Filed 4/8/15 P. v. Lander CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F067365

                   v.                                                   (Super. Ct. No. BF145621A)

MICHAEL ANTHONY LANDER,                                                              OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
         Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia
A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


        Before Levy, Acting P.J., Kane, J., and Smith, J.
       A jury convicted appellant, Michael Anthony Lander, of second degree burglary
(Pen. Code, § 460, subd. (b)) and petty theft (Pen. Code, § 488). On May 28, 2013, the
court sentenced Lander to a three-year local term.
       On appeal Lander contends the court abused its discretion and denied him certain
constitutional rights when it denied his request to recall a witness. Lander also asks this
court to review the sealed transcript of an in camera hearing to determine if the trial court
erred in withholding documents the defense had subpoenaed. We affirm.
                                           FACTS
       At Lander’s trial, Tyler Work testified that he was employed as an Asset
Protection Specialist at a Target store in Kern County. As part of his duties he monitored
from his office over 150 cameras that are located inside and outside of the store in order
to locate people attempting to steal from Target and to apprehend them. Sometimes
Work also walked the floor.
       On December 7, 2012, at approximately 9:25 p.m., he was viewing cameras in his
office when he saw Lander whom he recognized from having seen him in the store on at
least 15 previous occasions. As Work watched Lander he saw him go to the electronics
department and put a Blu-ray Player in his cart. Next Lander went to where the
televisions were located and placed a 37-inch flat screen television in his cart. Lander
then took the cart to a fire exit and left the store through the exit, triggering an alarm. A
video camera outside the store showed Lander running from the Target store and a white
vehicle driving off in the same direction as Lander.
       After Work testified and was cross-examined by the defense, he was excused
subject to being recalled. After a break, defense counsel asked the court for permission
to recall Work in order to cross-examine him with personnel records he received from
Target regarding a reprimand Work received for an incident on December 4, 2012.
According to defense counsel’s offer of proof, on that date, while following a theft

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suspect on the surveillance cameras, Work failed to maintain constant surveillance of the
suspect. When the suspect was stopped he was not in possession of any Target
merchandise.1
       When asked by the court why the reprimand was relevant defense counsel argued
that it showed “that when looking at surveillance, Mr. Work makes errors.”
       In denying the request the court stated,

              “I’m going to deny the request to call Mr. Work for that purpose for
       two reasons: Number one, I find it irrelevant; number two, it’s something
       that could have been gone into in cross-examination. Counsel, while not
       disclosing that information to the People, elected, for whatever reason, not
       to go into it, so I would also deny the request to produce that evidence
       because it was not disclosed in a timely basis.”
       Bakersfield police officer Scott Roberts then testified, in pertinent part, that he
responded to the report of a theft at the Target store. Work told Officer Roberts that
Lander committed the theft and provided a description of him. The officer showed Work
a picture of a man and Work identified the man as Lander.
                                       DISCUSSION
The Recall of Witness Work
       Lander contends that the reprimand Work received from Target was relevant as
impeachment evidence because it had the potential to demonstrate to the jury that Work

1       The reprimand indicates that on December 4, 2012, Work was involved in the
surveillance and apprehension of a suspected shoplifter who was detained outside the
store and found not to be in possession of any store merchandise. During the surveillance
Work lost sight of the suspect when he entered aisle B16. According to the reprimand
this violated the store’s policy that required that prior to any “productive merchandise
recovery” certain steps should be “completed” including maintaining sufficient
observation of a suspect. By not doing so, Work “failed to ensure that the [suspect] did
not dispose of, or remove, merchandise from their person that had been previously
concealed.” The reprimand also indicates that after being contacted, the suspect
explained to Work that he had removed the merchandise in the aisle where Work lost
sight of him. Work went to the location indicated by the suspect and found the
merchandise there.
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was not proficient at his job and incorrectly accused another person of theft. Lander
further contends that the reprimand had a direct bearing on Work’s credibility with
respect to his identification of Lander as the man who took the Blu-ray Player and the
television from the store. Thus, according to Lander, by denying his request to recall
Work the court effectively denied him his constitutional rights to present a defense, to
confront witnesses, to a fair trial, and to due process. Lander further contends that
because Work was the main witness for the prosecution and he identified Lander as the
man who took merchandise from the store, Lander was prejudiced by the court’s denial
of his request to recall Work. Alternatively, he contends his defense counsel denied him
effective representation by his failure during cross-examination to impeach Work with
the reprimand. We will reject these contentions.

               “The abuse of discretion standard of review applies to any ruling by
       a trial court on the admissibility of evidence. [Citation.] This standard is
       particularly appropriate when, as here, the trial court’s determination of
       admissibility involved questions of relevance …. [Citation.] Under this
       standard, a trial court’s ruling will not be disturbed, and reversal of the
       judgment is not required, unless the trial court exercised its discretion in an
       arbitrary, capricious, or patently absurd manner that resulted in a manifest
       miscarriage of justice. [Citation.]” (People v. Guerra (2006) 37 Cal.4th
       1067, 1113.)

              “‘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 main issue in the instant case was whether Lander was the man Work saw on
December 7, 2012, taking Target property out of the store through an emergency exit.
Work’s earlier failure to maintain sufficient visual surveillance of a suspect to ensure he
still possessed store merchandise when apprehended did not involve dishonesty. It also
did not have the tendency to prove or disprove that Work was incorrect in his
identification of Lander as the man who stole the Blu-ray Player and television. Thus, we

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agree with the trial court that the reprimand Work received was not relevant to any issue
before the court.
       Lander contends that evidence of the reprimand was relevant “because it had the
potential to demonstrate to the jury that Mr. Work was not proficient at his job and
incorrectly accused another person of theft.” Lander is wrong. All the reprimand shows
is that on one occasion Work was involved in a merchandise recovery incident that was
not successful because Work failed to maintain continuous surveillance of a suspected
shoplifter. It does not necessarily follow from this one reprimand that Work was not
“proficient at his job” as Lander contends. In any event, Lander fails to explain how
Work’s failure to maintain continuous surveillance of a suspected shoplifter on one
occasion undermined his identification of Lander, whom he had seen in the store on
numerous previous occasions. Therefore, since the reprimand Lander sought to cross-
examine Work about was not relevant, the court did not abuse its discretion when it
denied Lander’s request to recall Work; nor did the court’s ruling deny Lander his
constitutional rights to present a defense, to confront witnesses, to a fair trial, or to due
process.
       There is also no merit to Lander’s ineffective assistance of counsel claim. “‘[I]n
order to demonstrate ineffective assistance of counsel, a defendant must first show
counsel’s performance was “deficient” because his “representation fell below an
objective standard of reasonableness ... under prevailing professional norms.”
[Citations.] Second, he must also show prejudice flowing from counsel’s performance or
lack thereof. [Citations.] Prejudice is shown when there is a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” [Citations.]’ [Citation.]” (In re Avena (1996) 12 Cal.4th 694, 721.) “If it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

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prejudice, which we expect will often be so, that course should be followed.” (Strickland
v. Washington (1984) 466 U.S. 668, 697.)
       Since we have already concluded that the evidence of Work’s reprimand was not
relevant to any issue before the court, it follows that Lander was not prejudiced by the
failure of defense counsel to cross-examine Work regarding this reprimand.
Accordingly, we also reject Lander’s ineffective assistance of counsel claim.
Review of the In Camera Proceedings
       On March 28, 2013, Lander filed a Motion for Release of Records to Defense of
Materials and Documents Sought by Subpoena Duces Tecum seeking the release of
Work’s personnel records Lander subpoenaed from Target.
       On April 11, 2013, the court agreed to review the records in camera and release to
the defense any relevant records. At an in camera hearing on April 16, 2013, the court
ordered all the records released to the defense.
       Lander asks this court to conduct an independent review of the sealed transcript of
the in camera hearing during which the court released Work’s personnel records to
defense counsel to determine if the court erred in withholding any of the subpoenaed
records. (Cf. People v. Mooc (2001) 26 Cal.4th 1216 [explains procedure to be followed
for discovery of police personnel records].) The record, however, indicates that the court
provided defense counsel all the records that were produced pursuant to defense
counsel’s subpoena and that the April 16, 2013, in camera hearing was not transcribed.
Thus, there is nothing for this court to review.
                                      DISPOSITION
       The judgment is affirmed.




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