particular, the video evidence of Powers leaving the store, and then coming back inside and gesturing aggressively, with his hands balled into fists and an angry, threatening look on his face, provides convincing evidence that Powers used force or fear to retain the slippers that he had taken from the store. The silent video, on its own, constitutes compelling evidence that Powers behaved aggressively and menacingly as he completed his departure from the store with the stolen slippers. Thus, even if the jury had disbelieved H.M.'s testimony that Powers had threatened to "fuck [H.M.] up," the jury nevertheless saw, on video, Powers's intimidating body language and behavior in that moment.

We do not find persuasive Powers's contention that, absent the rehabilitative evidence, the jury would have been more likely to have believed the defense's theory that "if [Powers] caused fear when he returned to the store, his use of [fear] was not motivated by an intent to deprive [H.M.] of the slippers but rather by his anger over having been followed throughout the store because of his appearance." This is entirely speculative; defense counsel did not even argue such a theory at trial.

In light of the evidence of Powers's threatening conduct at the conclusion of the incident, it is not reasonably probable that the jury would have returned a verdict more favorable to Powers if the prosecutor had not been permitted to rehabilitate H.M. with his preliminary hearing testimony.

B. The trial court did not abuse its discretion in excluding a portion of Officer's Quintana's body camera video in which the officer asked H.M. whether he wanted to press certain charges

Powers contends that the trial court abused its discretion in sustaining the prosecutor's objection to the concluding portion of the video, in which Officer Quintana appears to ask H.M., " 'And like I had mentioned to you earlier, the misdemeanor' [unintelligible word] 'presence, do you want to go ahead and press charges for the assault for [sic] the deadly weapon?' "[4] According to Powers, the trial court's ruling prevented the jury from hearing that H.M. was told that Powers could be charged with a misdemeanor or a felony, and that this knowledge may have given H.M. a motive to "embellish and conform the nature and timing of Powers's use of fear to the greater crime."

1. Additional background

As we have already discussed, defense counsel sought to introduce the body camera video that Officer Quintana took of H.M., in order to demonstrate that H.M. had not told the officer some of the details of the crime that he testified to at trial. In response, the prosecutor objected to the admission of a portion of the video in which Officer Quintana mentioned to H.M. possible charges that he could press against Powers, arguing that this portion was "irrelevant to the current action and would only serve to confuse or be prejudicial to the jury." The prosecutor registered an objection to the playing of any portion of the video, arguing that it constituted "improper impeachment."

Defense counsel argued that there were inconsistencies between H.M.'s statements on the video and what he had testified to at trial, demonstrating that the video could be used as impeachment. The court indicated that it planned to allow defense counsel to play the video tape for the jury, but without the final portion of the video, where Quintana referred to possible charges.

Defense counsel argued that the final portion of the video could help explain "[w]hy he is [H.M.] saying the things that he says. Why there are some differences between what he said. And if he knows that the things that he is saying could represent a misdemeanor or a felony because he was already told that in a previous conversation, that goes to an apparent bias or apparent prejudice. And that is one of the requirements that the jury needs to consider in order to determine his credibility. I think excluding it and not leaving it ripe for questioning or redirect or anything of that sort would be a possible error." The court asked for clarification of defense counsel's argument. Defense counsel argued that "[f]or [someone] to put [the possibility of a misdemeanor or felony charge] into a witness's mind could lead them to change what they are saying or embellish on the facts that they are saying. I think that it is relevant to [H.M.'s] bias, to his potential prejudice, maybe to explain why there is a difference between what he is saying now, what he has said at the prelim, and what he said to the officer."

The court responded that the statement by the officer was not a prior inconsistent statement made by H.M. Defense counsel argued that she was not offering it as prior inconsistent statement, but rather, to establish the charges that had been discussed with the witness.

The trial court ultimately ruled that it would exclude the final statement made by Officer Quintana to H.M. regarding the possibility of pressing charges. The court determined that it would be "conjecture" as to what Officer Quintana meant, particularly given that some of what Quintana said was unintelligible, and that the probative value of the last two lines of the video was outweighed by the confusion and misleading effect on the jury that portion of the video was likely to create. The court also told defense counsel, "If anything, I think this might be prejudicial to your client. He wasn't charged [with] assault with a deadly weapon. So I am not allowing this portion."

Later, after defense counsel again objected to the exclusion of this portion of the video, the court clarified that although it was excluding the last two lines of the video for the reasons the court had stated earlier, defense counsel could explore the matter "in a more direct way" by "question[ing] the officer." However, defense counsel did not question the officer regarding this subject.

2. Analysis

"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) We review the trial court's rulings on the admissibility of evidence under the deferential abuse of discretion standard. (People v. Lucas (2014) 60 Cal.4th 153, 268, disapproved of on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19; People v. Doolin (2009) 45 Cal.4th 390, 437.)

The trial court allowed the defense to utilize the video, but excluded a short portion of video after weighing the relative probative value of that particular portion against the potential for it to confuse, mislead, or prejudice the jury. This did not constitute an abuse of discretion.

As the trial court noted, a portion of the audio from the body camera recording was unintelligible and could lead the jury to speculate as to what the officer had said. Further, Officer Quintana's reference to offenses for which Powers was not on trial—in particular, the reference to assault with a deadly weapon—could have confused the jury and led the jurors to infer that Powers might have been charged with this offense, which could have been prejudicial to Powers. The officer's thoughts about what charges Powers could face were irrelevant to the jury's determination of Powers's guilt as to the offense with which he was charged.

The defense theory that the excluded portion of the video would serve to undermine H.M.'s credibility is speculative, in that it is not clear from what the officer said that H.M. would have understood that he may have to embellish the facts that he provided to the officer or alter his story at a later time in order to ensure that Powers would be convicted of a felony offense as opposed a misdemeanor. Further, even if H.M. had taken from the officer's statement the idea that he would have to alter or embellish his prior statement with additional "facts," it is purely speculative to think that he would have understood precisely how to embellish his story in order to make a stronger case for robbery, particularly given that the officer mentioned assault with a deadly weapon, not robbery.

In addition, the trial court's ruling did not preclude the defense from raising this issue through examination of Officer Quintana. Thus, the defense was not entirely precluded from attempting to make its point that something Officer Quintana had said to H.M. may have provided him with a motive to fabricate or embellish regarding the incident. However, defense counsel did not pursue the issue.

Under these circumstances, we see no abuse of discretion in the trial court's decision to exclude from the jury's consideration the brief final portion of Officer Quintana's body camera video in which Quintana referenced certain offenses that he believed Powers could be charged with. The court's assessment that the probative value of such evidence was outweighed by its potential prejudice to the defendant and the possibility of confusing the jury was reasonable.

C. There is no cumulative error

Powers contends that the cumulative effect of the errors that he alleges requires reversal. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) We have concluded that only one of Powers's asserted claims of error has merit, and we have determined with respect to that claim that reversal is not warranted. Because we have concluded that there are no additional errors, there is no cumulative error that would require reversal of the judgment.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.