P. v. Howard

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Filed 11/1/17 P. v. Howard 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES JOSEPH HOWARD,
Defendant and Appellant.
C077703
(Super. Ct. No. 14F01395)
When a Walmart associate confronted defendant James Joseph Howard in the
Walmart parking lot after observing defendant and his companion leave the store without
paying for merchandise, defendant pepper-sprayed the associate’s eyes. A jury convicted
defendant of robbery in the second degree (Pen. Code, § 211),1 second degree
commercial burglary (§ 459), and assault (§ 240). The jury also found true an
enhancement allegation that defendant personally used a deadly or dangerous weapon in
the commission of the robbery and burglary. (§ 12022, subd. (b)(1).) The trial court
1 Undesignated statutory references are to the Penal Code.

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sentenced defendant to six years in prison: the upper term of five years for the robbery
plus one year for the weapons enhancement. It imposed but stayed a two-year sentence
for the burglary and a 120-day sentence for the assault, requiring defendant to pay $120
in restitution to Walmart.
Soon after defendant was sentenced, Proposition 47, the Safe Neighborhoods and
Schools Act, went into effect, permitting defendants who had been sentenced under
section 459 for felony commercial burglary based on the shoplifting of property valued
under $950 to petition for a reduction to a misdemeanor. (§ 1170.18.)
Defendant now contends (1) the trial court abused its discretion in precluding
evidence of the Walmart associate’s employee disciplinary record, and (2) we should
reduce his felony commercial burglary conviction to a misdemeanor because his
conviction is not yet final.
We will affirm the judgment.
BACKGROUND
An employee with the title Asset Protection Associate was working at the Walmart
store on Antelope Road on February 9, 2014. Defendant entered the store with a woman.
The associate recognized them from an earlier suspected shoplifting incident and began
to watch them on security monitors in the security office. Security cameras showed
defendant and his companion make a series of suspicious moves, beginning when
defendant removed the packaging and a “spider wire” security device from a cell phone
and Bluetooth headset, valued together between $100 and $150. The cameras showed
defendant stashing the phone on random shelves, then carrying it in his pocket, then
stashing it in another location in the store, then retrieving it, all while moving around the
store until the woman accompanying defendant picked up the phone where defendant left
it in the bedding department and the two made their way to the store’s exit, abandoning a
partly-filled shopping cart the woman had been pushing.

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The associate, accompanied by another Walmart security worker, followed
defendant and his companion as they exited the store. As the associate introduced
himself, defendant sprayed the associate’s eyes with a burning substance which the
defendant identified as either pepper spray or mace. Later, the associate found the spider-
wire and packaging in the locations where he had seen them stashed in different areas of
the store. When officers stopped defendant’s car they found a small black canister of
pepper spray in his glove compartment and, in the trunk, a black and white windbreaker
matching the one he wore at Walmart. The missing Walmart merchandise was not
recovered.
During trial, the jury watched a 20-minute video made by the store’s surveillance
cameras showing the movements of defendant and his companion that day, while the
associate answered questions about what they were seeing. Still shots from the
surveillance video were also admitted into evidence.
The associate had been terminated from his Walmart employment after the
offenses but before trial. Over defendant’s objection, the trial court precluded evidence
regarding the associate’s disciplinary record.
The jury convicted defendant of robbery, commercial burglary and assault.
The trial court sentenced him to six years in prison.
Additional facts are included in the discussion.
DISCUSSION
I
Defendant contends the trial court abused its discretion in precluding evidence of
the Walmart associate’s employee disciplinary record. He argues the associate’s prior
misconduct could shake the jury’s confidence in the associate’s credibility, and he was
denied his constitutional right to confront the witness because the employment record
revealed “previous overzealous and mistaken apprehensions.”

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Generally, relevant evidence is admissible. (Evid. Code, § 351.) Evidence is
relevant if it 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.) Nevertheless, a
court may exclude evidence “if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352.) A trial court has broad discretion to determine whether to admit or
exclude evidence under Evidence Code section 352 and its decision will not be
overturned on appeal absent an abuse of that discretion. (People v. Mullens (2004)
119 Cal.App.4th 648, 658.) Discretion is abused when an evidentiary decision is outside
the bounds of reason, all circumstances considered. (Ibid.)
Defendant cites People v. Wheeler (1992) 4 Cal.4th 284, superseded on other
grounds as state in People v. Duran (2002) 97 Cal.App.4th 1448, 1459-1460, in support
of his argument. But that case involved a trial witness’s conviction for a crime involving
moral turpitude under circumstances that arguably evidenced a willingness to lie. (Id. at
pp. 295-297.) Here there is no evidence the terminated associate committed a crime,
engaged in any conduct involving moral turpitude, or demonstrated a willingness to lie.
The trial court conducted an Evidence Code section 402 hearing outside the
presence of a jury to determine whether defendant could introduce evidence regarding the
associate’s employment disciplinary record. At the hearing, a Walmart supervisor
explained why he fired the associate. The supervisor said the associate had been
employed by Walmart for almost six years but did not adequately follow company policy
when a woman was suspected of stealing a cell phone cover. According to the
supervisor, the store’s cameras showed the woman taking a cell phone cover out of its
packaging, trying it on her phone, and going to the pet department to discard the
packaging; from there, she went to the pharmacy where she selected some sleep-aid pills
and gave them to her husband, who pocketed the pills; the pair then went to the register

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where they paid for some items but not the sleeping pills or the cell phone cover. The
cell phone case packaging was later found in the pet department but the case was not
recovered. The associate explained to his supervisor that he was a few feet away
watching the woman when she discarded the packaging; he said the woman turned away
from him and he did not know where else the case could have gone. The supervisor
discovered that the video did not show the woman “concealing” the cell phone case. The
supervisor testified that observing the concealment of merchandise is an important
element of Walmart policy in apprehending shoplifters and the associate’s failure to
observe concealment was the last straw that led to termination of the associate, as he had
previously been counseled about working more than five hours without taking a lunch
break and following suspects too closely into the parking lot for the associate’s own
safety.
The prosecutor moved to exclude the disciplinary evidence. The trial court noted
that the associate was not terminated for lying; he was terminated because he did not
follow Walmart procedure. The trial court ruled the disciplinary record would not be
admitted because it was not relevant.
Defense counsel raised the issue again just before cross-examination of the
associate. The trial court again said that asking the associate about his discipline would
serve no appropriate purpose.
Defendant argues the evidence of his theft was not overwhelming because, as was
the case in the incident leading to the associate’s termination, the video did not clearly
show defendant’s accomplice concealing merchandise. Defendant contends the
employment record might have helped him persuade the jury that the defendant’s female
companion did not take concealed merchandise from the store.
We agree with the trial court that the excluded evidence was not probative.
Evidence that the associate was fired for a policy violation may have evoked some form
of emotional bias against him, but it did not clearly reflect on his credibility regarding

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defendant. Moreover, evidence of the associate’s discipline would have been distracting
and time-consuming, as it would not assist jurors in determining whether defendant’s
companion concealed merchandise. The jurors were able to decide that issue from the
admitted evidence, particularly the surveillance video. In fact, defendant cross-examined
the associate with the video of defendant’s female companion and obtained the
associate’s agreement that the video and photographs were too blurry to see clearly
whether the woman had anything in her hand at a certain point.
Defendant nevertheless asserts that the exclusion violated his constitutional right
to confront witnesses at trial because he was not able to adequately challenge the
credibility of the prosecution’s strongest witness. But he did confront and cross-examine
the associate; he was simply barred from eliciting irrelevant, distracting or unduly time-
consuming evidence from that witness. The routine application of state evidence law
does not implicate federal confrontation rights absent proof that the jury would have had
a significantly different impression about the credibility of a witness whose cross-
examination was limited. (People v. Pearson (2013) 56 Cal.4th 393, 455-456.) We are
not persuaded that the jury’s impression of the associate’s credibility would have been
significantly different absent the court-imposed limitation.
The trial court’s decision to exclude evidence about the associate’s termination
was well within its discretion and it did not violate defendant’s right to confront
witnesses against him.
II
Defendant next contends we should reduce his felony commercial burglary
conviction to a misdemeanor because his conviction is not yet final. He concedes there is
published authority to the contrary, but he contends it was wrongly-decided.
Effective November 5, 2014, Proposition 47 made it a misdemeanor to shoplift
property valued at less than $950. (§ 459.5.) Defendant was sentenced on October 24 for
felony commercial burglary involving property valued at under $150. Defendant presents

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the general rules regarding retroactive application of reductions in criminal penalties,
focusing on savings clauses and the interpretation of legislative intent. But his argument
does not apply in this context because under Proposition 47, his sole remedy is to petition
the trial court for recall of his sentence pursuant to section 1170.18. (People v. Shabazz
(2015) 237 Cal.App.4th 303, 313; People v. Bradshaw (2016) 246 Cal.App.4th 1251,
1257.) The plain language of the statute refers to the date of sentencing, not the
subsequent date when the conviction has become final. (§ 1170.18, subd. (a) [“A person
who, on November 5, 2014, was serving a sentence for a conviction” may petition for
recall of sentence].)
We decline to modify defendant’s sentence.
DISPOSITION
The judgment is affirmed.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
MURRAY, J.

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