People v. Mayer CA2/5

Filed 11/9/15 P. v. Mayer CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B254286
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA086796)
v.
LAURA LYNNE MAYER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Michael Villalobos, Judge. Affirmed.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General,
for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Laura Lynne Mayer (defendant) was convicted of
commercial burglary (Pen. Code, § 4591) and forgery (§ 470, subd. (d)). On appeal,
defendant contends that the trial court erred in admitting evidence over her objections for
lack of foundation and chain of custody; the trial court erred when it failed to instruct the
jury that to convict defendant of forgery it had to find she committed forgery in a
particular store; the verdicts were irregular; there was prosecutorial misconduct; and her
convictions must be reduced to misdemeanors. We affirm the judgment.
BACKGROUND
A. Factual Background
1. Prosecution Evidence
a) The Charged Offenses
On October 28, 2011, Gina Scott was working as a manager at an Albertsons’
store located in the City of Arcadia. Defendant approached Scott at the customer service
desk. On three to four prior occasions, Scott had seen defendant in the store attempting
to return merchandise. On this occasion, defendant sought to return vitamins for a
refund. Defendant handed a receipt to Scott which indicated that the vitamins had been
purchased at an Albertsons’ store located in Tujunga. Scott called Mary Grady, the loss
prevention officer, for assistance.
Grady approached the customer service desk and examined the purchase receipt.
She testified that defendant was the person seeking the refund. Grady told defendant that
1
All statutory citations are to the Penal Code unless otherwise noted.
2
she would be right back, and she took the purchase receipt2 into her office while Scott
remained with defendant. Grady entered the transaction information from the purchase
receipt into the Albertsons’ computer system in an attempt to find the transaction.
According to the information in the computer system, no vitamins were sold during the
transaction listed on the receipt. The receipt appeared on its face to be authentic, but
based on entering the transaction information from the receipt into the Albertsons’
computer system, Grady did not believe it was an accurate record of the transaction.
After Grady had been in her office for about 10 to 20 minutes, she returned to the
customer service desk and found that defendant was no longer there.
Scott testified that defendant became “antsy” while waiting for her refund, and
Scott went to Grady’s office “to see what was taking [Grady] so long.”3 When Scott
returned to the customer service desk, defendant had left with the vitamins. Still
photographs obtained from the store’s surveillance video cameras were introduced into
evidence at trial, and Scott testified that they depicted her and defendant at the service
desk.
b) The Uncharged Incidents
The prosecutor introduced evidence of similar “prior uncharged crimes” pursuant
to Evidence Code section 1101.
i) Glendora
On October 28, 2011, Kenneth Benjamin was working as a lobby supervisor at an
Albertsons store located in the City of Glendora. Defendant had two bottles of vitamins
in her possession and approached Benjamin at the customer service counter. Defendant
gave Benjamin a purchase receipt and asked him to give her a refund for the vitamins.
Benjamin generated a return receipt, and defendant signed it. Benjamin stapled together
2
Scott testified that Grady wrote down relevant information from the receipt and
Scott maintained possession of the receipt.
3
Scott testified that she took the receipt to Grady’s office.
3
the receipt for the purchase of the vitamins and the return receipt, placed the receipts in a
drawer, and gave defendant a cash refund. Benjamin explained that thereafter the
purchase receipt would typically go to “the office,” and it eventually would be transferred
to the corporate office.
The purchase receipt purportedly given to Benjamin by defendant was marked as
Exhibit 6. At trial, Benjamin was unable to recognize Exhibit 6, but he stated that it
appeared to be a valid Albertsons’ receipt from the store in Tujunga.
Kimberly Sempson, an Albertsons loss prevention employee, testified that she
investigated an incident involving the return of vitamins at the store located in Glendora.
Sempson identified Exhibit 6 as being the purchase receipt presented in connection with a
refund of vitamins at the store.
Sempson entered the transaction information listed on the purchase receipt into the
store’s computer system. The information in the computer did not match the transaction
information listed on the receipt. Sempson therefore believed that the purchase receipt
marked as Exhibit 6 was not authentic. A video recording depicting the transaction at the
Glendora store matching the time on the return receipt was played for the jury.
ii) Whittier
On November 10, 2011, Christopher Holloway was working at an Albertsons store
located in the City of Whittier, when a woman approached him and asked to return two
bottles of vitamins, each valued at approximately $30. The woman handed Holloway a
receipt for the purchase of the vitamins. Holloway verified that the products were listed
on the receipt, and gave the woman a refund. Holloway testified that he was unable to
identify defendant as the woman who returned the vitamins. Holloway placed the
receipt in the register, and believed that thereafter the receipt would be transferred to the
store’s bookkeeper.
The receipt purportedly given to Holloway by defendant was marked as Exhibit 7.
Holloway testified that he was unable to recognize the receipt that was marked as Exhibit
7, but he stated that it looked like a valid receipt.
4
Sempson, the Albertsons loss prevention employee, testified that she investigated
the incident at the Albertsons’ store located in Whittier, and identified Exhibit 7 as a
receipt presented for a refund at that store. Sempson entered the transaction information
listed on the purchase receipt into the store’s computer system, but was unsuccessful in
locating the transaction. Sempson therefore believed that the purchase receipt marked as
Exhibit 7 was not authentic. A video recording depicting the transaction at the Whittier
store matching the time on the return receipt was played for the jury.
iii) Temecula
On November 21, 2011, Carl Bonomo was working as a loss prevention specialist
at an Albertsons store located in the City of Temecula. Defendant approached Bonomo
at the customer service desk, said she wanted to return two bottles of vitamins that she
had purchased from the Tujunga store, and gave the vitamins and a purchase receipt to
Bonomo. Bonomo was suspicious of defendant’s attempt to return the vitamins because
earlier he had received a “Be on the Lookout” or “BOLO” report about a person
attempting to return vitamins by presenting a fraudulent receipt. Defendant told him that
she was returning the vitamins because her doctor said “it would counteract a
prescription” she used. Bonomo recalled that these “exact words” were stated in the
BOLO report.
Bonomo kept the vitamins and receipt, gave defendant a written trespass warning,
and stated that she could be arrested for trespassing if she entered into “another
Albertsons’s building.” Bonomo identified Exhibit 8 as a photocopy of the purchase
receipt that defendant presented to him, and testified that he believed the receipt was not
legitimate because the logo depicted on the receipt did not appear in the proper position.
He identified defendant at trial as the person who attempted to return the vitamins.
Sempson testified that she investigated the incident, entered the transaction
information listed on Exhibit 8 into the store’s computer system, and was unsuccessful in
locating the transaction. Sempson therefore believed that the receipt marked as Exhibit 8
was not authentic.
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2. Defendant’s Evidence
Defendant testified on her own behalf. She said that she purchased vitamins on
many occasions; sometimes she bought them for personal use, and sometimes she put
them in gift baskets to thank her business customers. She would return the vitamins if
she had more than she needed. Defendant denied being in the Albertsons store in Arcadia
on October 28, 2011.
Defendant also denied going to Albertsons stores in West Covina and San Dimas
on October 28, 2011. When defendant was shown Exhibit 14, photographs from the
security videos at the West Covina and San Dimas stores depicting refund transactions on
October 28, 2011, she stated that the person in the photographs “looks like” her, but she
was unsure whether she as the person depicted therein because the photographs were
“grainy.”
Defendant also denied being in Glendora on October 28, 2011, and denied going
to an Albertsons store in Glendora on that date. Defendant admitted that the video
recording from the Glendora Albertsons showed a person who looked like her, but she
believes that the recording had been “doctored.”
Defendant testified that she did not recall, but it is possible that she went to
Albertsons in Whittier on November 10, 2011, and returned vitamins. If she went to the
Whittier store then, she did not conduct a fraudulent transaction. Defendant said it was
possible she was the person depicted in the video recording from the Albertsons’ store in
Whittier, but that the video recording was too “dark and grainy” for her to be certain of it.
Defendant conceded that she attempted to return vitamins at an Albertsons’ store
in Temecula on November 21, 2011. Defendant did not recognize Bonomo as the person
to whom she presented the vitamins and receipt to obtain a refund. Defendant was denied
the refund and was issued a trespass warning.
3. Rebuttal and Surrebuttal Evidence
The jury was shown photographs (Exhibit 14), which Sempson testified were from
the October 28, 2011, security videos at the Albertsons’ stores located in the cities of
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West Covina and San Dimas, depicting refund transactions.4 San Diego County Deputy
Sheriff William Kerr searched defendant’s residence, and found a computer, a printer, a
USB flash drive, several packages of unopened vitamins, a roll of receipt tape, and
printed and unprinted receipts. The receipts contained various store logos, including one
for Albertsons. The flash drive contained a program and data that appeared to allow one
to “drop and drag” transaction numbers, store numbers, cashier numbers, and item
numbers to create a receipt.
Defendant testified that the flash drive found by Deputy Kerr contained her
graphic design work. It was her practice to scan receipts for purchases and maintain them
on her computer, and she would reprint stored receipts when needed.
B. Procedural Background
The District Attorney of Los Angeles County filed an information charging
defendant with second degree commercial burglary in violation of section 459 (count 1)
and forgery in violation of section 470, subdivision (d) (count 2). Following a trial, the
jury found defendant guilty on both counts.
The trial court suspended imposition of sentence and defendant was placed on
probation for a period of three years on the condition that she serves 180 days in county
jail. The trial court awarded defendant custody credit, and ordered her to pay various
fees, fines, and penalties. Defendant filed a timely notice of appeal.
4
The prosecution later argued to the jury that defendant was the person depicted in
these photographs. As noted, the Exhibit 14 was previously shown to defendant who
testified that she was unsure whether she was the person depicted in it. It does not appear
that the West Covina and San Dimas events were uncharged offenses, and no objection to
the evidence was made on that basis. Evidence of the events at these stores was not
presented during the prosecutor’s case-in-chief.
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DISCUSSION
A. Admission of Evidence
Defendant contends that the trial court erred, and denied defendant her state and
federal due process rights, in admitting into evidence the receipt and video exhibits
concerning the Glendora and Whittier incidents over defendant’s objections for lack of
foundation and chain of custody. We disagree.
1. Standard of Review
A “trial court is ‘vested with broad discretion in ruling on the admissibility of
evidence.’ [Citation.] ‘[T]he court’s ruling will be upset only if there is a clear showing
of an abuse of discretion.’ [Citation.]” (Tudor Ranches, Inc. v. State Comp. Ins. Fund
(1998) 65 Cal.App.4th 1422, 1431.) The admission of “uncharged conduct” evidence
under Evidence Code section 1101, subsection (b) is reviewed for abuse of discretion.
(People v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on other grounds in People v.
Doolin (2009) 45 Cal.4th 390, 421, & fn. 22.)
2. Applicable Law
Evidence Code section 403 states, “The proponent of the proffered evidence has
the burden of producing evidence as to the existence of the preliminary fact, and the
proffered evidence is inadmissible unless the court finds that there is evidence sufficient
to sustain a finding of the existence of the preliminary fact, when: [¶] (1) The relevance
of the proffered evidence depends on the existence of the preliminary fact . . . .” (Evid.
Code, § 400.) “Relevant evidence” is evidence that has “any tendency in reason to prove
or disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.)
The foundation may be laid for physical evidence by establishing chain of
custody. To establish a chain of custody, “the proponent of the evidence must
demonstrate to the satisfaction of the trial court ‘“‘that, taking all the circumstances into
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account including the ease or difficulty with which the particular evidence could have
been altered, it is reasonably certain that there was no alteration.’”’” (People v.
Richardson (2008) 43 Cal.4th 959, 1003.) “‘“The requirement of reasonable certainty is
not met when some vital link in the chain of possession is not accounted for, because then
it is as likely as not that the evidence analyzed was not the evidence originally received.
Left to such speculation the court must exclude the evidence. [Citations.] Conversely,
when it is the barest speculation that there was tampering, it is proper to admit the
evidence and let what doubt remains go to its weight.” [Citations.]’ [Citations.]”
(People v. Catlin (2001) 26 Cal.4th 81, 134.)
3. Background Facts
As noted above, the prosecution presented evidence of uncharged incidents at
Albertsons stores located in, inter alia, Whittier and Glendora. Pursuant to the request of
defendant’s counsel, the trial court held an Evidence Code section 402 hearing as to
whether a foundation can be provided for the admission into evidence of the purchase
receipts provided for the refunds made at the stores located in Glendora and Whittier
(Exhibits 6 and 7, respectively), and of the video recordings of the return transactions
from those Albertsons’ stores that the prosecutor intended to show to the jury (Exhibits
12 and 13, respectively). Sempson’s testimony at trial and at the Evidence Code section
402 hearing regarding the process of obtaining the evidence essentially was the same for
both store locations.
Sempson said that Eric Chase, an Albertsons’ employee, sent her refund receipt
information regarding refunds for vitamins within a specified price range because it was
suspected that a person who made several returns was the same person. The refund
receipt information for the given stores included the date and time that the refund
transactions occurred. Sempson went to the stores located in Whittier and Glendora, and
based on the refund receipt information, viewed video recordings of the transactions.
Sempson testified that in reviewing the video recordings, “it appeared to be the same
person in [sic] all of those refunds. Sempson asked the bookkeepers for each store for the
9
records of the return transactions depicted in the video recordings (Exhibits 12 and 13),
and they gave her Exhibits 6 and 7—the receipts of the purchase transactions provided
for the refunds made at the stores.
The trial court stated, “Correct me if I am wrong, but it seems to me that the
evidence is that when this witness was alerted to the incidence [sic], she went to the store.
She looked up the video from the transaction in question. She pulled the receipt from the
bookkeeper and based on the video of . . . the transaction, the transaction from the
register for the refund, and based on the receipt that was recovered, that is how it’s all
connected.” Defendant’s counsel argued that the People had not causally tied the
purchase receipt with the video. The trial court replied that this argument went to the
weight of the evidence rather than its admissibility, and invited defendant’s counsel to
make such an argument to the jury. The trial court stated, “[I]t seems to me that it’s
clearly admissible. [If] you want to argue . . . how it’s connected to the defendant, that’s
one thing. But it doesn’t really go to admissibility.” Thereafter, the video recordings
depicting the return transactions at the Albertsons’ stores located in Whittier and
Glendora were played for the jury.
After the People rested, defendant objected to Exhibits 6, 7, 12 and 13 on the
ground of lack of foundation and chain of custody. The trial court stated, “[T]he fact that
the receipts were held by the store, whether it was the bookkeeper or someone else who
had custody of those receipts, I think that the fact that a witness collected the receipts
from the store, and she was able to match to the best of her ability those receipts that
were received to the transaction that occurred on the video about the alleged particular
date and time. [¶] So it does rely on her investigation and her ability to do that. But I
think that the fact that it was held by the store and collected by her, I think is sufficient
foundation to have them received into evidence.”
4. Analysis
The trial court did not abuse its discretion in admitting into evidence the receipt
and video exhibits over defendant’s objections for lack of foundation and chain of
10
custody. There is evidence that Sempson obtained the video recordings (Exhibits 12 and
13) from the Albertsons’ Whittier and Glendora stores based on the refund receipt
information given to her by Chase, an Albertsons’ employee; and Sempson obtained the
purchase receipts (Exhibits 6 and 7) from the bookkeepers at the stores.
Sempson said that she conducted an investigation of the return incidents at the
Albertson stores located in Whittier and Glendora; received refund receipt information
from Chase; obtained and viewed video recordings of return transactions from the
Whittier and Glendora stores based on the information from the refund receipts; saw that
the video recordings were of the same persons; asked the bookkeepers for each store for
the records of the return transactions depicted in the video recordings; and received from
the bookkeepers Exhibits 6 and 7—the receipts of the purchase transactions provided for
the refunds made at the stores located in Glendora and Whittier. The evidence is
sufficient to sustain a finding that the exhibits are what the prosecutor claimed them to
be. (Evid. Code, § 1400)—Exhibits 6 and 7 were receipts presented for a refund at the
Whittier and Glendora stores, and Exhibits 12 and 13 were video recordings of the return
transactions at those stores. In addition, this evidence establishes that it is reasonably
certain that the exhibits were not altered (People v. Richardson, supra, 43 Cal.4th at p.
1003), or at most provides only the barest speculation that they were altered. (People v.
Catlin, supra, 26 Cal.4th at p. 134.) As stated by the Supreme Court in citing a quote
from a treatise, “‘While a perfect chain of custody is desirable, gaps will not result in the
exclusion of the evidence, so long as the links offered connect the evidence with the case
and raise no serious questions of tampering.’” (People v. Catlin, supra, 26 Cal.4th at p.
134.
Defendant contends that there was not a sufficient foundation for the exhibits
(Evid. Code, § 403) because the prosecutor had not established that they concerned
defendant. Although the evidence did not conclusively establish that Exhibits 6 or 7 were
the purchase receipts defendant presented in seeking a refund, or that Exhibits 12 or 13
were of defendant, they had a “tendency in reason to prove” that they were relevant.
(Evid. Code, § 210.) Chase obtained refund receipt information regarding refunds for
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vitamins within a specified price range, and provided that information to Sempson.
Using that information provided by Chase, Sempson obtained and viewed Exhibits 12
and 13, the video recordings of return transactions at the Whittier and Glendora stores.
Sempson saw that the same person was depicted in the video recordings. At trial, the
video recordings were shown to the jury. She obtained Exhibits 6 and 7, the purchase
receipts for those recorded transactions, from each of the store’s bookkeepers. The
ultimate decision of whether the purchase receipts and video recordings related to
defendant was left to the jury. The trial court did not abuse its discretion in admitting
into evidence the receipt and video exhibits.
B. Jury Questions
Defendant contends that the trial court erred when it provided incomplete
responses to questions posed by the jury, and failed to instruct the jury that to convict
defendant of forgery and burglary it had to find defendant specifically committed those
crimes in the Arcadia store. We disagree.
1. Standard of Review
We review claims of instructional error de novo. (People v. Manriquez (2005) 37
Cal.4th 547, 581; People v. Posey (2004) 32 Cal.4th 193, 218.) When the jury is
deliberating, however, decisions by a trial court to instruct or not to instruct, in its
exercise of its supervision over a deliberating jury, are reviewed for abuse of discretion.
(People v. Waidla (2000) 22 Cal.4th 690, 745-746.)
2. Applicable Law
A court has a sua sponte duty to “instruct on general principles of law relevant to
the issues raised by the evidence and necessary for the jury’s understanding of the case.”
(People v. Martinez (2010) 47 Cal.4th 911, 953.) Section 1138 provides in relevant part:
“After the jury have retired for deliberation . . . if they desire to be informed on any point
of law arising in the case . . . the information required must be given . . . .” The trial
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court has a duty to “to clear up any instructional confusion expressed by the jury.”
(People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on another
ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.) “Under [section 1138], the
trial court ‘has a primary duty to help the jury understand the legal principles it is asked
to apply. [Citation.] This does not mean the court must always elaborate on the standard
instructions. Where the original instructions are themselves full and complete, the court
has discretion under [Penal Code] section 1138 to determine what additional explanations
are sufficient to satisfy the jury’s request for information. [Citation.] . . .
[Citation.] . . . [A] court must do more than figuratively throw up its hands and tell the
jury it cannot help. It must at least consider how it can best aid the jury.’ [Citation.]”
(People v. Dominguez (2004) 118 Cal.App.4th 651, 663.)
3. Background Facts
The jury was instructed with CALCRIM No. 375 as follows: “The People
presented evidence that the defendant committed the offense of burglary and forgery that
were not charged in this case. [¶] . . . [¶] If you decide that the defendant committed
those other offenses, you may but are not required to consider that evidence for the
limited purpose of deciding whether or not the defendant acted with the intent to commit
a theft or defraud, in this case, or the defendant had a common plan or scheme to commit
the offenses alleged in this case. [¶] Do not consider this evidence for any other
purpose.” The jury also was instructed with CALCRIM No. 1700, that “[t]he defendant
is charged in Count 1 with burglary,” and with CALCRIM No. 1905, that “[t]he
defendant is charged in Count 2 with forgery.”
During jury deliberations, the jury submitted questions to the trial court: “Can the
defendant be found guilty of the forgery count and not the burglary count?” (Question
1(a)); and “Does the forgery have to be in the Arcadia store or can it be in any store?”
(Question 1(b)). The trial court advised counsel of the jury’s questions, proposed to
answer “Yes” to Question 1(a), and proposed to answer Question 1(b) by saying “the
defendant is only charged with the forgery in the Arcadia store.” Defendant’s counsel
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replied, “I submit.” The trial court asked if there was any objection to the proposed
answers. The prosecutor stated, “No,” and defendant’s counsel did not respond. The trial
court stated, “Then those will be the answers.” The trial court provided the jury with the
responses it had proposed. As discussed below, the responses were appropriate. The jury
resumed deliberations.
The jury asked a question concerning that status of their deliberations (Question
2), and then asked the trial court, “Is positive identification of the defendant in the
Arcadia store required to support the other evidence to reach a verdict [on the burglary
charge]?” (Question 3). After conferring telephonically with counsel regarding Question
3, the trial court provided the jury with the following response: “The People must prove
beyond a reasonable doubt that it was the [defendant] that entered the Arcadia store and
conducted the [burglary] transaction.” After further deliberation, the jury found
defendant guilty of forgery and burglary.
4. Analysis
a) Forfeiture
When the jury was given its instructions prior to deliberating, the trial court did
not instruct the jury that defendant was only charged with forgery and burglary for
conduct that occurred in the Albertsons’ store located in Arcadia. For the first time on
appeal, defendant contends that the trial court erred because it provided incomplete
responses to the jury’s Questions 1(b) and 3. There is no evidence in the record,
however, that defendant’s counsel objected to the trial court’s proposed responses.
Defendant’s claimed error therefore has been forfeited. (People v. Roldan, supra, 35
Cal.4th at p. 729; People v. Cooper (1991) 53 Cal.3d 771, 847; People v. Medina (1990)
51 Cal.3d 870, 902.)
Defendant contends that by failing to object, she could not forfeit her contentions
that the trial court had sua sponte duty to instruct the jury that to convict defendant of
forgery or burglary, it had to find defendant committed forgery or burglary in the Arcadia
14
store. Those contentions were raised for the first time in her reply brief. Because
defendant failed to raise these contentions in her opening brief, it is forfeited and we need
not address it. (People v. Bryant, Smith & Wheeler (2014) 60 Cal.4th 335, 408; Doe v.
Roman Catholic Archbishop of Cashel and Emly (2009) 177 Cal.App.4th 209, 219, fn. 4.)
b) Merits
Even if we were to consider the merits of defendant’s claims, we would conclude
that the trial court did not err. Defendant contends the trial court’s responses were
incomplete because the trial court did not advise the jury specifically that the acts of
forgery and burglary had to occur in the Arcadia store. While it is true that the trial court
did not initially instruct the jury specifically that the acts of forgery and burglary had to
occur in the Arcadia store, in responding to the jury’s questions, the trial court advised
the jury that defendant was charged only with the forgery in the Arcadia store and, “The
People must prove beyond a reasonable doubt that it was the [defendant] that entered the
Arcadia store and conducted the [burglary] transaction.” The trial court’s responses,
therefore, were complete.
Defendant contends the trial court’s responses were incomplete because they did
not “clear up the jurors’ misunderstanding about the limited use they could make of
the . . . evidence” of the burglary and forgery offenses at the other stores that were not
charged in this case. Based on the trial court’s responses to the jury’s questions, the jury
was advised that to convict defendant of forgery or burglary, those acts had to have
occurred in the Arcadia store. The burglary and forgery offenses that occurred in the
other stores—Glendora, Whittier and Temecula—were not charged in this case. The jury
was instructed with CALCRIM No. 375 that evidence of the offense of burglary and
forgery that was not charged in this case (i.e., the offenses that occurred in the Glendora,
Whittier and Temecula stores) may only be used “for the limited purpose of deciding
whether or not the defendant acted with the intent to commit a theft or defraud, in this
case, or the defendant had a common plan or scheme to commit the offenses alleged in
this case,” and not for any other purpose. Despite defendant’s contention, the jury was
15
instructed on the limited use that they could make of the evidence of the burglary and
forgery offenses that occurred in the Glendora, Whittier and Temecula stores.
We also disagree with defendant that the trial court erred by failing to instruct the
jury, sua sponte, that to convict defendant of forgery or burglary, it had to find defendant
committed the acts in the Arcadia store. A court has a sua sponte duty to “instruct on
general principles of law” relevant to the case. (People v. Martinez, supra, 47 Cal.4th at
p. 953.) Instructing on the location of the forgery and burglary incidents are not general
principles of law. In any event, as discussed above, the trial court advised the jury that
the acts of forgery and burglary had to occur in the Arcadia store. That is, the trial court
cured any error by the trial court in failing to instruct sua sponte on the location of the
offense. (People v. Gonzales (1999) 74 Cal.App.4th 382, 390, disapproved on another
point in People v. Anderson (2011) 51 Cal.4th 989, 998, fn. 3.)
C. Jury Verdicts
Defendant contends that the trial court erred in sealing the jury’s verdict on count
2 while instructing the jury to continue its deliberation on count 1, and in not directing
the jury to reconsider their sealed verdict. We disagree.
1. Applicable Law
“A trial court has several options available when a jury reports it is deadlocked on
one or more counts while it has arrived at a verdict on another count. One option is for
the trial court to receive, to acknowledge, and to record each verdict as the jury arrives at
it, sending the jury back to deliberate on the yet unresolved counts. Such a procedure is
consistent with . . . section 1164.[5] (People v. Rigney (1961) 55 Cal.2d 236, 246 [10
5
Section 1164 provides, “(a) When the verdict given is receivable by the court, the
clerk shall record it in full upon the minutes, and if requested by any party shall read it to
the jury, and inquire of them whether it is their verdict. If any juror disagrees, the fact
shall be entered upon the minutes and the jury again sent out; but if no disagreement is
expressed, the verdict is complete, and the jury shall, subject to subdivision (b), be
discharged from the case. [¶] (b) No jury shall be discharged until the court has verified
16
Cal.Rptr. 625, 359 P.2d 23, 98 A.L.R.2d 186].) . . . [A]nother acceptable option
available to the trial court is not to receive any verdicts on decided counts from the jury
until they have finished deliberations on all other counts. (People v. Finch (1963) 213
Cal.App.2d 752, 762 [29 Cal.Rptr. 420].) Under the Finch approach, a jury would thus
be able to reconsider verdicts that they had already agreed upon while at the [same] time
further deliberating on the counts that remained undecided . . . .” (People v. Hernandez
(1985) 163 Cal.App.3d 645, 658.) In People v. Hernandez, supra, 163 Cal.App.3d 645,
the trial court utilized yet another approach—sealing the jury’s verdict on one count
while allowing the jury to continue its deliberation of the other count, and then upon the
jury’s request, permitting the jury to reconsider its decision in the sealed count. (Id. at p.
649.) The court stated that although the trial court did not follow the Finch approach, it
was “not persuaded” that the trial court’s approach was erroneous because the “net
effect” in allowing the trial court to ask to reconsider the verdict “was the same” as the
Finch approach. (Id. at p. 658, fn. 9.)
Section 1161 provides, “When there is a verdict of conviction, in which it appears
to the court that the jury have mistaken the law, the court may explain the reason for that
opinion and direct the jury to reconsider their verdict . . . .” (People v. Carbajal (2013)
56 Cal.4th 521, 536 [“when the jury returns a verdict of conviction that the court believes
to be in error, the court—exercising its authority under section 1161—should take care to
thoroughly instruct the jury on the applicable law and to explain why the court believes
the verdict reflects the jury’s mistake of the law”].)
2. Background Facts
As discussed above, the jury asked a question of the trial court concerning that
status of their deliberations: “The jury have [sic] reached a verdict for one count and
on the record that the jury has either reached a verdict or has formally declared its
inability to reach a verdict on all issues before it, including, but not limited to, the degree
of the crime or crimes charged, and the truth of any alleged prior conviction whether in
the same proceeding or in a bifurcated proceeding.”
17
cannot agree on the other count. [¶] Could the court please advise on what the next step
should be?” (Question 2). The jury entered the courtroom, and the foreperson indicated
that there was a chance that further deliberations might result in a verdict. The trial court
then asked the jury foreperson whether any further instructions or answers to questions
might assist the jury, and the foreperson replied, “Maybe.” The trial court advised the
jurors to discuss whether they wanted to submit to it any additional questions. The court
also asked the jurors to deliver to the bailiff, in a sealed envelope, the verdict form for the
count in which a verdict had been reached. The jury did so and resumed deliberations.
After deliberating further, the jury advised the court that it had reached a verdict.
The jury entered the courtroom, and the foreperson confirmed that a verdict had been
reached. The trial court stated that it had previously received the verdict form for count 2
(forgery) in a sealed envelope, and it “just opened” the sealed envelope. The trial court
also acknowledged that the verdict form for count 1 (commercial burglary) had just been
received. The clerk read aloud the verdicts of guilty on both counts, and each of the
jurors confirmed that they were his or her individual verdicts.
3. Analysis
The trial court did not err in sealing the jury’s verdict on count 2 while instructing
the jury to continue its deliberation on count 1. The trial court in People v. Hernandez,
supra, 163 Cal.App.3d 645, utilized the same approach, and upon the jury’s request,
permitted the jury to reconsider its decision in the sealed count. (Id. at p. 649.) Although
here the jury did not request to reconsider its decision in the sealed count, it had the right
to do so if it so desired. “[I]f any juror states that the verdict does not reflect his or her
true intent, sections 1163 and 1164, subdivision (a) require the court to order further
deliberations. In these ways, the statutory scheme provides courts with specific
mechanisms for prompting a jury’s reconsideration of an erroneous or inconsistent
verdict.” (People v. Carbajal, supra, 56 Cal.4th at p. 537.) Each of the jurors confirmed
that the verdicts were his or her individual verdicts.
18
Section 1161 does not provide that a trial court “must” direct the jury to reconsider
their verdict when it appears to the court that the jury had mistaken the law. The statute
on its face provides that a trial court “may” direct the jury to reconsider their verdict. In
addition, People v. Carbajal, supra, 56 Cal.4th at page 537 merely provides that the trial
court “should” comply the provisions of section 1161. That is, the trial court is permitted
to require the jury to reconsider their verdict when it suspects that the jury made a
mistake of law, but it is not mandatory for the trial court to do so.
In any event, there is no evidence that the trial court found that the jury’s guilty
verdict on count 2 (forgery), the sealed verdict, appeared to have been a result of a
mistake in the law. Defendant essentially contends that the trial court must have known
that the sealed verdict on count 2 (forgery) was the result of a mistake in the law because
the jury thereafter had posed Question 3 asking whether a positive identification of
defendant in the Arcadia store was required to support a verdict on count 1 (burglary).
It cannot reasonably be inferred that the trial court knew the sealed verdict was a
result of a mistake in the law. The trial court learned of the contents of the sealed verdict
on count 2 at the same time it learned of the contents of the subsequent verdict on count
1. Because the jury found defendant guilty on count 1 (burglary) after asking whether a
positive identification of defendant in the Arcadia store was required (Question 3), the
sealed verdict on count 2 (forgery), in which the jury also found defendant guilty, would
not have appeared to be the result of a mistake in the law.
D. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct by misrepresenting
that defendant committed 17 prior similar crimes, causing the trial court, at the
preliminary hearing, to deny defendant’s motion to reduce the offenses to misdemeanors;
failing to provide timely and complete discovery as to the prior similar crimes; and
introducing evidence lacking adequate foundation in an attempt to prove at trial three of
the prior similar crimes, and by relying on that evidence during closing argument.
Defendant has forfeited her contentions.
19
1. Applicable Law
“‘“A prosecutor’s misconduct[6] violates the Fourteenth Amendment to the United
States Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] In other words, the misconduct must be
‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’
[Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ [Citations.]” [Citations.]’
[Citation.]” (People v. Lopez (2013) 56 Cal.4th 1028, 1072.)
2. Background Facts
a) The Preliminary Hearing
At the preliminary hearing, defendant’s counsel moved to reduce both offenses.
The prosecutor opposed the motion, arguing that defendant’s conduct was sophisticated
because she prepared a fraudulent receipt prior to entering the store, and Albertsons’
conducted an investigation and concluded that defendant had engaged in similar thefts in
various Albertsons stores throughout Southern California.
The trial court asked whether charges had been filed in connection with any of the
incident of prior similar crimes, and the prosecutor deferred “to the detective.” Arcadia
Police Detective Brian Oberon replied that one of the cases had been dismissed, but there
were several pending cases in Los Angeles County and Orange County. The prosecutor
then referred to surveillance photographs of a person resembling defendant, who was
involved in the various similar incidents.
6
“[T]he term prosecutorial ‘misconduct’ is somewhat of a misnomer to the extent
that it suggests a prosecutor must act with a culpable state of mind. A more apt
description of the transgression is prosecutorial error.” (People v. Hill (1998) 17 Cal.4th
800, 823, fn. 1.)
20
Defendant’s counsel argued that there had been no convictions in any of the prior
cases. The trial court agreed with the assertion by defendant’s counsel that defendant
was innocent until proven guilty, but noted that defendant’s motion to reduce the offenses
to misdemeanors was based in large part on the argument that the instant offenses for
which defendant is now charged were based on an isolated incident. The trial court stated
the argument that the present crimes are an isolated incident was undermined by the
information suggesting that defendant had been involved in other similar incidents. The
trial court therefore denied defendant’s motion without prejudice.
b) The Discovery
On April 30, 2013, the prosecutor filed a motion in limine seeking to admit
evidence of uncharged incidents under Evidence Code section 1101, subdivision (b). The
written motion provided a summary of the incident at bar and 15 prior incidents. On June
4, 2013, at a pretrial conference held in the calendar court, the prosecutor sought a ruling
on the motion in limine requesting an advanced ruling on which prior incidents would be
admissible because he wanted to know what witnesses “need[ed]” to be subpoenaed. The
prosecutor stated that the prior incidents occurred in 17 different cities. The calendar
court stated that the judge assigned to the trial of this matter would likely impose a limit
on the number of prior incidents. The prosecutor said that he needed to know what
evidence he would be permitted to introduce at an opening statement to the jury. The
calendar court stated that it was deferring the matter to the trial judge who ultimately is
assigned to the case, advised the prosecutor to “subpoena whoever [sic] you feel you
need to subpoena,” and ordered the parties to return at a later date.
On October 24, 2013, after several continuances, the case was assigned to a trial
judge, and the matter was continued to October 28, 2013. On October 28, 2013,
defendant filed a trial brief arguing, inter alia, that all evidence of prior incidents should
be excluded because of the prosecutor’s failure to provide timely discovery. Defendant
argued that she had not been provided the names of the potential witnesses until October
27, 2013. Attached to defendant’s trial brief was an email from the prosecutor stating
21
that the prosecutor would seek to introduce evidence of the prior incidents in Glendora,
Dana Point, Whittier, Temecula, and San Diego. Also attached to defendant’s trial brief
was the prosecutor’s witness list, which included the names and contact information for
witnesses as to the prior incidents in Temecula, Glendora, Whittier, and Riverside. On
October 28, 2013, jury selection commenced.
Following jury selection, the trial court revisited the admissibility of Evidence
Code section 1101, subdivision (b) evidence. The trial court found the evidence to be
admissible under Evidence Code sections 1101, subdivision (b) and 352. The trial court
did not address defendant’s argument that the evidence should be excluded as a sanction
for late discovery, and defendant did not at that time request a ruling on that issue.
c) Trial
At trial, as noted above, the prosecutor presented evidence as to incidents at the
Albertsons’ stores located in Glendora, Whittier, and Temecula. During closing
argument, in urging the jury to convict defendant on the charged offenses, the prosecutor
relied, in part, on defendant having engaged in similar conduct in the uncharged
incidents.
3. Analysis
The Attorney General contends that defendant forfeited her contention that there
was prosecutorial misconduct because defendant did not object on those grounds and did
not seek to have the jury admonished. “‘As a general rule a defendant may not complain
on appeal of prosecutorial misconduct unless . . . on [that] ground—the defendant made
an assignment of misconduct and requested that the jury be admonished to disregard the
impropriety.’” (People v. Hill, supra, 17 Cal.4th at p. 820.) “A failure to timely object
and request an admonition will be excused if doing either would have been futile, or if an
admonition would not have cured the harm. [Citation.]” (People v. Linton (2013) 56
Cal.4th 1146, 1205; People v. Morales (2001) 25 Cal.4th 34, 43-44.)
22
Defendant contends that to the extent the prosecutor’s misconduct was made to the
trial court, and not the jury, no admonition was required. We agree, but there still must
be a specific objection on the grounds of prosecutorial misconduct to preserve the claim
on appeal. (People v. Linton, supra, 56 Cal.4th at p. 1205; People v. Roldan, supra, 35
Cal.4th at p. 729; People v. Hill, supra, 17 Cal.4th at p. 820.) Even if there was “an
ordinary evidentiary objection” it is insufficient to preserve a claim of prosecutorial
misconduct. (People v. Erickson (1997) 57 Cal.App.4th 1391, 1403.) Defendant did not
object on the ground of prosecutorial misconduct to the prosecutor having failed to
provide timely and complete discovery as to prior similar crimes; or to the prosecutor
introducing evidence of the prior similar crimes but lacking adequate foundation in an
attempt to prove them, and by relying on that evidence during closing argument.
With regard to her contention that the prosecutor committed misconduct by stating
at the preliminary hearing that defendant committed prior similar crimes, without having
sufficient evidence to establish it, defendant also did not object on the ground of
prosecutorial misconduct. Defendant contends that she could not make such an objection
at the preliminary hearing because at that time she did not know what evidence, if any,
the prosecutor had to prove those incidents. That may be true, but at no time did
defendant object on the ground of prosecutorial misconduct. Defendant has forfeited her
contention that there was prosecutorial misconduct because she did not object on those
grounds at any time before the trial court.
Even if we were to consider the merits of defendant’s contention that the
prosecutor committed misconduct by stating at the preliminary hearing that defendant
committed prior similar crimes, without having sufficient evidence to establish it,
defendant does not establish that the prosecutor did not have sufficient evidence to
establish that defendant committed the prior crimes. Indeed the prosecutor presented
sufficient evidence to at least reasonably infer that defendant committed the prior crimes
in the Albertson’s stores located in Glendora, Whittier, and Temecula.
23
E. Reduction of the Crimes to Misdemeanors
Defendant contends that her commercial burglary and forgery convictions must be
reduced to misdemeanors. We disagree.
1. Applicable Law
“On November 4, 2014, California voters enacted Proposition 47, ‘The Safe
Neighborhoods and Schools Act,’ to maximize sentencing alternatives for nonserious,
nonviolent crimes. [Citations.]” (People v. McCoy (2015) 239 Cal.App.4th 431, 434.)
Section 459.5, subdivision (a), established by Proposition 47, provides: “[S]hoplifting is
defined as entering a commercial establishment with intent to commit larceny while that
establishment is open during regular business hours, where the value of the property that
is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any
other entry into a commercial establishment with intent to commit larceny is burglary.
Shoplifting shall be punished as a misdemeanor . . . .” Proposition 47 amended Section
473, subdivision (b), which section provides, “[A]ny person who is guilty of forgery
relating to a check, bond, bank bill, note, cashier’s check, traveler’s check, or money
order, where the value of the check, bond, bank bill, note, cashier’s check, traveler’s
check, or money order does not exceed nine hundred fifty dollars ($950), shall be
punishable by imprisonment in a county jail for not more than one year . . . .”
Proposition 47 also created section 1170.18, subdivision (a), which section
provides, “A person currently serving a sentence for a conviction, whether by trial or
plea, of a felony or felonies who would have been guilty of a misdemeanor under the act
that added this section (‘this act’) had this act been in effect at the time of the offense
may petition for a recall of sentence before the trial court that entered the judgment of
conviction in his or her case to request resentencing . . . .” Section 1170.18, subdivision
(f) provides, “A person who has completed his or her sentence for a conviction, whether
by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor
under this act had this act been in effect at the time of the offense, may file an application
24
before the trial court that entered the judgment of conviction in his or her case to have the
felony conviction or convictions designated as misdemeanors.”
2. Analysis
Defendant requests that we, in the first instance, or on remand to the trial court,
reduce her convictions to misdemeanors pursuant to section 1170.18.7 We reject
defendant’s request.
Section 1170.18 unambiguously states that the person who seeks relief pursuant to
its provisions must do so through a petition or application to the trial court. (§ 1170.18,
subds. (a) and (f).) In People v. Shabazz (2015) 237 Cal.App.4th 303 we said: “[T]he
voters never intended that Proposition 47 would automatically apply to allow us to reduce
defendant’s . . . felonies to misdemeanors. . . . Proposition 47 does not apply
retroactively so as to permit us to . . . direct that, upon remittitur issuance, defendants’
convictions be designated misdemeanors. Defendant is limited to the statutory remedy
set forth in section 1170.18, subdivision[s (a) and] (f). He must file [a petition or] an
application in the trial court to have his felony convictions designated misdemeanors.
[Citation.]” (People v. Shabazz, supra, 237 Cal.App.4th at p. 314.)
It should be noted that defendant may not have been “sentenced” because the trial
court suspended imposition of sentence and defendant was placed on probation for a
period of three years on the condition that she serve 180 days in county jail. (People v.
Howard (1997) 16 Cal.4th 1081, 1087.) There is no evidence in the record whether
defendant completed her conditional probation, or whether her probation was revoked
and sentence imposed, which she may or may not have completed.
7
There appears to be a split of authority whether the trial court may entertain a
section 1170.18, subdivision (a) petition for resentencing while an appeal is pending in
the defendant’s case. (See People v. Scarbrough (2015) 240 Cal.App.4th 916; People v.
Awad (2015) 238 Cal.App.4th 215.)
25
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J.
We concur:
TURNER, P. J.
KRIEGLER, J.
26