APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge. (Super. Ct. No. BF127977A)
The opinion of the court was delivered by: Franson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
David Michael Vinson stands convicted, following a jury trial, of committing petty theft after having previously been convicted of a theft offense. (Pen. Code,*fn2 § 666.) Following a bifurcated court trial, he was found to have served two prior prison terms. (§ 667.5, subd. (b).) Sentenced to a total of five years in prison and ordered to pay various fees and fines, he now appeals. For the reasons that follow, we affirm. In the published portion of this opinion, we conclude the amendment to section 666 that became effective on September 9, 2010, applies retroactively. In the unpublished portion, we reject Vinson's claims of insufficient evidence, and trial and sentencing error.
On May 23, 2009, Teresa Williams participated in a sporting event at the Rollerama in Bakersfield. At about 11:00 p.m., she and some friends went across the street to the Buckhorn, a bar with a pool table. Williams, who was preparing to play pool with Vinson, put her purse down on a table within arm's reach behind herself. As she bent over to rack the balls, Vinson hurriedly walked toward the men's bathroom, which was about six feet from the table.
Around this time, David Zulaica, one of Williams's friends, went into the men's room (a small, one-person arrangement) and noticed a red purse in the sink. While Zulaica was inside, Vinson entered, excused himself, and went right back out. When Zulaica exited the bathroom, Vinson was waiting outside and entered immediately. Zulaica started asking around and learned the purse belonged to Williams. Zulaica offered to retrieve it as soon as the bathroom was not in use.
Zulaica kept an eye on the bathroom, as he wanted to make sure he got in there right away. Nobody went in or out until Vinson exited after about five to 10 minutes. Zulaica then went in and looked for the purse. He eventually found it underneath the trash bag inside the trash can. He took it to Williams, and she identified it as hers. Upon opening it, she discovered that her two lipsticks were still inside, but everything else was missing: two credit cards, an I.D., a cell phone, and around $150 in cash that was predominantly folded together.*fn4 Williams never gave anyone permission to take her purse or to take anything out of it. During the time she was racking the pool balls and Vinson was walking to the men's bathroom, nobody else came behind Williams or got near the table with the purse. Had anybody gone into the bathroom area, Williams would have been able to see their path. Nobody traveled that path other than Vinson and, later, Zulaica.
Williams, Zulaica, and some friends went outside to confront Vinson, who was in the alley by the exit. Words were exchanged, and someone called the police. When the police arrived, Vinson quickly tried to leave the scene by going down the alley. Upon arriving at the Buckhorn, Bakersfield Police Officer Cooper and another officer saw a group of females standing outside. As soon as the officers walked up, one of the women said, "There he is. There he is. He's getting away." She pointed out a male walking westbound on 34th toward Jewett Avenue. Cooper quickly ascertained that some items had been stolen inside the bar and, within a minute, went in the direction that had been pointed out to him. Upon reaching Jewett, he did not see anyone in the area. Knowing what the missing items were, he started looking in the only trash can in the area. In it were Williams's driver's license and credit cards.
Cooper and the other officer continued walking and located Vinson, the same person pointed out to them upon their arrival at the Buckhorn. Vinson was standing in a lit carport. When Vinson was searched, a wallet was pulled out of his pocket. Cooper saw currency taken out of the wallet by the other officer; there was $150 in neatly placed bills, and a small amount that was crumpled up. There was no foot traffic in the area, and Cooper did not see anyone other than Vinson on the entire path Cooper traveled.
The police returned to Williams 20 to 30 minutes later with her driver's license and what she recalled as being one of her credit cards.*fn5 They also had cash that Williams recognized. It was the same denominations - twenties and possibly a ten - and folded the same way as she remembered from her purse.
The defense presented photographs of the exterior and interior of the Buckhorn.
Vinson contends the trial court committed prejudicial error by making certain evidentiary rulings concerning the conduct of, and report written by, the second officer present at the scene with Officer Cooper. We find no cause for reversal.
Former Bakersfield Police Officer Luff was the officer present with Cooper. Luff's name was never provided to the jury.
Luff was the subject of dueling motions in limine. Vinson sought exclusion of any use of or reference to the report written by Luff in this case. Vinson represented that Luff had recently been forced to resign from the police force as a condition of the dismissal of sexual assault charges against him. Vinson further represented that the district attorney's office had refused to provide investigative reports concerning the charges against Luff, on the basis that since Luff would not be called as a witness in Vinson's case, the prosecution was not required to provide impeachment material, even though Luff authored the report on which other officers might rely for their testimony in this case.
The People, by contrast, moved to exclude as irrelevant and prejudicial any evidence regarding criminal charges against Luff. The People argued that since the prosecution would not be calling him as a witness, it would prejudice the jury against the People's case and confuse the issues to allow the defense to impeach Luff in abstentia.
At the hearing on the motions, the trial court's tentative position was that if Luff did not testify, then the charges against him could not be used to impeach him. Furthermore, any material could be used to refresh a witness's recollection, and that material did not come into evidence and need not even be truthful. In response, defense counsel represented that Luff submitted a false report about his alleged sexual misconduct. Defense counsel argued that even if Luff's report in the present matter was used only for refreshing memory, the jury needed to know that it was from a person who was known in the past to have made false statements in his reports. The court responded that defense counsel would not be allowed to impeach the report, which would not be admitted into evidence. Moreover, although the defense could impeach a witness's testimony, to ask the witness whether he or she was relying on a report that was authored by a discredited officer would not be proper impeachment of the witness.
The trial court denied the defense motion to exclude use of Luff's report, except to refresh a witness's recollection, but granted the People's motion to exclude any evidence concerning the criminal charges against Luff. The court suggested, however, that the subject might be revisited after it heard Cooper's testimony.
At trial, Cooper testified on direct examination that when a wallet was pulled out of Vinson's pocket by the other officer, Cooper saw currency taken out by the other officer. When asked how much, Cooper responded, "There was $150 in neatly placed bills inside of the wallet and also an unknown amount to me taken out that was crumpled and placed in the wallet." The crumpled amount was small. On cross-examination, defense counsel established that Cooper had a report of the incident in front of him. When asked whether he was relying on his memory to testify, Cooper responded, "My memory and some of the report that I have preread." Defense counsel elicited that Cooper did not personally write the report, but the trial court sustained a relevancy objection as to the author. Cooper testified that he was also present at the time in question, and that the report did indeed refresh his memory. Cooper testified that everything in the report was correct, but that he did not do anything to verify the portion of the report that he read, such as speaking to Williams.
Specifically with respect to the currency, defense counsel elicited on cross-examination that Cooper and the other officer were under a lit carport when the money was pulled out of the wallet. When asked how much currency was found, Cooper replied that he was not sure of the exact amount. Asked the denominations of the money, Cooper said he could refer to the report written by the other officer. Asked if that would refresh his memory, Cooper responded, "I don't have any memory of it. [¶] ... [¶] I was there as far as when he counted it and everything."
Defense counsel further elicited that it was the police department's standard procedure not to book currency or other such items into evidence, but rather, if "the loss" was located, to immediately release it back to whom it belonged. The report was the record of it; everything was approved by the sergeant who was listed on the report. When the other officer returned the property to Williams, Cooper was not with Williams, but instead was standing next to the patrol car in which Vinson was seated. The prosecutor's relevancy objections were sustained when defense counsel attempted to ask whether the behavior of the females and the other officer was friendly, and whether someone was taking pictures of the officer posing with some of the females.
Defense counsel then asked Cooper if he was saying that, other than the sergeant telling him it was all right to release the items to Williams, there was no other reason for the return of those items to her that night. Cooper responded that the credit cards and driver's license were in her name, and she told the other officer the exact denomination of the money taken and found on Vinson. Defense counsel elicited that Cooper did not hear ...