Filed 7/25/16 P. v. Calloway CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B264509

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA100417)
         v.

LAMAR CALLOWAY,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, James D.
Otto, Judge. Affirmed as modified.


         John Doyle, 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, Assistant Attorney General, Shawn McGahey Webb and
Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.


                                                       ******
       Lamar P. Calloway appeals from his judgment of conviction for petty theft after a
specified prior conviction (Pen. Code, § 490.2)1 for taking four bags of laundry detergent
from a grocery store. We order the abstract of judgment corrected in one respect but
otherwise affirm.
                                          FACTS
1. Prosecution Evidence
       Michael Heranic and Larry Zamora were loss prevention agents at an Albertsons
grocery store in Long Beach. They were employees of Tier One Solutions (Tier One), a
security company that contracted with Albertsons. Their job was to observe and
apprehend shoplifters, and they wore plain clothes to blend in with customers.
       On September 30, 2014, Heranic observed appellant in aisle 14, a high-theft aisle.
Among other things, aisle 14 contained Tide laundry detergent, one of the most stolen
items in the store. Heranic initially estimated he was approximately six feet away from
appellant, but then explained he was more like 14 feet away. He had a clear unobstructed
view of appellant. He was using mirrors on his cart to observe appellant. Zamora was on
the other side of appellant, about the same distance away. Appellant had an empty cart
and an empty bag, similar to a “shoe bag” or “soccer bag,” in the child portion of the cart.
Heranic and Zamora saw appellant select a bag of Tide pods from the shelf and place it in
his empty shoe bag. Appellant went to aisle 16 and left the cart and bag, went back to
aisle 14 and grabbed three more bags of Tide pods, returned to aisle 16, and put the three
bags of pods into his shoe bag also. He pulled the drawstring on the shoe bag to close it.
       After observing this, Heranic went outside the store but kept in constant
communication with Zamora on his cellular phone. Zamora followed appellant as he
approached another aisle, placed the shoe bag on his back like a backpack, and exited the
store. Appellant did not attempt to pay for the Tide pods or stop at the registers.



1      Further undesignated statutory references are to the Penal Code.



                                             2
       Heranic approached appellant at the exit and identified himself as a loss
prevention agent. Zamora also identified himself as such. Heranic asked if he could talk
to appellant about what was in his bag. Appellant immediately moved toward the
parking lot and raised his elbows to approximately shoulder height, moving them back
and forth in a rapid motion. Heranic repeatedly said, “Listen to me,” in an effort to get
appellant back inside the store. Appellant dropped his arms and Heranic grabbed his
right arm. Zamora grabbed appellant’s left arm. Appellant struggled against them and
tried to get away. He was moving around and pulled both Zamora and Heranic
approximately five to 10 feet further from the store exit. Heranic got behind appellant to
try to handcuff him, and appellant elbowed him in the face. Zamora got a more secure
hold on appellant’s arms, and Heranic handcuffed him.
       Appellant stopped resisting then, and they took him to an upstairs room in the
store. Heranic looked inside the shoe bag and found only the four bags of Tide pods. It
did not contain any purchase receipts, cash, or any other method of payment. Heranic
took the Tide pods downstairs to get a “training receipt” for them so that he could have a
record of their value. The receipt he obtained stated, “Void in training mode.”
       Heranic assumed Albertsons had surveillance cameras over the entire store,
including monitoring aisle 14, but he did not know for certain, and he did not have
control over the surveillance footage. Heranic and Zamora recalled seeing surveillance
footage of the incident, but only of appellant walking back into the store after they had
detained appellant. Heranic believed he had followed Tier One’s policies regarding the
apprehension of suspects.
       Officer Ignicio Zavala of the Long Beach Police Department responded to the
Albertsons. He searched appellant before placing him in custody and found 15 cents on
appellant’s person but no other forms of payment or receipts.
       Appellant had a prior conviction for assault with intent to commit rape (§ 220),
five prior convictions for burglary (§ 459), and a prior conviction for possession of
cocaine base for sale (Health & Saf. Code, § 11351.5).



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2. Defense Evidence
       Appellant testified in his own defense. He went to Albertsons on September 30,
2014, to purchase detergent for his roommate. He also picked up cupcakes. He put both
the detergent and cupcakes in the cart but not inside his bag. He paid for the detergent
and cupcakes at the cash register and had a receipt. He then put everything in his bag and
exited. When appellant exited the store, Heranic stopped him; he asked if he could speak
to appellant and asked what he had in the bag. Appellant had the receipt for the detergent
and cupcakes in his pocket. He did not reply to Heranic and turned to walk away, then
felt a tug on his bag. He told Heranic he had paid for the items, but he and Zamora both
grabbed appellant. Heranic took appellant’s bag off his back and opened it. They
handcuffed him and walked him inside the store. Appellant denied hitting Heranic or
making contact with him at all.
       Heranic and Zamora took appellant upstairs where he gave a written statement
saying he had a receipt for the items. He had his receipt there as well. Long Beach
police officers transported him to the police station. Appellant believed the police
booked into evidence his receipt and the Albertsons incident report containing his
statement.
       Officer Luis Ramirez of the Long Beach Police Department responded to
Albertsons and was provided with evidence, namely the Tier One incident report, the
training receipt, appellant’s bag, and the four bags of Tide pods. He was not provided
with any cupcakes.
       Detective Mark Steenhausen of the Long Beach Police Department contacted
Donna Jones on October 1, 2014, another loss prevention agent employed by Albertsons
(not a Tier One employee). At the store, she showed the detective surveillance footage of
appellant pushing a shopping cart in the store and of appellant exiting the store. She
copied footage to a flash drive and gave it to another officer working with the detective,
who booked it into evidence on October 1, 2014.
       The detective tried to view the video on the flash drive on January 15, 2015, and
make copies for the prosecution and defense, but he could not open it. He sent it to the


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computer crimes unit, which put the video on CD’s for the detective, the prosecution, and
the defense. The detective then reviewed the video on the CD, and it did not contain the
footage of appellant pushing the cart in the store, only footage of him entering and exiting
the store. He had asked Jones to copy the footage of appellant in the store in addition to
what was on the CD. He did not know what happened to that footage. He did not edit or
delete any of the footage Jones gave him.
       Jones had no independent recollection of what transpired in the video she showed
the detective at the store. It was her practice to provide officers with whatever footage
they requested and do her best to provide the most complete coverage of the incident that
existed. She did not edit the footage provided to law enforcement. But she had no
specific recollection of what she copied on this occasion.
       Jones worked at Albertsons from April 2014 to April 2015. For roughly the first
half of her employment there, surveillance cameras did not record aisle 14. Jones could
not recall whether there were cameras on aisle 14 on the date in question. She no longer
worked for Albertsons, but she thought the store should still have the surveillance footage
from the date in question.
                                      PROCEDURE
       The second amended information charged appellant with second degree robbery
(§ 211) and petty theft after a specified prior conviction (§ 490.2). The information also
alleged appellant had served seven prior prison terms (§ 667.5), had one prior strike
(§§ 667, subds. (b)-(j), 1170.12, subd. (b)), and had one prior serious felony conviction
(§ 667, subd. (a)(1)).
       The jury found appellant guilty of petty theft after a specified prior conviction
(assault with intent to commit rape), but acquitted him of second degree robbery. It
found the seven prior prison term and the prior strike allegations to be true. The court
sentenced appellant to a state prison term of eight years, consisting of the midterm of two




                                             5
years, doubled pursuant to the “Three Strikes” law, plus one year each for four prior
prison term enhancements.2 Appellant filed a timely notice of appeal.
                                      DISCUSSION
       Appellant contends the court should have granted a mistrial because the
prosecution violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) by failing to produce
certain surveillance video evidence. Alternatively, he contends his counsel was
ineffective for failing to follow up on the video evidence. He also asserts the court erred
in excluding certain evidence of Albertsons’ shoplifting policies. We reject these
arguments.
1. The Court Did Not Err in Denying Appellant’s Mistrial Motion Based on Purported
    Brady Error
       Appellant moved for a mistrial on the ground that there was evidence of
exculpatory video footage, which the prosecution never produced. He contended the
missing video would show him pushing his shopping cart in the direction of the cash
registers and that he did not conceal the detergent and cupcakes inside his bag. The court
denied the motion. On appeal, he reiterates this claim and argues the court should have
granted the mistrial motion (or ordered the prosecution to turn over the video footage).
He asserts the court’s failure to do either violated his due process rights under the
Fourteenth Amendment to the United States Constitution and Brady. We disagree and
hold appellant has failed to establish Brady error.
       Pursuant to Brady, the prosecution has a duty under the Fourteenth Amendment’s
due process clause to disclose evidence that is favorable to the defendant and material on
either guilt or punishment. (Brady, supra, 373 U.S. at p. 87.) “There are three



2      The abstract of judgment indicates appellant was convicted by plea of violating
section 490.2 (petty theft after a specified prior conviction). The abstract should be
corrected to show the jury convicted him. (People v. Mitchell (2001) 26 Cal.4th 181, 187
[Court of Appeal may correct clerical errors in the abstract of judgment on its own
motion].) We will so direct in the disposition.



                                              6
components of a true Brady violation: The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282.) “Prejudice, in this
context, focuses on ‘the materiality of the evidence to the issue of guilt and innocence.’
[Citations.] Materiality, in turn, requires more than a showing that the suppressed
evidence would have been admissible [citation], that the absence of the suppressed
evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence
to discredit a witness’s testimony ‘might have changed the outcome of the trial’
[citation]. A defendant instead ‘must show a “reasonable probability of a different
result.”’” (People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).)
          The prosecution’s duty to disclose “extends even to evidence known only to police
investigators and not to the prosecutor,” and the prosecutor therefore has a duty to learn
of favorable evidence known to the police. (Salazar, supra, 35 Cal.4th at p. 1042.) At
the same time, the prosecution does not have a constitutional “duty to conduct the
defendant’s investigation for him” or her. (Id. at p. 1049.) Thus, “[i]f the material
evidence is in a defendant’s possession or is available to a defendant through the exercise
of due diligence, then, at least as far as evidence is concerned, the defendant has all that is
necessary to ensure a fair trial, even if the prosecution is not the source of the evidence.”
(Ibid.)
          “Conclusions of law or of mixed questions of law and fact, such as the elements of
a Brady claim [citation], are subject to independent review.” (Salazar, supra, 35 Cal.4th
at p. 1042.) The court should grant a mistrial if it “‘is apprised of prejudice that it judges
incurable by admonition or instruction.’” (People v. Jenkins (2000) 22 Cal.4th 900, 985-
986.) We review the trial court’s denial of a mistrial motion for abuse of discretion.
(People v. Cunningham (2001) 25 Cal.4th 926, 984.)
          In the present case, no Brady error occurred because there was no showing the
prosecution actually suppressed evidence. (See, e.g., Salazar, supra, 35 Cal.4th at
p. 1048 [“the evidence must have been ‘suppressed’ by the government”].) The evidence


                                               7
that there was surveillance video of appellant pushing a cart through the store came from
Detective Steenhausen. His police report stated that Jones showed him footage of
appellant pushing a cart, and he testified to this at trial, but Jones had no independent
recollection of what the video showed. Detective Steenhausen requested the footage.
When he eventually received the CD with the files from Jones, that particular footage of
appellant pushing a cart was not among the files. Appellant acknowledges “[t]he record
is clear that Detective Steenhausen, assigned to investigate the alleged robbery/theft with
which appellant was charged inn [sic] this case, did not receive the video surveillance
coverage of appellant pushing a cart through the store that he was first shown by loss
prevention agent Donna Jones.” Although Jones generally did her best to give officers
complete video files for an incident, she could not recall specifically what she copied in
this case. The detective testified he did not edit or delete any footage. Thus, the notion
that the police or the prosecution actually had the pertinent video file and suppressed it is
not supported.
       Appellant charges that “[n]o effort was made on the part of the prosecution to
obtain the video footage that had not been presented to the defense.” This is untrue
inasmuch as Detective Steenhausen did request the footage from Jones the day after the
incident. It was not until January 2015, when he was trying to copy the footage for the
parties, that the detective discovered he did not have footage of appellant pushing a cart
in the store. In January 2015, appellant had already served a subpoena on Albertsons for
surveillance video, and Albertsons responded that it did not have anything to produce
because its software only retained video for up to 60 days (contradicting Jones’s belief at
trial that Albertsons might still have the video). Accordingly, even if the prosecution had
re-requested the video at that point, or the court had ordered the prosecution to obtain the
video upon appellant’s mistrial motion, Albertsons could not have produced it.
       Moreover, Brady error did not occur here because the showing that the missing
video was both favorable and material is lacking. Detective Steenhausen saw appellant
pushing a cart through the store. There is no evidence at all that the detective or anyone
else saw video showing what appellant asserts it must show—that appellant went toward


                                              8
the cash registers and that he had items in the cart, as opposed to concealed in his bag. In
fact, during a hearing outside the presence of the jury (see Evid. Code, § 402, subd. (b)),
the detective testified he did not see any footage of appellant paying or attempting to pay
for merchandise, and he did not recall any footage of appellant going anywhere near the
cash registers. He further testified that Jones told him there were no surveillance cameras
covering aisle 14, so there should not have been video showing what appellant did with
the Tide pods immediately after he grabbed them from the shelf. In short, the only
evidence about the missing video was that it showed appellant pushing a cart through the
store. This was not particularly favorable (or unfavorable) to appellant, and we see no
reasonable probability of a different result, had such video been found.
2. Appellant’s Ineffective Assistance of Counsel Claim Fails
       In the alternative, appellant argues his trial counsel was ineffective for failing to
(1) try to obtain the missing surveillance footage “from Jones,” and (2) question Jones at
trial about Albertsons’ response to appellant’s subpoena, which contradicted Jones’s
statements that the video should still be available. We also reject this argument.
       Both the federal and state Constitutions entitle criminal defendants to effective
assistance of counsel. (People v. Lucas (1995) 12 Cal.4th 415, 436.) The defendant has
the burden of demonstrating ineffective assistance. (Ibid.) The defendant does this by
showing “counsel’s representation fell below an objective standard of reasonableness” as
defined by “prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S.
668, 688.) “Reviewing courts defer to counsel’s reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” (People v. Lucas, supra, at pp. 436-437.) On direct appeal, we will reverse
for ineffective assistance only when the record “affirmatively discloses that counsel had
no rational tactical purpose for his act or omission.” (People v. Fosselman (1983) 33
Cal.3d 572, 581.)
       The defendant must also demonstrate prejudice. “Prejudice is shown when there
is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the


                                              9
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” (People v. Wharton (1991) 53
Cal.3d 522, 575.)
       First, counsel’s performance was not deficient for failing to try to obtain the
missing footage from Jones. Appellant represented himself until four days before trial,
when the court appointed standby counsel. Appellant subpoenaed the video from
Albertsons when he was representing himself. At the time of trial, Jones no longer
worked for Albertsons, and there is no reason to believe she would have access to
Albertsons’ surveillance video. Any attempt by counsel to try to obtain it from her would
have proven futile. Moreover, there is no reason to believe counsel would have obtained
a different response from Albertsons had he tried to subpoena the video yet again at the
time of trial.
       Second, even assuming counsel should have questioned Jones about Albertsons’
response to the subpoena, it is not reasonably probable the result of the trial would have
been different. Albertsons’ response, consisting of a sworn declaration from a custodian
of records, was not in evidence before the jury, nor was the information that Albertsons
deleted its surveillance video after 60 days. On this point, the jury had only Jones’s
testimony that the video should still be available. According to appellant, this “cast the
burden of production on appellant of any video showing that appellant did not, for
example, place the Tide pods in his soccer bag.”
       In closing argument, defense counsel argued there was missing video that was
important because “that video may show, may answer the question as to whether or not
he did pay for these items or not.” In rebuttal, the prosecutor argued appellant had the
subpoena power and could have obtained the video if he believed it was exculpatory,
because according to Jones, the video still existed. Thus, had defense counsel used
Albertsons’ subpoena response to question Jones, he could have refuted the argument that
the video was available and countered the implication that the video was not exculpatory.
       Still, this would not have led to a more favorable outcome, in light of the strong
evidence against appellant. Both loss prevention agents observed him hide the Tide pods


                                             10
in his bag. Zamora observed him leave the store without paying for them. Appellant
immediately resisted the loss prevention agents when Heranic asked to talk about the
items in his bag. Although he said he had a receipt on his person, no one found a receipt
on him or in his bag, and the only receipt in evidence was the training receipt Heranic
generated. Appellant claimed to have also picked up and purchased cupcakes, but no
other witnesses mentioned cupcakes, and they were not in his bag with the Tide pods.
Without a showing of prejudice, we may not find ineffective assistance of counsel.
3. The Trial Court Did Not Err in Excluding Evidence of Shoplifting Policies
       Appellant lastly contends the court should have permitted him to question Heranic
and Zamora about Albertsons’ shoplifting policies. He asserts he could have impeached
Heranic in particular, who said he had followed Tier One’s policies in apprehending
appellant. We disagree the court erred.
       Appellant refers us to a document he identified as “Albertsons’ Shoplifting
Statement,” which appears in the record as an exhibit to his petition for writ of mandate.
The exhibit consists of one page of what appears to be a multipage document. At the top
of the page, items 4 through 6 of a numbered list appear. Item 5 states: “Approached
the suspect only after the last point of purchase but before he or she exits the store.”
Elsewhere on the page, it states: “If the suspect refuses to cooperate voluntarily or
becomes verbally or physically abusive, let the suspect leave, and call the police. Do not
use physical force of any kind.”
       At trial, Heranic testified that he followed Tier One’s policies in apprehending
appellant. After the court permitted Heranic to answer questions on those policies over
the prosecution’s objections, it heard argument on the prosecutor’s renewed motion in
limine to exclude evidence of Tier One’s policies and Albertsons’ policies on shoplifting.
The prosecution argued the policies were irrelevant to whether a robbery or theft
occurred. And at an earlier hearing on the motion in limine, the prosecution pointed out
that the Albertsons’ policies appellant obtained through discovery applied to Albertsons’
associates, but it was unclear whether they applied to Tier One employees such as
Heranic and Zamora. Appellant argued that, had Heranic followed the policy not to use


                                             11
physical force with suspects, appellant would not have elbowed Heranic, which was the
force on which the prosecution was relying to show robbery. Thus, he asserted Heranic’s
failure to follow policy was somehow a defense to robbery. The court granted the motion
in limine and excluded further evidence of policies.
       We review the court’s evidentiary ruling for abuse of discretion. (People v.
Waidla (2000) 22 Cal.4th 690, 717.) “‘Relevant evidence’ means evidence, including
evidence relevant to the credibility of a witness or hearsay declarant, having 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 court has discretion to exclude
even relevant evidence when “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.) In particular, “the latitude [Evidence Code] section 352 allows for
exclusion of impeachment evidence in individual cases is broad. The statute empowers
courts to prevent criminal trials from degenerating into nitpicking wars of attrition over
collateral credibility issues.” (People v. Wheeler (1992) 4 Cal.4th 284, 296, superseded
on other grounds by Evid. Code, § 452.5.) “[C]ourts may and should consider with
particular care whether the admission of such [impeachment] evidence might involve
undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp.
296-297.)
       The court did not abuse its discretion here. Appellant no longer argues the
Albertsons’ shoplifting policies were relevant to a robbery defense because the jury
acquitted appellant of robbery. Instead, he wanted to use the Albertsons’ policies as
impeachment evidence, but he has not shown their relevance. Heranic testified he
followed Tier One’s policies, not Albertsons. Tier One was a separate security company
that contracted with Albertsons. Appellant fails to demonstrate that Tier One’s policies
were other than as Heranic represented them, and consequently, that there was anything
on which he could have impeached Heranic.



                                             12
       Even assuming there was evidence that Heranic violated Tier One’s policies (or
that he was subject to Albertsons’ policies and violated them), this would represent
impeachment on a tangential issue. Heranic’s confronting appellant outside the store and
handcuffing him had nothing to do with appellant’s conduct inside the store, which
formed the basis for appellant’s petty theft conviction. Substantial evidence showed
appellant took the Tide pods without paying for them, irrespective of how Heranic
apprehended appellant. Accordingly, even if appellant could have impeached Heranic,
policy evidence would have consumed time on a clearly tangential issue. The court was
well within its discretion to exclude it as either irrelevant or as involving undue
consumption of time.
                                      DISPOSITION
       The trial court shall correct the abstract of judgment to reflect that appellant was
convicted by jury trial, not by plea (ante, fn. 2), and shall forward the corrected abstract
of judgment to the Department of Corrections and Rehabilitation. So modified, the
judgment is affirmed.




                                                  FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       RUBIN, J.




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