Filed 8/27/21 P. v. Ackerman CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

GERALD FREDERICK ACKERMAN,

 Defendant and Appellant.

 G060190

 (Super. Ct. No. 19CR000572)

 O P I N I O N

Appeal from a judgment of the Superior Court of Monterey County, 

Andrew G. Liu, Judge. Affirmed.

Jonathan D. Roberts, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, 

Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and 

Respondent.

* * *
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INTRODUCTION

After being stopped for shoplifting, defendant Gerald Frederick Ackerman 

drove his car toward the store’s personnel. He was convicted of two counts of assault 

with a deadly weapon. Defendant challenges his convictions because the trial court 

excluded evidence that several years earlier, the same asset protection employee who 

stopped defendant had extorted money from another shoplifter. Any error in excluding 

that evidence was harmless because there was no reasonable probability that defendant 

would have obtained a more favorable verdict if the evidence had been admitted. 

Therefore, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On January 14, 2019, defendant showed a receipt for various items in his 

shopping cart as he exited a Home Depot store in Salinas, California. However, 

defendant had not paid for the items. Rather, he had received the receipt from another 

person who had purchased the same items. “Double dipping” is a common way for 

people to shoplift.

Raul Correa, who worked in asset protection at the Home Depot in Salinas, 

identified surveillance camera footage from the store showing defendant stealing the 

items. 

Correa saw defendant at the same Home Depot store the next evening, 

January 15, 2019. Correa identified himself and asked defendant to accompany him to 

the loss prevention office to discuss a theft committed the previous day. Defendant said,

“‘Yeah. I’m sorry for taking that yesterday.’” 

In the office, Correa called the nonemergency number for law enforcement, 

and defendant provided his identification to Correa. Another Home Depot employee, 

Eric Johnson, was present while Correa and defendant were in the loss prevention office, 

pursuant to the store’s policy. At about 9:30 p.m., defendant got up and left the office. 
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Correa and Johnson followed defendant out of the store; neither told defendant to stop or 

physically tried to stop him or block his path. Correa was wearing dark clothing; Johnson 

had an orange Home Depot apron over his clothing.

Once they were outside, Correa again called the nonemergency law 

enforcement number. Defendant got into a PT Cruiser parked directly in front of the 

store. The license plates on the car were covered with paper dealer plates; Correa lifted

the paper and read the actual license plate number to law enforcement. Audio recordings 

of Correa’s conversation with law enforcement were played at trial.

While Correa and Johnson were standing behind defendant’s car, defendant 

started the car and drove away. Defendant made a large U-turn and, speeding up and 

revving his engine, drove directly toward Correa and Johnson. Correa and Johnson both 

jumped out of the way of the moving car. Defendant drove out of the parking lot. Correa 

identified surveillance camera footage from the store’s parking lot showing the car

driving toward Correa and Johnson, and the two men moving out of the way.

Defendant was stopped by the police later that night; various home 

improvement tools were found in the trunk of the car. 

Defendant was charged in an amended information with two counts of 

assault with a deadly weapon (counts 1-2; Pen. Code, § 245, subd. (a)(1)); one 

misdemeanor count of shoplifting (count 3; id., § 459.5, subd. (a)); and one misdemeanor 

count of driving with a suspended or revoked license (count 4; Veh. Code, § 14601.1, 

subd. (a)). The information alleged that defendant had served four prior prison terms 

(Pen. Code, § 667.5, subd. (b)) and, as to count 4, alleged that defendant had two prior 

convictions for violating Vehicle Code section 14601.1, subdivision (a).

A jury found defendant guilty of all charges. In a bifurcated proceeding, 

the trial court found all allegations regarding defendant’s prior prison terms and Vehicle 

Code convictions to be true. 
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The trial court sentenced defendant to a total of five years in prison on 

counts 1 and 2, with consecutive sentences of six months each on counts 3 and 4. The 

trial court struck the Penal Code section 667.5 enhancements. Defendant appealed. 

DISCUSSION

Defendant argues on appeal that the trial court erred by precluding him 

from presenting the testimony of a witness who would have challenged the credibility of 

one of the prosecution’s key witnesses. We review the trial court’s exclusion of evidence 

for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.) 

Prior to trial, the prosecution moved in limine to exclude testimony from 

Cynthia Botero based on late discovery and pursuant to Evidence Code section 352. 

Alternatively, the prosecution asked that, if Botero were permitted to testify, it should be 

permitted to impeach her with her previous convictions.1

According to defendant’s trial counsel, Botero would testify that she was 

stopped by Correa for shoplifting at the Salinas Home Depot four or five years earlier, 

and that Correa agreed not to report the matter to the police if Botero paid him $100 cash, 

which she did because she was then on felony probation. Defense counsel argued that 

Botero’s testimony “goes directly to Raul Correa’s credibility if believed.” 

The trial court made the following ruling: “[U]nder [Evidence Code 

section] 352, this really strikes me as the kind of situation where we’re getting into what 

courts have referred to as ‘mini trials,’ where then the defense will be offering evidence 

of this instance with Ms. Botero, the People would be then trying to counter that evidence 

1

 Botero had been convicted of the following crimes: providing false identification to a 

peace officer, a misdemeanor, on April 17, 2012 (Pen. Code, § 148.9, subd.(a)); two 

counts of using forged, expired, or revoked access cards or card information, 

misdemeanors, on August 30, 2012 (id., § 484g, subd. (a)); making a false report of a 

crime, a misdemeanor, on August 30, 2012 (id., § 148.5); receiving stolen property, a 

felony, on March 20, 2014 (id., § 496, subd. (a)); and destroying or concealing evidence, 

a misdemeanor, on August 27, 2014 (id., § 135).
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with whatever they can find. [¶] The defense has some corroboration, although it’s 

minimal, its relevance, its materiality, all that I think is outweighed by the potential for 

undue delay and prejudicial information . . . . [¶] [M]aybe this is just worth noting and 

it’s not necessarily factoring into my decision is that according to the People Ms. Botero 

has a lengthy record of dishonesty . . . . [¶] So I guess I am considering that to some 

degree when I think about the probative value of this evidence and the materiality of it. 

[¶] So I’m going to grant the People’s motion to exclude defense witness Cynthia 

Botero.”

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Defendant contends the trial court erred in excluding Botero’s testimony 

because it would have been relevant to the defense that Correa was lying about defendant 

attempting to hit him with his car. Botero’s testimony would have challenged Correa’s 

credibility. Defendant further contends Botero’s testimony would not have confused the 

issues or created a mini-trial because Botero would not have challenged her previous 

convictions, that she was shoplifting from Home Depot when stopped by Correa, or that 

she had been on probation at the time. 

As the court explained in People v. Minifie (1996) 13 Cal.4th 1055, 

“‘Presentation of evidence at the heart of the defense would not have represented an 

“undue” consumption of time. There was no risk of prejudice associated with the 

evidence. . . . Evidence that [defendant] might have had reason to fear for his life would 

2

 The court initially relied additionally on Evidence Code sections 787 and 788 in 

excluding Botero’s testimony. “So first of all, I’m concerned about Evidence Code 787 

which [provides:] . . . [‘]Subject to Section 788, evidence of specific instances of his 

conduct relevant only as tending to prove a trait of his character is inadmissible to attack 

or support the credibility of a witness.[‘] [¶] And [Evidence Code section] 788 has to do 

with use of prior felony convictions. [¶] So this strikes me as a specific instance of Mr. 

Correa’s conduct being shown or offered to show that he’s got the character of dishonesty 

with respect to those that he encounters maybe in his work, to attack or support his 

credibility. Obviously to attack. [¶] So I think [Evidence Code section] 787 requires 

preclusion of this evidence.” The court later noted for the record that Evidence Code 

section 787 cannot be used in criminal matters. 
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not have “confused the issue.” It would have further illuminated the situation the jury 

was required to evaluate.’” (Id. at pp. 1070-1071.) We agree with this principle.

Furthermore, “reliance on Evidence Code section 352 to exclude evidence 

of marginal impeachment value that would entail the undue consumption of time 

generally does not contravene a defendant’s constitutional rights to confrontation and 

cross-examination.” (People v. Brown (2003) 31 Cal.4th 518, 545.) 

The Attorney General relies on People v. Jennings (1991) 53 Cal.3d 334, 

371-372, in which the California Supreme Court held the trial court did not err by 

denying the defendant’s request to impeach certain prosecution witnesses with evidence 

they failed to declare income derived from prostitution when applying for county 

benefits. The court concluded the impeachment evidence was “only slightly probative of 

[the witnesses’] veracity,” involved a collateral matter, and could have resulted in an 

undue consumption of time if the witnesses asserted their rights under the Fifth 

Amendment of the United States Constitution, which could require testimony by county 

welfare officials. (People v. Jennings, supra, at pp. 371-372.) People v. Jennings is 

distinguishable from the present case because the credibility of one of the primary 

prosecution witnesses was not a collateral matter, and there was no indication Botero 

would refuse to testify or that additional evidence relative to Botero’s convictions would 

be required.

Nonetheless, we need not decide whether the trial court erred in excluding

Botero’s testimony, because any error would be harmless. “Error under Evidence Code 

section 352 is evaluated under the standard of harmless error set forth in People v. 

Watson (1956) 46 Cal.2d 818, 836. [Citations.] Under the Watson standard, reversal is 

required only if ‘it is reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of the error.’” (People v. Orey (2021) 63 

Cal.App.5th 529, 549.)
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Defendant contends that if Correa’s credibility were cast into doubt, there 

would have been a reasonable probability that at least one juror would have voted to 

acquit defendant on the charges of assault with a deadly weapon. We disagree. Even if 

Correa’s testimony that defendant drove toward him in the Home Depot parking lot were 

discounted, Johnson’s testimony, the video surveillance footage, and the audio recording 

of Correa’s real-time communication with law enforcement were more than sufficient to 

support defendant’s convictions on counts 1 and 2. There is no reasonable probability

that defendant would have obtained a more favorable result if Botero had been permitted 

to testify.

DISPOSITION

The judgment is affirmed.

FYBEL, ACTING P. J.

WE CONCUR:

GOETHALS, J.

ZELON, J.*

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.