Filed 7/13/15 P. v. Hamilton CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066031
Plaintiff and Respondent,
v. (Super. Ct. No. SCE333297)
KEITH HAMILTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, John M.
Thompson, Judge. Affirmed.
Benjamin Boyce Kington, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Keith Hamilton of petty theft. (Pen. Code, § 484; further
statutory references are to the Penal Code.) Hamilton admitted a prior violent or serious
felony conviction under former section 666, subdivision (b)(1); a prison prior under
former section 667.5, subdivision (b); and two strike priors under section 667,
subdivision (d). Under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the
trial court dismissed Hamilton's strike priors for all purposes. The court sentenced
Hamilton to four years in prison.
Hamilton appeals. He contends (1) the court erred by not instructing the jury sua
sponte with CALCRIM No. 358 to view Hamilton's out-of-court statements with caution
(or, alternatively, his counsel was ineffective for failing to request such an instruction);
(2) the court erred by not instructing the jury sua sponte with CALCRIM No. 332
regarding the evaluation of expert testimony; (3) the court erred by not instructing the
jury sua sponte with CALCRIM No. 302 regarding the evaluation of conflicting
evidence; and (4) a recently enacted initiative, Proposition 47, applies retroactively and
compels resentencing.
During the pendency of this appeal, the trial court resentenced Hamilton as a
misdemeanant under Proposition 47. Hamilton's last contention is therefore moot. The
remaining errors Hamilton identifies were not prejudicial either singly or together. We
affirm the judgment.
FACTS
In August 2013, Hamilton entered a Sears department store in El Cajon,
California. Hamilton was carrying two large plastic trash bags full of material. He went
to the shoe department and picked up an $85 pair of Esker brand shoes. Hamilton took
his own shoes off his feet, put on the Esker shoes, placed his old shoes in the Esker box,
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and put the Esker box back on the shelf. He stood up and walked around the Sears shoe
department.
Vincent Keller and Colleen Dillon, two Sears loss prevention employees,
monitored Hamilton's activities from a back office via security cameras. Keller went to
the sales floor, where he began to follow Hamilton. Keller made eye contact with
Hamilton, and Hamilton saw Keller use his walkie-talkie. Hamilton walked around the
store for a time and finally exited the Sears store. When Hamilton was a few feet outside
the Sears store, Keller confronted him. Keller said, "Sears security. Loss prevention
agent. I see you have some merchandise on that you didn't pay for." According to
Keller, Hamilton replied that he thought Keller might give him the benefit of the doubt
and let him leave with the shoes. Keller and Dillon escorted Hamilton to their back
office and called police. While Keller and Dillon waited for police to arrive, they talked
with Hamilton. Dillon recalled that Hamilton told Keller he left the store because he
"just needed a new pair of shoes."
At trial, Keller and Dillon testified regarding their observations and interactions
with Hamilton. Hamilton testified in his own defense. Hamilton claimed that he saw
Keller, knew he was a security guard, and was merely toying with him by leading him
around the Sears store. Hamilton testified that he did not leave the store and did not
intend to steal the Esker shoes. He said he had money and wanted to buy new shoes.
Hamilton would not confirm Keller and Dillon's account of his statements. Instead,
Hamilton testified that Keller said, "Well, I know you seen me," to which Hamilton
replied, "Yeah. Well that's why I didn't go out there," i.e., leave the Sears store.
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DISCUSSION
I
Hamilton contends the court erred by not instructing the jury sua sponte with
CALCRIM No. 358, including its bracketed portion advising the jury to view evidence of
a defendant's unrecorded out-of-court statement with caution. CALCRIM No. 358
provides as follows: "You have heard evidence that the defendant made [an] oral or
written statement[s] (before the trial/while the court was not in session). You must
decide whether the defendant made any (such/of these) statement[s], in whole or in part.
If you decide that the defendant made such [a] statement[s], consider the statement[s],
along with all the other evidence, in reaching your verdict. It is up to you to decide how
much importance to give to the statement[s]. [¶] [Consider with caution any statement
made by (the/a) defendant tending to show (his/her) guilt unless the statement was
written or otherwise recorded.]."
At the time of Hamilton's trial, the court had a duty to provide such an instruction:
"When evidence is admitted establishing that the defendant made oral admissions, the
trial court ordinarily has a sua sponte duty to instruct the jury that such evidence must be
viewed with caution." (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) During this
appeal, the Supreme Court abrogated this precedent and held that a court should provide
such an instruction only upon request. (People v. Diaz (2015) 60 Cal.4th 1176, 1190-
1191 (Diaz).)
Hamilton argues that Diaz should not apply retroactively to his trial (see Diaz,
supra, 60 Cal.4th at p. 1195 [reserving question of retroactivity]) and, even if it does, his
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counsel was ineffective by not requesting CALCRIM No. 358. We need not decide the
question of retroactivity because we conclude, like Diaz, that any error in not instructing
the jury with CALCRIM No. 358 was harmless even assuming the court was required to
give the instruction sua sponte. (See Diaz, supra, 60 Cal.4th at p. 1195.)
We assess prejudice under the standard for state law errors: "[W]hether it is
reasonably probable the jury would have reached a result more favorable to defendant
had the instruction been given." (Diaz, supra, 60 Cal.4th at p. 1195, citing People v.
Watson (1956) 46 Cal.2d 818, 835-836.) "[A] 'probability' in this context does not mean
more likely than not, but merely a reasonable chance, more than an abstract possibility."
(College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)
Here, like Diaz, the court provided the jury with other instructions that bear on the
jury's assessment of Hamilton's out-of-court statements, including CALCRIM No. 226,
regarding the credibility and believability of witnesses. (See Diaz, supra, 60 Cal.4th at p.
1196.) Like Diaz, more than one witness testified to the incriminating nature of
Hamilton's statements. (See id. at p. 1195.) And, even setting aside Hamilton's
statements, the jury heard persuasive evidence of Hamilton's guilt: his decision to put on
the Esker shoes and leave his old shoes behind, his act of walking around the store in the
Esker shoes, and his subsequent exit from the store. While Hamilton presented a
conflicting version of events, it is not reasonably probable that giving CALCRIM No.
358 would have affected the jury's resolution of this conflict given the state of the
evidence and the instructions the court in fact provided. (See Diaz, supra, 60 Cal.4th at
p. 1195.) For the same reasons, assuming Hamilton's counsel should have requested
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CALCRIM No. 358, Hamilton has not shown any prejudice from any alleged
incompetence by his counsel. (See People v. Dickey (2005) 35 Cal.4th 884, 907.)
II
Hamilton argues the court erred by not instructing the jury sua sponte with
CALCRIM No. 332 regarding the jury's evaluation of expert testimony. CALCRIM No.
332 provides, in relevant part, as follows: "(A witness was/Witnesses were) allowed to
testify as [an] expert[s] and to give [an] opinion[s]. You must consider the opinion[s],
but you are not required to accept (it/them) as true or correct. The meaning and
importance of any opinion are for you to decide. In evaluating the believability of an
expert witness, follow the instructions about the believability of witnesses generally. In
addition, consider the expert's knowledge, skill, experience, training, and education, the
reasons the expert gave for any opinion, and the facts or information on which the expert
relied in reaching that opinion. You must decide whether information on which the
expert relied was true and accurate. You may disregard any opinion that you find
unbelievable, unreasonable, or unsupported by the evidence."
Hamilton contends that Keller and Dillon, by virtue of their training and
experience as loss prevention employees, testified as expert witnesses. Specifically, he
claims their testimony regarding the suspiciousness of Hamilton's appearance and
behavior after entering the Sears store was based on their expertise in loss prevention.
When expert testimony is received in a criminal proceeding, section 1127b
requires the trial court to provide an instruction sua sponte regarding the evaluation of
such testimony. (People v. Reeder (1976) 65 Cal.App.3d 235, 241 (Reeder).) However,
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even assuming Keller and Dillon provided expert testimony, and the trial court was
required to provide CALCRIM No. 332, we conclude any error was harmless.
We assess the prejudicial effect of the court's failure to give CALCRIM No. 332
under the Watson standard: whether it is reasonably probable that a result more favorable
to Hamilton would have occurred absent the error. (Reeder, supra, 65 Cal.App.3d at p.
243.) We begin with the instructions the court in fact gave. In this case, the trial court
provided CALCRIM No. 226, regarding the credibility and believability of witnesses.
The trial court also provided CALCRIM No. 200, which informed the jury they were the
exclusive judges of the facts. Given these instructions, which largely cover the concepts
in CALCRIM No. 332, any error in not providing CALCRIM No. 332 was harmless.
(See People v. Lynch (1971) 14 Cal.App.3d 602, 609-610 [finding error harmless where
the jury was instructed they "were the sole and exclusive judges of the facts" and were
entitled to "weigh the credibility of any witness"].) Moreover, the potentially expert
testimony provided by Keller and Dillon was relatively unimportant when compared to
their percipient testimony regarding Hamilton's actions while in the store. It is thus not
reasonably probable Hamilton would have obtained a more favorable result had
CALCRIM No. 332 been given.
III
Hamilton also argues the court erred by not instructing the jury sua sponte with
CALCRIM No. 302 regarding evaluation of conflicting evidence. CALCRIM No. 302
provides as follows: "If you determine there is a conflict in the evidence, you must
decide what evidence, if any, to believe. Do not simply count the number of witnesses
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who agree or disagree on a point and accept the testimony of the greater number of
witnesses. On the other hand, do not disregard the testimony of any witness without a
reason or because of prejudice or a desire to favor one side or the other. What is
important is whether the testimony or any other evidence convinces you, not just the
number of witnesses who testify about a certain point." While the court has a sua sponte
duty to provide CALCRIM No. 302 where, as here, conflicting evidence is presented, the
court's error was harmless under the circumstances of this case. (See People v. Virgil
(2011) 51 Cal.4th 1210, 1261-1262 (Virgil) [discussing CALCRIM No. 302's predecessor
instruction].)
Again, we assess prejudice under the Watson standard for state law errors. (Virgil,
supra, 51 Cal.4th at p. 1262.) The court provided the jury with several instructions
bearing on its assessment of the evidence, including CALCRIM Nos. 200 ("Duties of
Judge and Jury"), 220 ("Reasonable Doubt"), 222 ("Evidence"), 223 ("Direct and
Circumstantial Evidence: Defined"), 224 ("Circumstantial Evidence: Sufficiency of the
Evidence"), 225 ("Circumstantial Evidence: Intent"), 226 ("Witnesses"), and 301
("Single Witness's Testimony"). These instructions properly guided the jury's evaluation
of the evidence at trial. (See Virgil, supra, 51 Cal.4th at p. 1262 ["Considering the
instructions as a whole, we are satisfied the jury received ample guidance on how to
evaluate conflicting testimony"].)
While none of the instructions specifically told the jury not to make its decision
solely based on the number of witnesses testifying for each side, as Hamilton points out,
nothing in the record shows that the jury was urged to rely on such a rationale. The
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prosecutor's references to "two" witnesses in his closing statement merely described the
evidence at trial; it was not a suggestion to decide the case based solely on that number.
Here, as in Virgil, "[t]he prosecutor did not suggest that the jury should decide
defendant's guilt by comparing the number of witnesses presented by each side, and there
is no evidence the absence of [the instruction] hampered the jury's ability to evaluate the
evidence." (Virgil, supra, 51 Cal.4th at p. 1262 [concluding that analogous error was
harmless].) Hamilton's efforts to distinguish Virgil are unpersuasive. Under the
circumstances of this case, and given the instructions on the evaluation of evidence the
court in fact provided the jury, it is not reasonably probable Hamilton would have
obtained a more favorable result if CALCRIM No. 302 had been given. (See ibid.; see
also People v. Snead (1993) 20 Cal.App.4th 1088, 1097 [analogous error harmless given
other instructions provided by the court].)
We likewise conclude the errors discussed in this section and the previous sections
were not prejudicial, even when viewed together, for the reasons we discuss with respect
to each error. (See People v. Nguyen (2010) 184 Cal.App.4th 1096, 1122; see also
People v. Banks (2014) 59 Cal.4th 1113, 1208.)
IV
After Hamilton's conviction, the electorate passed Proposition 47, which reduced
certain felony offenses to misdemeanors. Hamilton argues that the offense for which he
was convicted, petty theft under section 484, is among the offenses covered by
Proposition 47 under the facts presented at Hamilton's trial. (See § 490.2, subd. (a).)
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Hamilton contends that Proposition 47 is retroactive, that his sentence should be reversed,
and that he should be resentenced as a misdemeanant.
During the pendency of this appeal, Hamilton petitioned the trial court for recall of
his sentence and resentencing under Proposition 47. (§ 1170.18, subd. (a).) The trial
court granted Hamilton's petition and resentenced him as a misdemeanant to 180 days in
jail. Since Hamilton has already obtained the relief he requests, this issue on appeal is
moot. (See Consolidated Vultee Aircraft Corp v. United Automobile Aircraft &
Agricultural Implement Workers of America Local 904 (1946) 27 Cal.2d 859, 862-863;
Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 414, 421; Old National
Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, 467.) We therefore need
not consider it.
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
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