P. v. Tabor

P. v. Tabor

Filed 10/22/08 P. v. Tabor CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD ALFRED TABOR, Defendant and Appellant.

H031334 (Santa Clara County Super. Ct. No. FF614643)

A jury convicted defendant of petty theft but deadlocked on a charge of burglary. (Pen. Code, 666, 459/460.)[1] Following a bifurcated bench trial on sentencing allegations, the court found that defendant had suffered a prior strike conviction and served a prior prison term. ( 667, subd. (b)-(i)/1170.12; 667.5, subd. (b).) The court also found that defendant had suffered a prior theft conviction for which he had served time in a penal institution, and on that basis deemed the petty theft a felony. ( 666.) At sentencing, the court imposed a 32-month state prison sentence. On appeal, defendant contends that the trial court committed prejudicial error and deprived him of his due process right to present a defense when it excluded exculpatory evidence. Finding no prejudicial error, we affirm.

STATEMENT OF FACTS

On February 16, 2006, Gerardo Larios was the assistant manager of the Ross Store in Morgan Hill. He was in the Mens Department when he saw defendant walk into the store. Defendant was wearing black pants, a gray sweat shirt and a red hat. Larios was sure that defendant did not have any bags in his hands when he entered the store. Larios became suspicious of defendant when defendant stayed for a long time more than 10 minutes in the Mens Department. After about 15 to 20 minutes, Larios saw that defendant had two full plastic bags on the floor next to him. Larios approached defendant and asked if he might put those two bags on hold for him in the Customer Service area. Defendant picked up the bags and gave them to Larios who took them to the Customer Service area. At the Customer Service area, he and another employee, Laura Tinajero, went through the bags. There was Ross merchandise with Ross tags in the bags. Larios could not tell from looking at the tags whether the merchandise clothing came from that particular Ross store.

Although Ross employed on-site security people to deal with shoplifting at the store, on that day no security personnel were present. Although store policy did not allow non-security employees to stop shoplifters, on this occasion Larios was trying just to prevent this until a certain point and thats all. Tinajero, the manager, made some decisions about the merchandise.

Laura Tinajero went through the bags. The bags contained clothing, mainly jeans, that had Ross tags on them. Tinajero took some of the higher priced stuff out of the bags because it belonged to Ross. She could not tell from looking at the tags whether the clothing in the bags came from that particular Ross store. All Ross tags look alike, and do not indicate the store of origin. That information is only listed on the receipt.

At some point, defendant came to the Customer Service counter for his bags and Larios gave the bags back to him (less the items removed by Tinajero). Then defendant walked out of the store without paying for anything.

Except for some jeans, Tinajero did not recall at trial what items she removed from the bags that day. And except for some clothing, she also could not remember what items she left in the bags, even after reviewing her statement in the police report. She did recall ringing up some items at the request of police and she did recognize a Ross receipt which listed the following items and their corresponding prices: (1) a short-sleeved crewneck two tone T-shirt, valued at $9.99; (2) an X vintage Adidas T-shirt, unvalued; and (3) a copper fleece crew sweat shirt, valued at $14.99. The total value of the items was $37.86. Her name was located at the bottom of the receipt. However, she did not remember ringing up this receipt.

Certain higher priced merchandise sold at Ross stores carries security tags. A security tag is a hard tag that beeps when a customer goes out the door with it and must be removed by a special tool that is only kept at the registers. Tinajero did not think that any of the items she removed from defendants bags carried security tags. The sweat shirt printed on the receipt might have had a security tag. An alarm is supposed to go off and, in her experience, always does go off if a security tag is on an item when the customer attempts to leave the store with it. She could not recall if the alarm went off on this particular occasion.

February is a time of high returns following the Christmas shopping season, and it is not unusual for someone to walk into a Ross store with clothes to return. Although customers are supposed to take their returns directly to the Customer Service counter and collect a ticket before they start shopping, there is no sign at the front door that tells them to do so.

Tinajero did not recall calling 911. Rosss policy is that employees can call the police if they feel threatened, but Tinajero could not remember if she felt threatened or if she called the police.

Morgan Hill Police Officer William Norman responded to the call of a possible shoplift in progress at the Ross store in Morgan Hill on February 16, 2006. He first contacted Larios and got his initial statement. Then he drove Larios to the location where the defendant was being detained and conducted a field lineup. Next, he drove Larios back to the store and took a more in-depth statement from him. After that, he contacted Tinajero and took a statement from her. She also showed him some articles of clothing that she had pulled out of a bag. These items were three shirts, two pairs of mens jeans and a brown leather belt. All of the items had tags; none of them had security tags.

Officer Norman memorialized Ms. Tinajeros statement to him in his police report and he read an edited version of Ms. Tinajeros statement from his police report to the jury, as follows: Witness 2 Tinajero walked to the register and located the two white plastic bags. Inside the bag she saw multiple items [of] clothing with Ross tags still attached to them. Witness 2 Tinajero said there is a store policy forbidding employees from detaining possible shoplifters. Witness 2 Tinajero then took the most expensive items out of the bag to include three shirts, two pairs of jeans, and a belt. Witness 2 Tinajero said there were several shirts still left or still in the bag. 1AR Tabor[2] returned to the register and retrieved his bags and left the store without paying for the merchandise. Witness 2 Tinajero then called the police for assistance. After obtaining the statements from the witnesses I asked Witness 2 Tinajero to provide me with a receipt of the stolen property. A total of $37.86 worth of merchandise was returned to Ross. The stolen property included one orange Nike sweat shirt, one short sleeved Adidas shirt, and a gray and beige short sleeved shirt.

The sweat shirt and two short sleeved shirts were in plastic bags. Officer Norman identified the receipt in court as the same receipt he asked Ms. Tinajero to ring up for him. After getting the receipt, he released the merchandise back to Ross.

Officer Norman also read from his police report the following statement by Larios: Several minutes later Larios observed AR1 Tabor with two white plastic bags in his hands.

Morgan Hill Police Officer David Ray also responded to a call from the Morgan Hill Ross store about a possible shoplift by a suspect wearing a red hat, a gray sweat shirt, black pants and white shoes. He saw a person matching this description walking from the shopping plaza where the Ross store is located. Defendant was carrying two plastic shopping bags. One bag had a blue design on it that Officer Ray did not recognize; the other had a red bulls eye that he recognized as a Target store bag.

As soon as the officer made a U-turn, defendant started walking back the way he had come and disappeared behind a shrub. Officer Ray saw defendant again as he was walking through the middle of a parking lot, now wearing white shorts and carrying only one bag. Defendant ran into a McDonalds restaurant just as Officer Rays car pulled up to the glass doors. Defendant dropped the bag on a nearby table and ran to the bathroom area. Officer Ray entered the store and stood by the bathroom door until Officer Norman arrived. Then he and Officer Norman looked into the bag. It contained a red cap, a gray sweat shirt, a pair of black pants and several items of clothing with Ross tags on them. Within a minute or two, Officers Ray and Norman went into the bathroom to contact defendant. A man at a urinal was asked to leave. The bathroom had two stalls. Defendant was in one of the stalls with the door closed; his feet were not showing. The officers knocked on the stall door and asked him to come out, which he did. There was no one else in the bathroom at that time.

DISCUSSION

Defendant contends that his constitutional right to due process was prejudicially compromised when the court erroneously excluded from Officer Normans recitation of Tinajeros statement to him that defendant returned to the store and complained that store personnel had stolen his property, before leaving the store a second time with his bags. He argues that this evidence was highly relevant to [his] sole theory of defense that he lacked the intent to steal and was admissible under Evidence Code section 356s rule of completeness. (Evid. Code, 356.) He further argues that the People forfeited any hearsay objection when they chose to introduce the balance of the statement; and that independent of section 356, the omitted part of the statement was admissible for the nonhearsay purpose of showing his noncriminal mental state.

For their part, the People argue they did not forfeit their hearsay objection, and that the omitted part of the statement was excludable as self-serving, inadmissible hearsay; that defendant forfeited his claim that the omitted part of the statement was admissible for the nonhearsay purpose of showing lack of criminal intent, by failing to make that argument to the trial court; that even if it was admissible under section 356, it was not relevant or necessary for an understanding of the already admitted part of the statement; and that the error, if any, did not deprive defendant of due process or prejudice him. For the reasons that follow, we find the court erred in excluding the statement, but also find that this state law error was harmless and did not violate defendants due process rights. We first set forth the relevant factual background and legal principles.

a. Factual Background

Because Ms. Tinajero had very little independent recollection of the events that occurred on February 16, 2006, Officer William Norman was permitted to read to the jury the first paragraph and parts of the second paragraph of the statement Ms. Tinajero gave him, as memorialized in his police report. The statement was admitted as a past recollection recorded, pursuant to Evidence Code section 1237.[3] However, the prosecutor did not want Officer Norman to read all of the second paragraph because theres statements the defendant makes [that] are hearsay that the People are not planning on introducing. Under Evidence Code section 356, defense counsel then moved to introduce the remainder of Ms. Tinajeros statement, in which she said that Tabor returned to the store and complained that he was missing clothing from his bags. Tabor blamed store personnel for stealing clothes from his bag. [Tinajero then called the police for assistance.]^[[4]] Tabor walked around the front of the store for several minutes then fled the store without paying the merchandise for a second time. The following discussion took place outside the presence of the jury:

[THE COURT]: Isnt that double hearsay? And what exception is there for the second level of hearsay, to wit, your clients statement?

[DEFENSE COUNSEL]: Well, its all hearsay. The question is, you know, what exception does if [sic] fall in. And the argument would be it falls in recollection of court this is what she said shes saying, for example

[THE COURT]: No, here we go. Just so we are on the same page so we dont get off track. What she tells the officer happened, observed, interacted is one layer of hearsay and theres a foundation for that to come in as past recollection recorded. To the extent her statement includes statements of your client, that is a second layer of hearsay. What exception is there for the second level of hearsay?

[DEFENSE COUNSEL]: Well, just sort of a fall back. She also said she calls the police for assistance, so that would qualify as not something my client said, thats something she did. So that should come in under 356 but Ill be bringing it out.

[THE COURT]: No, I understand. The only part Im struggling with is the statement of your client.

[DEFENSE COUNSEL]: I will be arguing that its not coming in for the truth of the matter asserted. Its coming in to explain her actions, why she calls the police for assistance. Because she just got finished testifying she only calls the police when she feels threatened and troubled. She doesnt remember whether she called the police or not. If she calls the police why does she call the police because

[THE COURT]: The whys arent relevant. The fact is. So you can establish that she called the police, that was based on a statement made by your client. You can bring out your client made a statement and she called the police. Its the contents of the statement thats hearsay.

[DEFENSE COUNSEL]: Very well, Your Honor. So then

[THE PROSECUTOR]: The only thing I would add to that, Your Honor, is that irrespective 1237 wouldnt cover the defendants statement because 1237 covers the situation where the witness honestly doesnt remember something and is asked about it and can not refresh her memory. She was not asked whether or not she remembered the defendant made a statement or not and that was never at issue, so 1237 isnt applicable to that particular portion of the statement. She was never asked.

[THE COURT]: Well, and I think what hes suggesting is the rule of completeness, but I dont think the statements of the defendant are within the rule of completeness.

[THE PROSECUTOR]: No, theyre not.

[THE COURT]: Well, I know you and I agree or thats your position and I agree. [] And I know you disagree. [] I just dont think its within the rule of completeness.

[DEFENSE COUNSEL]: Very well, Your Honor.

After this discussion, Officer Norman was recalled to the stand and testified to Ms. Tinajeros redacted statement, including her statement that after defendant left the store, she called the police for assistance. Later, Officer Norman was recalled to the stand, and defense counsel brought out that defendant returned to the store.

b. Relevant Legal Principles

Evidence Code section 356 provides: Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.

The purpose of [Evidence Code section 356] is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a partys oral admissions have been introduced in evidence, he [or she] may show other portions of the same interview or conversation, even if they are self-serving, which have some bearing upon, or connection with, the admission ... in evidence. (People v. Arias (1996) 13 Cal.4th 92, 156.)

In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. In the event a statement admitted in evidence constitutes part of a conversation ..., the opponent is entitled to have placed in evidence all that was said ... by or to the declarant in the course of such conversation ..., provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence.... (People v. Zapien (1993) 4 Cal.4th 929, 959 (Zapien).) We review a trial courts ruling on a hearsay objection for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 714, 725.)

DISCUSSION

Forfeiture

At the outset, we address each partys contention that the other has forfeited one or more claims. Defendant relies on People v. Parrish (2007) 152 Cal.App.4th 263 (Parrish) for the proposition that by seeking admission of a portion of Ms. Tinajeros statement to Officer Norman, the People have forfeited their hearsay objection to the omitted part of that same statement. In our view, Parrish presents an inapt analogy to this case. In Parrish, at trial, the defendant successfully introduced statements made by a confederate for the nonhearsay purpose of corroborating his testimony that he acted under duress. However, when the prosecutor sought to introduce other statements made by the confederate during the same interview that rebutted the duress defense, defense counsel argued that while the statements whose admission he proposed were admissible for a nonhearsay purpose, the statements whose admission was proposed by the prosecutor were inadmissible under Crawford v. Washington (2004) 541 U.S. 36. The trial court concluded that the defense could not have it both ways and admitted the statements on the basis of the rule of completeness codified in section 356. (Parrish, at p. 271, fn 4.)

On appeal, defendant renewed his challenge to the admission of the confederates statements on Crawford and due process grounds. Relying on Evidence Code section 356, the Attorney General countered that defendant had forfeited his appellate claim by introducing at trial other statements by the same confederate during the same interview. (Parrish, supra,152 Cal.App.4th at p. 269.) The appellate court stated: We agree with the People. (Ibid.) However, the court did not end its discussion there, as it would have been expected to do, if it had strictly found forfeiture. Instead, the court went on to explain in great detail its reasons for rejecting defendants Crawford challenge on the merits. Thus, we do not see Parrish as authority for refusing to consider the correctness of the Peoples hearsay objection.

The People argue that defendant has forfeited his right to claim on appeal that the trial court should have admitted defendants statement to Ms. Tinajero on the grounds that it was admissible for the nonhearsay purpose of showing defendants lack of criminal intent, because he did not specify that ground in his objection to the court. The Peoples point has some merit. While defense counsel did argue that the omitted part of Ms. Tinajeros statement was admissible for the nonhearsay purpose of rebutting the inference that Ms. Tinajero called the police because defendant threatened her, when the trial court dismissed this concern as irrelevant, counsel did not proffer another nonhearsay basis for admission.

We recognize that, ordinarily, a reviewing court lacks the discretion to review a claim that the trial court should have admitted or excluded evidence for a reason different from his trial objection. (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida); In re Sheena K. (2007) 40 Cal.4th 875, 887, fn.7; People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) However, in this case, we must, in any event, review defendants claim that the court erred in rejecting his objection on the stated ground, and we have the discretion to review his related claim, raised for the first time on appeal, that the asserted error in [excluding] the evidence over his Evidence Code section [356] objection had the additional legal consequence of violating due process. (Partida, supra, 37 Cal.4th at p. 435.) Furthermore, from our review of the record it appears that, given the courts stated position, any further objection by defense counsel based on any additional nonhearsay purpose was likely to have been futile. Thus, we will discuss the merits of defendants claim inasmuch as such discussion may eliminate any uncertainties that could lead to time-consuming but ultimately unavailing ineffective- assistance-of-counsel claims. (People v. Mitcham (1992) 1 Cal.4th 1027, 1045, fn. 5.)

Admissibility of Defendants Statements to Tinajero under Evidence Code Section 356

The issue in this case is whether statements otherwise admissible under section 356 are made inadmissible by the hearsay rule. As noted earlier, when one party puts into evidence one part of a conversation or statement, the balance of the conversation or statement is admissible under section 356, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence.... (Zapien, supra, 4 Cal.4th at p. 959, internal quotation marks omitted.) Section 356 is founded not on reliability but on fairness so that one party may not use selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [] [] In other words, reliability of the evidence is not a factor in determining admissibility under the rule of completenessindeed, the evidence proffered by the defendant and the prosecution may both be unreliable. (Parrish, supra, 152 Cal.App.4th at p. 273-274.) Section 356 applies when the balance of a conversation is necessary to make it understood. (People v. Johnson (1989) 47 Cal.3d 1194, 1237.)  Further, the jury is entitled to know the context in which the statements on direct [or cross-]examination were made. (People v. Harris (2005) 37 Cal.4th 310, 334-335.) In effect, Evidence Code section 356 operates as an exception to the hearsay rule. (See 1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2008) Admissions & Confessions,  3.4, 3.6, pp. 84, 85-86; see also People v. Williams (1975) 13 Cal.3d 559, 565 [suggesting that hearsay rules do not apply to statements admitted under section 356].)

Thus, for example, in People v. Harrison (2005) 35 Cal.4th 208 (Harrison), defendant complained that, on cross-examination of a police officer who testified for the defense, the prosecutor had elicited inadmissible hearsay about a confederates statements. Our Supreme Court rejected that claim, stating: [O]nce defendant had introduced a portion of Johnsons interview with Sergeant Voznik into evidence, the prosecution was entitled to introduce the remainder of Johnsons interview to place in context the isolated statements of Johnson related by Voznik on direct examination by the defense. [Citation.] The trial courts admission of Johnsons statements was therefore proper under California statutory law. (Id. at p. 239, citing Zapien, supra, 4 Cal.4th at p. 959.)

In Zapien, the defendant introduced statements made by a witness at a prior hearing concerning her multiple-hearsay testimony about her conversations with others. (Zapien, supra, 4 Cal.4th at p. 960.) This testimony contradicted her earlier testimony at trial and other statements she had made on prior occasions. The prosecutor then offered into evidence, and the court ruled admissible over defendants objections, the entire testimony given by the witness at the prior hearing, for the purpose of placing her allegedly inconsistent statements in their proper context. (Id. at p. 959.) Our Supreme Court held that the trial court had properly permitted introduction of the entire statement, even though the part of the witnesss statement that the prosecution wanted to introduce only had some bearing upon, or connection with the witnesss multiple-hearsay testimony. (Id. at p. 960.)

The rule is the same in civil cases. Thus, for example, in Carson v. Facilities Development Co. (1984) 36 Cal.3d 830 (Carson), a wrongful death suit arising out of a car accident, plaintiff was not permitted to testify to a hearsay statement he made to the officer investigating the subject collision. He argued on appeal that the trial court erred in sustaining the defendants objection of self-serving hearsay, over his claim that the statement was admissible under Evidence Code section 356. Our Supreme Court agreed, stating: Section 356 permits admission of the remainder of an otherwise inadmissible conversation where a part of the conversation has already been admitted. However, the hearsay objection will be overruled only if the remainder of the conversation is relevant to the portion already admitted, i.e., if it has some bearing upon, or connection with, the admission or declaration in evidence.... [Citations.] Because Carsons statement regarding the speed of Kurtzs car was relevant to his opinion that his wife didnt have enough time to make it, the statement was admissible under Evidence Code section 356. (Carson, at p. 850, fn. omitted.)

In this case, the trial court focused on the hearsay aspects of the defendants statements to Ms. Tinajero rather than on the question whether defendants statements had some bearing upon, or connection with, the part of Tinajeros statement already placed in evidence. Plainly, defendants statements did have some bearing upon, or connection with, the rest of Tinajeros statement. It explained why Tinajero called the police. This explanation was not irrelevant, for it dispelled the misleading inference that defendant must have threatened her. Furthermore, defendants statements clearly had some bearing upon, and connection to, the pants that Tinajero believed were stolen and had removed from defendants bags. Defendants statements corrected the misleading impression that defendant, by his inaction, implicitly admitted that the pants were not his property but Rosss. Thus, defendants statements were otherwise admissible under Evidence Code section 356, notwithstanding that they were hearsay. The trial court erred in excluding them.

Nevertheless, in our view this state law error did not have the effect of denying defendant due process because it did not render his trial fundamentally unfair. (Partida, supra, 37 Cal.4th at p. 435.) Inasmuch as nothing else in the trial suggested that defendant had threatened Tinajero, this was at best a subsidiary point that did not interfere with his right to due process. (People v. Cunningham (2001) 25 Cal.4th 926, 999.) In addition, the defense did bring out that defendant returned to the store a second time; thereby blunting the inference that defendant must have known the pants were stolen because he did not challenge the stores seizure of the pants. This evidence was used by defense counsel to support his argument that defendant would not have returned if he were guilty of stealing the jeans.

Moreover, defendant was not prevented from placing before the jury any evidence that he did not steal the jeans from Ross; the courts ruling only prevented him from presenting such evidence through his hearsay statement accusing Tinajero of stealing the jeans from him. While his accusatory statements may have been independently admissible for nonhearsay purposes, defendant has not shown that they would have been otherwise admissible for their truth, i.e., to prove that that Ross employees stole defendants property.

Finally, even if we assess the prejudicial impact of the courts error under the federal standard of reversal for error of constitutional magnitude, on this record we find beyond a reasonable doubt that the jury verdict would have been the same absent the error. (Harrison, supra, 35 Cal.4th at p. 239, citing Neder v. United States (1999) 527 U.S. 1, 7-10.) Defendants statements about the merchandise confiscated by Tinajero had no bearing on the merchandise that remained in defendants bags. Despite the lack of security tags on the clothing which, defense counsel argued, showed the merchandise was not stolen the testimony of Larios and Tinajero provided strong evidence that defendant did not bring previously-bought merchandise into the Ross store but rather took unbought Ross merchandise out of the store that day. This already strong inference was strengthened by defendants elaborate attempts hiding behind a shrub, changing clothes, dumping the bags in a restaurant and hiding in a bathroom stall to escape detection by the police. In our view, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

CONCLUSION

The part of Ms. Tinajeros statement to Officer Norman that related defendants statements to her was admissible under Evidence Code section 356, and the trial court erred in excluding it as hearsay. However, the error did not deprive defendant of due process, and in any event was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

McAdams, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

Duffy, J.

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[1] Unless otherwise indicated, all statutory references are to the Penal Code.

[2] 1AR means arrested party number one.

[3] Evidence Code section 1237 provides: (a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: [] (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness memory; [] (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness statement at the time it was made; [] (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and [] (4) Is offered after the writing is authenticated as an accurate record of the statement. [] (b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

[4] The bracketed sentence, without the emphasis on the word then, was admitted as part of the prosecutions request.