Filed 1/17/18 P. v. Berumen CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed.

David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted Richard Anthony Berumen of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count 1) and found true an allegation he personally inflicted great bodily injury in commission of the offense (Pen. Code, § 12022.7, subd. (a)). The jury also convicted him of hit and run with injury (Veh. Code, § 20001, subd. (a); count 2) and reckless driving resulting in serious injury (Veh. Code, § 23105, subd. (a); count 3). In a bifurcated proceeding, Berumen admitted he was previously convicted of unlawfully taking a vehicle (Pen. Code, § 666.5, subd. (a)) and had three prison priors (Pen. Code, §§ 667.5, subd. (b), 668). The court sentenced Berumen to an aggregate term of nine years eight months in state prison.[1]

Berumen contends on appeal (1) police officers acted in bad faith and violated his federal due process rights under California v. Trombetta (1984) 467 U.S. 479 [104 S.Ct. 2528, 81 L.Ed.2d 413] (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 [109 S.Ct. 333, 102 L.Ed.2d 281] (Youngblood) by failing to preserve the vehicle involved in the offenses and the court erred in refusing to give a requested remedial jury instruction based on the court's determination the officers did not act in bad faith; (2) even if the failure to preserve the vehicle did not violate federal due process, the court abused its discretion by not giving the remedial instruction; (3) the court erred in refusing to give the final paragraph of CALCRIM No. 226 about deliberately false testimony; and (4) the cumulative errors were prejudicial and denied Berumen a fair trial in violation of federal due process. We disagree with each of Berumen's contentions. We conclude there was substantial evidence to support the trial court's determination the police officers did not act in bad faith in failing to preserve the vehicle and the court did not err in declining to give the requested jury instructions. Because we conclude there were no prejudicial errors, we affirm the judgment.

BACKGROUND

A

B.H. called 911 on November 23, 2013, to report his 2004 Toyota Sienna minivan was stolen from a parking lot in Escondido, California, while he was in a convenience store.

B

Three days later, B.H. called 911 again saying he was following a person driving his stolen minivan. B.H. described the minivan and said the individual driving the minivan was parked in a construction area parking lot. B.H. described the driver as "a Mexican guy wearing a yellow vest like he's a city worker." B.H. saw the minivan exit the parking lot and turn onto Valley Parkway before he lost sight of it. When asked if he could identify the driver, B.H. said "he was a Mexican guy and I believe he had uh a gray bushy mustache." B.H. thought the driver was 50 or 55.[2]

C

A police officer, Officer W., heard through dispatch that the stolen minivan was possibly traveling westbound on Valley Parkway. Officer W. positioned his cruiser between Valley Parkway and Grand Avenue so he could see the traffic on both streets and attempt to intercept the stolen vehicle. Officer W. saw a minivan matching the description traveling westbound on Grand Avenue. Officer W. followed the minivan and got close enough to see the driver was alone, appeared Hispanic or White, and was wearing a baseball cap. He also had a "pretty distinctively shaped nose."

When two other marked patrol vehicles approached the area from different directions, the driver of the minivan made an abrupt right turn, accelerated rapidly, and crossed into opposing traffic lanes across the double yellow line. Officer W. stated, "the vehicle was traveling in excess of 70 miles per hour on the wrong side of the roadway through controlled intersections with red lights." Officer W. did not engage in a high-speed chase for public safety and liability reasons. Officer W. came to an intersection and saw a collision between the minivan and a red Kia. Dust and debris were still in the air.

The driver of the minivan had fled, but bystanders told Officer W. they saw the driver running through a nearby apartment complex. They also pointed out a construction vest the suspect discarded as he fled. Officer W. also noticed a baseball cap on the street about three feet from the open driver's side door.

D

A second responding officer, Officer M., ran in the direction the bystanders believed the driver of the minivan fled. When Officer M. reached a flood control channel, he saw a man jump the fence separating the channel from the rear of the apartment complex and run along the edge of the channel. Officer M. ran toward the suspect on the opposite side of the fence. The suspect, who was wearing a gray T-shirt and blue jeans, jumped back over the fence and ran away from the channel.

Based on information provided from residents of a nearby apartment complex, Officer M. apprehended the suspect, later identified as Berumen, in a carport, which was located 200 to 300 yards from the scene of the collision. Berumen's face was dirty, he was sweating, his jeans had a hole in the left knee area, and his knee was red and swollen. He was the person Officer M. had seen running in the flood control area. As Berumen was taken into custody, he was breathing heavily and sweating profusely. Berumen had scratches on his forehead, forearms, and torso.

A responding officer held Berumen still as another officer took Berumen's photograph at the time of the arrest. The officer who held Berumen for the photograph did not go to the scene of the collision.

E

Officer W. assisted with the evidence collection. He took a DNA swab inside the windshield on the driver's side because he noticed a "very distinctive circular pattern [where] it appeared a person's head had struck that location." The distinctive breakage pattern of the window also indicated this was the point of impact.

Officer W. also took DNA swabs of the lower left portion of the driver's side dashboard near the steering wheel, where it appeared someone's knee had gone through the dash area. He removed the minivan's rear-view mirror and a portion of the deployed driver's side airbag. Officer W. testified he had no contact with anything or anyone at the collision scene before he took the DNA swabs.

Other DNA swabs were taken from the owner of the minivan, the steering wheel of the minivan, Berumen, and the baseball cap.

Officer W. testified he wore gloves while he collected the DNA swabs. At some point, he was photographed at the collision scene with an ungloved hand in the vehicle, which he stated was near the end of the collection of evidence.

Officer W. was shown a cell phone photograph of Berumen by another officer while Officer W. was still at the collision scene. Officer W. concluded it was the same person he saw driving the minivan based on his distinctive silhouette, including the prominent nose.

A photograph showed Officer W. was at the scene of the collision near the officer who had taken Berumen's arrest photo. Officer W. was wearing gloves and holding a DNA collection kit. Officer W. had already bagged several items of evidence. The officer denied any physical contact with Officer W. when he showed Officer W. the photograph on his cell phone.

F

The police traffic investigator concluded the collision occurred while the minivan was traveling eastbound in the westbound lanes. The evidence showed the minivan struck the Kia, brought the Kia to a complete stop, and then pushed the Kia backwards into an electrical pole where it ricocheted and stopped in the middle of the roadway. The debris at the collision scene indicated the Kia hit the pole at a very high rate of speed. The minivan sustained significant front-end damage from a head-on collision.

The driver of the Kia suffered fractures of the vertebrae in his cervical and lumbar spine as well as fractures of his ribs and scapula. He also suffered injuries to his spleen and lungs. He was hospitalized for three weeks, including treatment on a ventilator for a week to 10 days. The driver of the Kia had no memory of the collision and, at the time of trial, had lingering memory and balance problems. He had chronic headaches and still walked with a limp. He had not been able to work since the collision.

G

A forensic analyst determined the DNA found on the windshield contained a mixture of DNA from at least three individuals, but Berumen was the only major contributor. The analyst was not able to collect enough DNA from the baseball cap for comparison. The DNA swabs taken from the steering wheel and the airbag were not submitted for testing.

H

In his defense, Berumen presented testimony from a forensic DNA consultant who agreed Berumen was a major contributor to the DNA found on the windshield, but denied there was a "significant" amount. She testified because of the small quantity of DNA in the sample, its presence could be attributed to primary, secondary, or tertiary transfer. On cross-examination, she agreed the possibility of transfer would be reduced if the swab was collected from the windshield before any officers who had contact with Berumen returned to the scene of the collision.

DISCUSSION

I

Trombetta Motion

A

"The federal constitutional guarantee of due process imposes a duty on the state to preserve 'evidence that might be expected to play a significant role in the suspect's defense.' [Citation.] In other words, that evidence 'must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.' " (People v. Montes (2014) 58 Cal.4th 809, 837 (Montes), quoting Trombetta, supra, 467 U.S. at pp. 488, 489.) "The state's responsibility is … limited when the defendant challenges the failure to preserve evidence 'of which no more can be said than that it could have been subjected to tests' that might have helped the defense. ([Youngblood, supra, 488 U.S. at p. 57].) In such a case, unless the defendant can show 'bad faith' by the police, failure to preserve 'potentially useful evidence' does not violate his due process rights." (People v. DePriest (2007) 42 Cal.4th 1, 42.)

We review the trial court's denial of a Trombetta motion for substantial evidence. (Montes, supra, 58 Cal.4th at p. 837.) We review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence to support the court's decision. (People v. Alvarez (2014) 229 Cal.App.4th 761, 774 (Alvarez).) The mere fact the record might also support a contrary finding does not warrant reversal of the judgment. (Ibid.)

In this case, Berumen concedes on appeal the loss of the minivan did not warrant dismissal or exclusion of evidence. However, he maintains the police acted in bad faith and the federal due process mandated a remedial jury instruction, which would have allowed the jury to infer the lost minivan may have contained exculpatory evidence. We disagree.

B

We begin with a review of the evidence regarding the loss of the vehicle.

During a break in trial, a police traffic collision investigator (collision investigator) informed the court that when he learned the minivan had been released, he went to a tow yard on December 6, 2013, to take additional photos of the minivan. The prosecutor then discovered the photographs were produced from the police department on what he thought was a duplicate disk and the photographs were not disclosed as discovery prior to trial. In addition, there were other photographs of the scene of the collision. The prosecutor did not believe the photographs were exculpatory and, in fact, corroborated other testimony. The prosecutor did not intend to admit any of the photographs, but made them available to the defense for use without objection. The court excluded the photographs from the People's case, but stated the defense could use whatever additional photographs it wished from the discovery.

Prior to the collision investigator's trial testimony, the court conducted a 402 hearing about the release of the vehicle. The investigator testified it is a standard unwritten procedure to put evidence holds on vehicles involved in a serious-injury accident until the conclusion of the investigation. In this case, the officer who filled out the paperwork used the wrong statutory code section and, as a result, did not place an evidence hold on the vehicle. The minivan was impounded as a stolen vehicle under Vehicle Code section 22651, subdivision (c). In those situations, a vehicle is taken to a tow yard without a hold and the owner is contacted to pick up the vehicle.

The collision investigator learned a couple of weeks after the collision that the minivan was not impounded with an evidence hold. He contacted the tow yard and learned the minivan had been sold and was in a tow yard facility in Otay Mesa, California. The investigator went to the Otay Mesa tow yard facility and took photographs of the minivan. Once the investigator learned the minivan had been sold, he did not think he could place an evidence hold on the minivan. The chain of custody was broken compromising the evidentiary value of the minivan.

The collision investigator did not note in his written report or report to the district attorney's office the fact the minivan was no longer held as evidence. At the conclusion of the hearing, the court stated it would allow defense counsel to inquire of these areas in front of the jury.

During direct examination, the prosecutor had the collision investigator explain that the minivan was not properly held as evidence and was sold. The investigator explained he went to the Otay Mesa tow yard facility where he photographed the minivan. He explained once a vehicle is released, he did not believe he could impound the vehicle because the evidentiary chain of custody is broken.

On cross-examination, the collision investigator admitted he did not have the training or ability to download information from the vehicle's airbag control module, which could have recorded speed just prior to the impact. Defense counsel also cross-examined the investigator about the failure to retain the vehicle and the fact the investigator did not inform the district attorney's office after he discovered it was not properly held.

Defense counsel sought a jury instruction under Trombetta based upon the failure of the police department to retain the vehicle as evidence and the collision investigator's decision not to discuss the matter with the district attorney's office or attempt to regain custody of the vehicle. The prosecutor argued against the proposed instruction on the basis it would require the jury to speculate as to what could have been in the vehicle. Other items, such as the airbag and additional DNA swabs were maintained and were available for defense testing.

After consideration, the court determined there was no bad faith in failing to preserve the vehicle. It denied the defense's motion to impose a Trombetta sanction by way of a remedial instruction. However, the court was willing to give an instruction about the discovery violation related to the photographs.

The court instructed the jury as follows: "Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the People failed to disclose photos of the Toyota Sienna taken at the tow yard within the legal time period. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure."

C

We conclude substantial evidence supported the trial court's denial of the Trombetta motion on the basis there was no evidence "the police purposefully destroyed exculpatory evidence." A police officer mistakenly referred to the Vehicle Code section about impounding evidence for a stolen vehicle rather than evidence regarding a vehicle involved in a serious-injury accident. By the time the collision investigator learned of the mistake, the vehicle had been sold and the chain of custody broken. Berumen presented no evidence " 'the police knew [the car] would have exculpated him' when it was released." (DePriest, supra, 42 Cal.4th at p. 42, quoting Youngblood, supra, 488 U.S. at p. 56, fn. *.) There was evidence the DNA swabs were preserved as evidence along with the air bag and other items of evidence from the vehicle such that comparable DNA evidence was available to the defense. There was other evidence regarding the reckless nature of Berumen's operation of the vehicle based upon the scene of the accident, which could have been analyzed by the defense. Officer W. saw the minivan drive away from approaching police vehicles at an excessive speed, through red lights and into oncoming lanes of traffic. The evidence at the scene of the accident showed the minivan struck the Kia head-on, stopping the Kia's forward progress, and propelling it backwards into a lamp post at a high speed.

The defense proffered testimony from an accident reconstruction expert prior to trial saying if he were given access to the minivan he would have analyzed the driver's seat height adjustment and the air bag control module to determine how fast the minivan was moving, the impact movements, the steering inputs and braking inputs to determine the injuries the driver of the minivan may have sustained and if the minivan was driven recklessly prior to the collision. In other words, access to the minivan and its air bag control module potentially may have provided helpful information, but it was not obviously exculpatory information and did not constitute a denial of due process. (Youngblood, supra, 488 U.S. at pp. 57–58.)

We further conclude the court did not abuse its discretion in denying the request for a remedial instruction. "Trial judges have considerable discretion in imposing sanctions, if any, if discoverable evidence is lost or destroyed. [Citation.] If there is no evidence of bad faith, the sanction imposed should be no more than is necessary to assure the defendant a fair trial." (People v. Von Villas (1992) 10 Cal.App.4th 201, 246.) Here, Berumen was not denied a fair trial. His counsel had the opportunity to cross-examine the police officers about their failure to maintain the vehicle and the information that may have been available in the minivan and the air bag control module. Defense counsel was able to argue the potential for lost evidence. There was more than ample evidence supporting the jury's verdict. Any error in refusing to give the requested instruction was harmless. (Id. at p. 247.)

II

CALCRIM No. 226

Berumen next contends the court erred in failing to instruct the jury regarding the loss of the minivan as a discovery violation and in failing to include bracketed language in CALCRIM No. 226 stating "[If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Of, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.]" (CALCRIM No. 226.) We disagree.

The bench note to CALCRIM No. 226 states the bracketed language at issue here should be given only if relevant based on the evidence. (Bench Notes to CALCRIM No. 226, p. 58.) Here there was insufficient evidence any police officer deliberately lied about something significant in the case and therefore, there was no basis for the instruction. (People v. Valdez (2004) 32 Cal.4th 73, 137.)

Berumen argued to the jury, as he argues on appeal, that the testimony of the police officers was inconsistent in various regards. He contended there was a photograph of Officer W. not wearing gloves at a time the officer who took Berumen's photograph was also at the scene, raising the specter of cross-contamination. However, Officer W. testified he had completed the DNA swabs before he saw the photograph of Berumen and was at the end of his collection of evidence at the time the photograph was taken. This is consistent with the other officer's testimony that Officer W. had bags of evidence completed when he arrived. Even if there was evidence of inconsistencies, there was no evidence any of the officers deliberately lied. Other portions of the jury instruction advised the jury to consider the truth or accuracy of the witnesses' testimony and how much of that testimony to believe. Therefore, "f the jury had agreed with defense counsel that [any officer] was consciously lying on the stand, it would have been able to reach the conclusion that 'his testimony [was] to be distrusted,' even without the instruction's guidance." ([i]People v. Murillo (1996) 47 Cal.App.4th 1104, 1108.)

Because we conclude there were no individual prejudicial errors, we need not reach the issue of cumulative error.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

O'ROURKE, J.