People v. Rayford

1

THE PEOPLE, Plaintiff and Respondent, v. HEAVEN RAYFORD, Defendant and Appellant.

F084696

California Court of Appeals, Fifth District

March 4, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge.

Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General for Plaintiff and Respondent.

OPINION

HILL P. J.

INTRODUCTION

Defendant Heaven Rayford assisted Mickey Pulley to rob a gas station and take a television (TV) from a retail store. Convicted of two counts of robbery after separate trials, the trial court suspended sentence and placed defendant on a three-year term of probation. Defendant appeals her conviction and argues that the trial court erred in ruling that the conviction of the first robbery count could be used to impeach her should she testify at retrial of the second robbery count. Defendant also argues that the trial court abused its discretion and denied her a fair trial by excluding evidence of her exculpatory statements to police. In her reply brief defendant acknowledges that, by failing to testify, she forfeited any challenge to the court's ruling to allow the prosecutor to impeach with her conviction on the first robbery count.

We agree that defendant forfeited her challenge to the trial court's ruling to allow use of her robbery conviction to impeach and find that the trial court did not abuse its discretion when it excluded her postarrest exculpatory statements as hearsay and not within the hearsay exception for evidence of her state of mind. We affirm the judgment.

PROCEDURAL BACKGROUND

The District Attorney of Kern County filed an information on January 28, 2021, charging defendant and Pulley with three counts of robbery. (Pen. Code, § 212.5, subd. (c); counts 1-3). Defendant pleaded not guilty to all counts. The trial court granted the prosecutor's motion to dismiss count 3 prior to trial on July 27, 2021. On August 9, 2021, a jury convicted defendant of count 1 but could not reach a verdict as to count 2.^[1]After retrial, a jury convicted defendant of count 2 on June 24, 2022.

The trial court suspended imposition of sentence, placed defendant on probation for three years, and ordered her to serve one year in county jail. The court also ordered defendant to pay victim restitution (Pen. Code, § 1202.4, subd. (f)), a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a suspended $300 probation revocation restitution fine (Pen. Code, § 1202.45), $20 in crime prevention fees (Pen. Code, § 1202.5), $60 in criminal conviction assessments (Gov. Code, § 70373), and $80 in court operations assessments (Pen. Code, § 1465.8, subd. (a)(1)).^[2]

Defendant timely appealed on July 25, 2022.

FACTS

I. Count 1-evidence from the June 2021 trial.

On November 2, 2020, Pulley and defendant entered a gas station where L.M. was working as a cashier, and Pulley asked for the manager. Pulley was wearing a black hooded sweatshirt, mask, and purple gloves. L.M. testified that Pulley told her "[n]ot to do anything crazy" and motioned toward his waist, which caused L.M. to believe that Pulley had a gun. Defendant was wearing a yellow hooded sweatshirt and a mask.

When the manager arrived, Pulley spoke with her and asked defendant to watch L.M. while Pulley and the manager went to the back of the gas station. The manager assisted Pulley with placing cartons of cigarettes into trash bags. Video surveillance recordings showed defendant stood by L.M. until Pulley returned with two large black trash bags, and then defendant and Pulley left the gas station. The manager then called 911. Neither defendant nor Pulley paid for the cigarettes.

Video surveillance from a neighboring business recorded defendant and Pulley as they arrived in the area and parked their red vehicle behind an adjacent business in the empty parking lot. The recording also showed defendant and Pulley leaving their red vehicle and walking toward the street in the direction of the gas station. Defendant and Pulley were also recorded as they returned to their vehicle with Pulley carrying black garbage bags.

II. Count 2-evidence from the June 2022 retrial.

On November 6, 2020, K.R. was working as an asset protection associate at a retail store in Kern County. Surveillance recordings showed defendant and Pulley entering the store with a boxed TV in a shopping cart and contacting an employee at the customer service counter. The customer service employee pointed to the service policies, and then defendant and Pulley placed the TV back into the shopping cart and left the counter. After receiving a telephone call from customer service, K.R. watched surveillance cameras and observed defendant and Pulley as they left the customer service area and proceeded toward the electronics department.

After stopping at the TV area, defendant and Pulley removed the TV they brought from their cart and replaced it with a TV from the shelf. Defendant and Pulley then walked through the sporting goods department and toward the front door without stopping either at customer service or a cashier's register.

K.R. approached defendant and Pulley and identified himself as an asset protection officer and asked about the TV. Neither defendant nor Pulley claimed that any employee had given permission for them to remove the TV. K.R. attempted to retrieve the TV from defendant and Pulley. Pulley became violent and aggressively pushed K.R. multiple times as he told K.R. that he was taking the TV and that it was the TV he brought with him into the store. K.R. repeatedly told Pulley that K.R. had observed them switch TVs and they could not leave with the TV that had been removed from the store shelf. The customer service representative who had assisted defendant and Pulley when they first entered the store joined K.R. and also advised them that they could not leave with the TV.

Pulley never claimed that he had permission to exchange the TV or that he had a right to do so. Pulley repeatedly told K.R. that he would "fucking kick [K.R.'s] ass." Concerned for his own safety and that of other customers, K.R. backed away from defendant and Pulley.

Defendant and Pulley took the TV from the store shelf outside the store, and Pulley reentered the store and proceeded back to the area where he had left the TV they brought into the store. Meanwhile, K.R. went outside the store and retrieved the TV taken from the shelf. Defendant took the TV from K.R.'s hands and took it outside again. Pulley arrived back at the store entrance and punched K.R. in the face, chest, arms, and legs.^[3] Pulley ran outside. Neither defendant nor Pulley paid for the TV.

DISCUSSION

I. By not testifying, defendant forfeited her argument that the trial court abused its discretion by granting the prosecutor's motion to impeach her with her robbery conviction on count 1.

Defendant challenges the trial court's ruling that, if she testified, she could be impeached with evidence of her recent robbery conviction." 'It is well established that the denial of a motion to exclude impeachment evidence is not reviewable on appeal if the defendant subsequently declines to testify.'" (People v. Duong (2020) 10 Cal.5th 36, 56-57; see Luce v. United States (1984) 469 U.S. 38, 41-43.) Defendant acknowledges this rule in her reply brief and presents no compelling reason to deviate from settled jurisprudence that defendant must testify to preserve a challenge to the court's tentative ruling on impeachment. (See People v. Collins (1986) 42 Cal.3d 378, 383-388 [adopting rule].) Therefore, we conclude that defendant forfeited any challenge to the trial court's decision to allow defendant to be impeached by her robbery conviction on count 1 as a result of the first trial.

II. The trial court did not abuse its discretion in excluding defendant's statements to law enforcement.

A. Background

At the first trial, the prosecutor prepared a redacted transcript of defendant's interview by Detective Dunn and intended to introduce only statements as to the gas station robbery. Defendant's attorney moved to introduce defendant's statements as to the retail store robbery as well, pursuant to Evidence Code section 1250,^[4] as evidence of defendant's state of mind and that she believed that she had a right to exchange the TV. The trial court ruled that "in light of the testimony that came out yesterday regarding ... the loss prevention agent, I don't see any harm in allowing [defendant's counsel] to get into the [defendant]-Dunn conversation," but then instructed the prosecutor to read that portion of the transcript during her examination of Dunn.

Defendant's statements that were read into evidence by Detective Dunn had been edited to omit any reference to Pulley so as not to violate Pulley's right to confrontation under the Aranda-Bruton doctrine. (See People v Aranda (1965) 63 Cal.2d 518, 530 [admission of a facially incriminating statement of a nontestifying codefendant at a joint trial deprives defendant of their Sixth Amendment right to confront witnesses], superseded by constitutional amendment as stated in People v. Fletcher (1996) 13 Cal.4th 451, 465; Bruton v. United States (1968) 391 U.S. 123, 127-128.) Dunn testified that he spoke with defendant after advising her of her Miranda^[5] rights. When asked about the retail store incident, defendant told Dunn," 'They wouldn't exchange the TV when all I was trying to do was bring ... the TV back'" and" 'exchange it for another one.'" Defendant explained that the TV she brought back to the...