P. v. Hall

P. v. Hall

Filed 8/18/08 P. v. Hall CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

THE PEOPLE, Plaintiff and Respondent, v. LAMONT HALL, Defendant and Appellant.

C055432 (Super. Ct. No. 06F07424)

A jury convicted defendant Lamont Hall of grand theft (Pen. Code, 487, subd. (a); undesignated section references are to the Penal Code). The court found a prior prison term allegation

( 667.5, subd. (b)) to be true.

Sentenced to state prison, defendant appeals. He contends (1) the evidence on the value of the stolen computer was inadmissible hearsay and its admission violated his confrontation right, (2) the trial court failed to instruct the jury that the value of the stolen property had to exceed $400, (3) cumulative error requires reversal and (4) the trial court erroneously denied his motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We will affirm the judgment.

FACTS

Assets protection associate Josef Thevenot observed the following on a security camera from his office in the Wal-Mart store located on El Camino Avenue:

About 7:30 p.m. on August 24, 2006, defendant walked up to the last aisle of electronics with a shopping cart, removed a cutting device from its packaging and cut open a computer box. Defendant took the box containing the computer worth $646 off the shelf and put it in his cart. Defendant headed towards the elevator, leaving the cutting device and packaging on the shelf where the computer had been. Defendant held a bottle of glue in his hand and stuck a green return sticker on the computer box. Defendant left the glue on a shelf near the elevator, took the elevator to the first floor and pushed the cart towards the front door of the store. Thevenot then left his office to follow defendant.

Thevenot found defendant in line at the customer service desk where a customer makes a return. Defendant waited a couple of minutes, left the line and headed for the front door with his cart carrying the box with the computer. Thevenot went outside to wait for defendant to walk outside. A Wal-Mart greeter stopped defendant at the front entrance door and instructed him to walk through the exit door. Defendant left his cart carrying the box with the computer near the customer service desk and went towards the bathroom. A minute or so later, defendant returned and then started pushing his cart towards the rear exit of the store.

Thevenot went into the garden area as defendant reached the rear registers. Defendant did not pay for the computer at the registers. Thevenot went outside the rear exit as defendant entered the garden area. As several inches of defendants cart passed through the exit doors leading to the parking lot, Thevenot stepped in front of the cart and said, Wal-Mart assets protection. Defendant pulled the cart back into the store. Thevenot detained defendant. Deputy Sheriff Stephen Jakubiak arrived and searched defendant. The search revealed that defendant had no identification, money or receipts on his person.

The jury saw a VHS tape which was connected to the cameras but only monitored defendant up to the point of the front doors. A digital video which recorded 24 hours a day, seven days a week showed defendants cart go out the garden doors but the digital videotape apparently was not saved.

The defense called Wal-Mart asset coordinator Ruben Lerma who, as the custodian of records for security, testified that only one copy of the video surveillance tape had been made and it had been given to the prosecutor. In about 30 days, the video footage is routinely recorded over. Lerma was not present and had no knowledge of the August 24, 2006, incident.

DISCUSSION

I

To prove the value of the stolen computer, the prosecutor introduced Thevenots testimony and a receipt. Defendant contends the evidence of the value was inadmissible hearsay and the admission of such evidence violated his confrontation right under the federal constitution. The Attorney General responds that any error in admitting Thevenots testimony was harmless and any error in admitting the receipt has been forfeited by defense counsels failure to object. We conclude that the Attorney General has the better argument.

Background

During direct examination, the prosecutor asked Thevenot whether he asked a sales representative to run a price check on the computer[.] The court overruled defense counsels objection on relevance and hearsay grounds. Thevenot explained that he had a customer service manager ring up the computer because he did not have the code to do it himself. The prosecutor asked, Did you determine the value of the computer? Defense counsel objected on hearsay grounds and the court overruled the objection. Thevenot stated that he believed the value was over $600.

The prosecutor then showed Thevenot some exhibits for identification. Thevenot first identified the packaging for the cutting device defendant used to open the computer box. With no objection, Thevenot then identified a train[ing] receipt that was rung up for the computer. The prosecutor asked, Does that indicate the value of the computer? Thevenot responded affirmatively. The prosecutor asked what it was and Thevenot stated, $646. Defense counsel did not object. Thevenot thereafter identified the computer box with the green return sticker and some photographs displaying Wal-Marts interior, showing the registers, doors and garden area. When the prosecutor moved to introduce the exhibits, defense counsel objected on the ground of foundation.

On cross-examination, defense counsel asked whether the computer had a sensor. Thevenot did not believe so. Defense counsel queried, Okay. Its a $600 item, plus. What has sensors on it if not a $600 item? Thevenot explained that he did not have a listing, although most electronic merchandise did have sensors.

Deputy Sheriff Stephen Jakubiak responded to Wal-Marts call of a shoplifter. He found no receipt on defendant. Defense counsel asked whether the officer had collected any physical evidence at the scene and he responded, Only a receipt. Defense counsel clarified that it was receipt for a computer. On redirect, the prosecutor asked, [W]hat was the nature of that receipt? Defense counsel objected on the ground of speculation. The court overruled the objection. Officer Jakubiak stated that the receipt basically gives me the value of the item that was stolen. The prosecutor asked whether it was a receipt showing that the item had been purchased. The officer responded negatively. Defense counsels objection on the grounds of speculation and lack of personal knowledge was overruled. The officer stated that it was not a purchase receipt but instead a receipt just itemized, item that was taken.

After the officer testified, the prosecution moved its exhibits into evidence without any comment or objection by defense counsel.

In explaining the elements of grand theft in closing argument, the prosecutor stated, the property must be over $400[] [w]hich in this case I dont think is in dispute because we had testimony that the computer in question was a $600 - over $600 item.

In closing argument, defense counsel challenged the evidence showing that defendant was going out the door with the computer. Number one, I would like to point out the fact that there was no testimony that any sensor went off and there was no testimony that there was a reaching in the box to get the sensor out of the box. [] Now we heard that hygiene products, apparently perfume and such things like that, may have a sensor on it, but the only item probably in Wal-Mart that cost more than $400 did not have a sensor? I find that unreasonable. [] The sensor didnt go off because he didnt pass the last point of sale.

Analysis

A person commits grand theft when he or she steals personal property valued at more than $400. ( 487, subd. (a).) The reasonable and fair market value test applies to determine the value of the property. ( 484, subd. (a).) Case law more specifically provides that fair market value means the highest price agreed upon by a willing buyer and willing seller at the time and place of the theft. (See People v. Pena (1977) 68 Cal.App.3d 100, 103-104; CALCRIM. No. 1801.)

An owner of property is qualified to opine as to value of property he or she owns. (Evid. Code, 813; People v. More (1935) 10 Cal.App.2d 144, 145.) The weight to be given the owners testimony as to value is for the trier of the fact [citation]. (People v. Henderson (1965) 238 Cal.App.2d 566, 567.)

In general, judgment is not reversed based on the erroneous admission of evidence unless [t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion. (Evid. Code, 353, subd. (a).)

The trial court overruled defense counsels objection on relevance and hearsay grounds when the prosecutor asked Thevenot whether he had a sales representative run a price check on the computer. Thevenot explained that he had a customer service manager ring up the computer because he did not have the code to do it himself. The trial court overruled defense counsels objection on hearsay grounds when the prosecutor asked whether Thevenot had determined the value of the computer. Thevenot believed the value was over $600. With no objection, Thevenot later identified a training receipt that was rung up for the computer which reflected the value of the computer as $646.

Thevenot testified on behalf of the owner of the property and his opinion had sufficient foundation. Defendant has not shown that Thevenot, an assets protection associate for Wal-Mart, had not been designated or had no personal knowledge of the computer in order to testify about the value of the same. (Evid. Code, 702.)

Any error in admitting Thevenots testimony concerning the value of the computer was harmless in that the evidence of the receipt for the cost of the computer was admitted without objection. We disagree with defendants characterization of the record as reflecting an objection on hearsay grounds to the receipt. When the prosecutor initially sought to introduce all the exhibits, defense counsel objected on the ground of lack of foundation. Thevenot identified the receipt as reflecting the value of the computer; again, his opinion had sufficient foundation.

Defendants failure to make a specific and timely objection or motion to strike in the trial court to the evidence on the basis of his right of confrontation forfeits that issue on appeal. (People v. Burgener (2003) 29 Cal.4th 833, 869.)

II

The trial court instructed the jury on the elements of theft (CALCRIM No. 1800) but failed to instruct sua sponte that the value of the property taken must exceed $400 to constitute grand theft (CALCRIM. No. 1801).^[1] Defendant argues the error constitutes reversible error because there was no admissible evidence of the value of the computer. We disagree and conclude, as argued by the Attorney General, that the error is harmless under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] (Chapman).

The receipt reflects that the value of the computer was $646. The price charged is sufficient evidence of value unless there is evidence otherwise. (People v. Brown (1982) 138 Cal.App.3d 832, 835.) No contrary evidence was presented. Indeed, defense counsel was relying upon such value in arguing its defense that defendant never exited with the computer because a sensor never went off. The prosecutor argued that there appeared to be no dispute that the value of the computer exceeded $400. Plus, the verdict form shows the jury convicted defendant of taking property of value exceeding $400. Any instructional error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711].)

III

Defendant contends cumulative error requires reversal. We reject his claim. Defendant forfeited his claim concerning the receipt. Any error in admitting the hearsay testimony concerning value was harmless in view of the receipt. The instructional error was harmless. Defendants trial was fair and he received due process. It is not reasonably probable the jury would have rendered a more favorable verdict had the errors not occurred. (People v. Osband (1996) 13 Cal.4th 622, 688; People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)

IV

Finally, defendant contends that the trial court erroneously denied his Marsden motion. We find no abuse of discretion.

Background

After the jury rendered its verdict and prior to sentencing, defendant sought substitute counsel, arguing that defense counsel had failed to call a couple of witnesses, to conduct adequate discovery and to review prior counsels file. Defense counsel explained that she and her investigator had personally interviewed the witness defendant was talking about, a Wal-Mart greeter, who did not remember the incident since there are a few shoplifting incidents each month. The greeter disputed that she acted in the manner defendant claimed. Defendant had told defense counsel that the greeter had come to his defense. The greeter denied that she would have questioned securitys judgment. Defense counsel concluded that the greeters testimony would not have been in defendants best interest and would have possibly harmed his case. Defense counsel stated that the issue of the witness had already been hashed out at a Marsden hearing and at that time defendant had chosen not to represent himself. Defense counsel commented that defendant was complaining because he got convicted. Defendant responded that the greeter was not the only witness, claiming there were four or five people who were present, including a manager at the door.^[2]

Defendant then made his next complaint. He claimed that he had insisted since the beginning that there was a surveillance tape the defense should obtain, each time he was told that there was none and then one was produced at trial. Defendant stated that the tape he insisted existed was not the one presented at trial. Defense counsel explained that when she took over the case, the defense had asked for surveillance video, that she had sent a subpoena to Wal-Mart and that she and her investigator had personally talked to the people who ran the tapes and the only tape which existed was the one presented at trial. She claimed she had exhausted her resources to get all the surveillance, interviewed everybody, and no one was helpful. She stated that the tape they did receive showed the completed crime as soon as [defendant] put the sticker on the box, which he lied about in the probation report, and put it in the car[t]. Defense counsel referred to the probation report where defendant stated, There is no footage of me sticking a sticker on that box. She said, we all know that is a lie, we all know that is not true and that any other footage would be interesting but not controlling, in that defendants intent was formed when he cut the top with a saw blade, moved the computer off the shelf and put the return sticker on the box, looking kind of guilty, looking around, which they all saw. Defense counsel characterized defendants complaints as saying that it did not matter what was found because there may be a mystery witness who the defense did not find but may be helpful and commented: Im sorry. [Defendant] has had more than a zealous defense, he has had his fair trial, there is no new trial motion that I can make at this time, and now he is just complaining.

Defendant claimed that pretrial statements indicated that the manager had argued with the security guard over whether they should arrest defendant. Defense counsel responded that her investigation had not substantiated such claim.

Defendant finally claimed that he had asserted his speedy trial rights in view of the memory problems of the witnesses and never waived time. The court noted that the issue had been discussed previously and had satisfied itself at that time that there had been no speedy trial right violation. Defense counsel added that defendant had waived time. The court denied defendants substitution request.

Analysis

A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.] (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245 (Jones).) We review the trial courts decision denying defendants motion to substitute counsel under the deferential abuse of discretion standard. (Id. at p. 1245.) Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendants right to assistance of counsel. [Citations.] (People v. Hart (1999) 20 Cal.4th 546, 603.)

Defendant contends that the court erred in denying his motion in that there was obvious hostility between him and defense counsel, relying upon United States v. Adelzo-Gonzalez (9th Cir. 2001) 268 F.3d 772 (Adelzo-Gonzalez) which defendant claims is factually similar. He notes that the breakdown in the relationship was apparent at sentencing when defense counsel all but called [defendant] a liar again when defendant disputed statements in the probation report. He argues defense counsel made no real contribution and even missed the courts substantial custody credit miscalculation.

First, what was stated or done at sentencing was not before the court when it ruled earlier on defendants Marsden motion. Further, at sentencing, defense counsel did not call defendant a liar.^[3]

And second, defendants reliance upon Adelzo-Gonzalez is misplaced. Not only did the defendant and his attorney in that case not get along, his attorney had threatened and openly insulted the defendant and attempted to prevent the defendant from seeking substitute counsel. (Adelzo-Gonzalez, supra, 268 F.3d at pp. 777-778.) The record here reflects nothing of the sort. Although defendant and defense counsel had some disagreements as to trial tactics and strategy, an area controlled by trial counsel (People v. Welch (1999) 20 Cal.4th 701, 728), they were not embroiled in an irreconcilable conflict leading to ineffective assistance of counsel. We conclude the trial court did not abuse its discretion in denying defendants motion.

DISPOSITION

The judgment is affirmed.

SIMS , J.

We concur:

SCOTLAND, P.J.

ROBIE , J.

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^[1] CALCRIM No. 1801 provides:

If you conclude that the defendant committed a theft, you must decide whether the crime was grand theft or petty theft.

[The defendant committed grand theft if (he/she) stole property [or services] worth more than $400.]

[Theft of property from the person is grand theft, no matter how much the property is worth. Theft is from the person if the

property taken was in the clothing of, on the body of, or in a

container held or carried by, that person.]

[Theft of (an automobile/a firearm/a horse/

other item listed in statute>) is grand theft.]

[Theft of (fruit/nuts/

statute>) worth more than $100 is grand theft.]

[Theft of (fish/shellfish/aquacultural products/

other item listed in statute>) worth more than $100 is grand theft if

(it/they) (is/are) taken from a (commercial fishery/research

operation).]

[The value of avocados or citrus fruits may be established by

evidence proving that on the day of the theft, avocados or citrus fruits of the same variety and weight as those stolen had a wholesale value of more than $100.]

[The value of (property/services) is the fair (market value of the property/market wage for the services performed).]

[Fair market value is the highest price the property would

reasonably have been sold for in the open market at the time of,

and in the general location of, the theft.]

[Fair market value is the price a reasonable buyer and seller would

agree on if the buyer wanted to buy the property and the seller

wanted to sell it, but neither was under an urgent need to buy or sell.]

All other theft is petty theft.

The People have the burden of proving beyond a reasonable doubt

that the theft was grand theft rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of grand theft.

^[2] At trial, a Wal-Mart representative stated that the defense had subpoenaed the names of greeters working on August 24, 2006, and had been provided with the name, information and schedule of everyone who had punched the clock.

^[3] Defense counsel stated: I dont know if I am in the ethical position to add anything. Suffice it to say, I interviewed the woman who was with him, I had my investigator interview her, and we chose not to call her as a witness, and so I will just leave it at that.