P. v. Houston

Filed 7/24/07 P. v. Houston CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Craig E. Veals, Judge. Affirmed.

Randy S. Kravis for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

The jury convicted defendant Daquan Ramone Houston of four counts of second degree robbery with use of a firearm and two counts of possession of a firearm by a felon. (Pen. Code, 211, 12022.53, subd. (b), 12021, subd. (a)(1).)[1] The jury also found that defendant committed these crimes in furtherance of a criminal street gang. ( 186.22.)[2] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 22, 2005, defendant and an unknown accomplice entered the Rojas Audio Systems and robbed Teresa Rincon and two others at gunpoint. Rincon identified defendant, whose palm print was found on the audio stores display case, as the gunman in a photographic lineup, a live lineup, and in court.

On May 23, 2005, defendant and an unknown accomplice entered the Lincoln Tires and Mufflers garage and robbed the owner, David Gutierrez, at gunpoint. Gutierrez, who recognized defendant as a recent customer, pursued defendant and his accomplice as they fled in a white Toyota Corolla.[3] Gutierrez crashed his truck into the back of the Toyota and pushed it into a fence. Defendant and his accomplice jumped out and ran. Gutierrez later identified defendant as the gunman in a photographic lineup, a live lineup, and in court.

On May 24, 2005, Officer Jeremy Duncan, a Los Angeles Police Department gang enforcement officer who testified as the prosecutions gang expert,[4] arrested defendant for both robberies based on information obtained during the investigations. In his arrest report, Duncan stated that defendant had admitted to being a member of the 46 Top Dollar Hustler Crips, a criminal street gang. In addition, Duncan testified at trial that defendant, upon being arrested, had stated, Duncan, you know I dont rob people. I just carry guns.

Defendant made two unsuccessful motions that are at issue on appeal. First, he moved under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to discover information in Duncans personnel files pertaining to misconduct, including the writing of false police reports. In addition, on the second day of jury selection, he moved for a one-month continuance in order to substitute his appointed counsel with retained counsel, who was not ready for trial.

Defendant, who presented no evidence, was found guilty on all counts and received a total prison sentence of 30 years and 8 months. On appeal, defendant contends that the trial court: (1) erroneously denied his Pitchess motion; (2) erroneously refused to grant a continuance in order to substitute appointed counsel with retained counsel; and (3) erroneously failed to instruct the jury sua sponte to view defendants admissions with caution.

DISCUSSION

I. The Pitchess Motion

A. Background

A criminal defendant has a limited right to discover information in a police officers personnel records that is relevant to his or her defense. Sections 832.5, 832.7, and 832.8 and Evidence Code sections 1043 through 1047 set forth the procedures for such discovery. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81 (Santa Cruz).) The motion must be supported by an affidavit of good cause that explains, based on information or belief, the materiality of the requested information to the pending case. (Evid. Code, 1043, subd. (b)(2), (3); Santa Cruz, supra, 49 Cal.3d at p. 86.)[5]

For a defendant to show good cause he or she must allege specific police misconduct set forth in an affidavit that describes a specific factual scenario and a plausible factual foundation. (Santa Cruz, supra, 49 Cal.3d at pp. 85-86.) In Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025-1026 (Warrick),the Supreme Court specified that such a plausible scenarioone that might or could have occurredrequires an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. (Id. at p. 1026.)

In Warrick, the defendant was charged with possession of cocaine for sale based on the arresting officers allegation that he had discarded the cocaine upon being approached. The defendant, who denied possessing and discarding the cocaine, requested an in camera review of the arresting officers personnel records under Pitchess. His counsels supporting affidavit stated that the officers mistook defendant for the person who actually discarded the cocaine, and falsely accused him of having done so. (Warrick, supra, 35 Cal.4th at 1027.) The Supreme Court found the affidavit was sufficient to establish good cause because it described a scenario that directly conflicted with the police report by denying that defendant had possessed or discarded the cocaine, and was internally consistent and plausible. (Ibid.) Furthermore, the affidavit outlined a defense raising the issue of the practice of the arresting officers to make false arrests, plant evidence, commit perjury, and falsify police reports . . . . (Ibid.)

B. Application

In support of defendants Pitchess motion, defense counsel filed an affidavit seeking an in camera review of Duncans personnel records for information pertaining to misconduct including fabrication of charges, evidence, reasonable suspicion, or probable cause; perjury; dishonesty; writing false police reports; or planting evidence.

The burden lies on the defendant to provide an affidavit specifically alleging that there was police misconduct and explaining the relevance of the alleged misconduct to the defense. In the case at bar, defense counsels declaration stated: Officer Duncan has made repeated statements in the arrest report that Mr. Houston joined the Rollin Crips.^[[6]] My client, Daquan Houston, denies ever saying that he moved from the crew of Top Dollar Hustlers to being a member of the Crips. Counsels affidavit, however, does not contradict what was stated by Duncan in the arrest report.

In the arrest report, Duncan did not claim that defendant had admitted to moving from the crew of the Top Dollar Hustlers to the Rolling Crips. The arrest report mentioned only one admission made by defendant, namely, that he is an active member of 46 Top Dollar Hustler Crip with the moniker of Lil Suge. Contrary to what was stated in the affidavit, the police report made no mention of an admission by defendant that he had moved into the Rollin Crips.

Accordingly, the affidavit failed to allege any facts showing that Duncan, in the police report, had misrepresented defendants statements. Thus, because the affidavit makes no allegation of police misconduct by Duncan that is supported by the record, it fails to show that discovery of Duncans confidential personnel file would support[] the defense proposed to the charges. (Warrick, supra, 35 Cal.4th at p. 1026.)

II. The Motion for Continuance

Defendant contends that on the second day of jury selection, the trial court abused its discretion in denying his motion for a one-month continuance in order to substitute appointed counsel for retained counsel. The contention lacks merit.

A. The Right to Counsel

A criminal defendants right to counsel of his or her choice includes the right to discharge privately retained counsel at any time with or without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) The right must be balanced, however, against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case. [Citation.] (People v. Byoune (1966) 65 Cal.2d 345, 346.) It is within the trial courts discretion to deny such a motion if it is not timely, i.e., if it will result in disruption of the orderly processes of justice. [Citations.] (Ortiz, supra, 51 Cal.3d at p. 983.) The trial courts discretion is the same in considering a request to replace appointed counsel with retained counsel, as economic status should not dictate a different result. (Id. at pp. 984-985.) Therefore, a trial courts denial of a defendants request to substitute appointed counsel with retained counsel is justified when the defendant is unjustifiably dilatory or . . . arbitrarily desires to substitute counsel at the time of the trial. [Citations.] (People v. Blake (1980) 105 Cal.App.3d 619, 623-624.)

On appeal, we review the denial of defendants request for a continuance in order to substitute appointed counsel with retained counsel under the abuse of discretion standard. (People v. Courts (1985) 37 Cal.3d 784, 790 (Courts).) In applying that standard, we do not substitute our own judgment for that of the trial court. (Department of Parks and Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831.) In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, particularly in the reasons presented to the trial judge at the time the request [was] denied. ([People v. Crovedi (1966) 65 Cal.2d 199,] 207, quoting Ungar v. Sarafite [(1964)] 376 U.S. [575,] 589.) (Courts, supra, 37 Cal.3d at p. 791.)

B. Application

We find that in denying defendants untimely request for a one-month continuance on the second day of jury selection, the trial court did not abuse its discretion.

Although defendant had twice expressed dissatisfaction with his appointed counsel (first at his arraignment on August 25, 2005, and again on February 10, 2006), he did not promptly inform the trial court of his desire to retain a private attorney before the February 14, 2006 trial date. Instead, defendant waited until February 14 to request a two- to three-week continuance in order to obtain the funds necessary to retain a private attorney. Given the lack of any assurance that the necessary funds could or would be raised during that time, the trial court reasonably denied the vague and untimely request. On February 15, which was the second day of jury selection, defendants newly retained counsel appeared at trial and requested a 30-day continuance in order to prepare for trial. The request was untimely, and the record contains no facts to suggest otherwise.

Where, as in Courts, supra, 37 Cal.3d at page 792, a continuance is requested a week before trial, the denial of a continuance is more likely to be an abuse of discretion. But in People v. Lau (1986) 177 Cal.App.3d 473, 478-480, the denial of an untimely request for a continuance made on the first day of trial was not an abuse of discretion. (See also People v. Turner (1992) 7 Cal.App.4th 913, 919 [not unreasonable to deny the defendants request to replace his attorney on the day of trial].) Under the circumstances of this case, there is nothing in the record to suggest that it was an abuse of discretion for the trial court to deny the untimely request for a continuance made on the second day of jury selection.

III. Instructional Error

Defendant contends that the trial court erred in failing to instruct the jury sua sponte with CALJIC No. 2.71, which warns that evidence of a defendants oral admission should be viewed with caution.[7] Defendant argues that his statement to Duncan, Duncan, you know I dont rob people[,] I just carry guns[,] constituted an oral admission because it tended to prove, in conjunction with the other evidence, his guilt of the robbery and felon in possession of a firearm allegations. ( 211, 12021, subd. (a)(1).) The Attorney General responds that the instruction was unnecessary because defendants statement was not an admission, given that it was intertwined with an exculpatory denial of the audio store robbery: I didnt rob that place. And I did visit that audio store once before. It was either in November or December the year before. And I visited that place with my brother.

A confession is a declaration by a person that he is guilty of a crime. . . . It differs from an admission of an accused in that the confession is an express and complete acknowledgment of guilt of the crime, while an admission may be either express or implied, and is merely an acknowledgment of some fact which tends to prove guilt. [Citations.] (Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 828-829.) Although defendants statement, I dont rob people[,] I just carry guns, was not a confession of the robberies, it was an acknowledgement that defendant carries guns, which, for a felon, is a crime ( 12021, subd. (a)), and it also tended to incriminate him with regard to the robbery allegations. We therefore conclude that defendants statement constituted an oral admission.

When the evidence warrants, the court must instruct the jury sua sponte to view evidence of a defendants oral admissions or confession with caution. (People v. Carpenter (1997) 15 Cal.4th 312, 392 . . . ; People v. Bunyard (1988) 45 Cal.3d 1189, 1224 (Bunyard).) (People v. Dickey (2005) 35 Cal.4th 884, 905 (Dickey).) [T]he purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.] (People v. Beagle (1972) 6 Cal.3d 441, 456.) Given our determination that defendants oral statement constituted an oral admission, we conclude that the trial court should have given CALJIC No. 2.71 sua sponte.

We review the failure to give the cautionary instruction according to the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given. (People v. Stankewitz (1990) 51 Cal.3d 72, 94 . . . .) (Dickey, supra, 35 Cal.4th at p. 905.) Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.] (People v. Pensinger (1991) 52 Cal.3d 1210, 1268.) [] Where there was no such conflict in the evidence, but simply a denial by the defendant that he made the statements attributed to him, we have found failure to give the cautionary instruction harmless. (Bunyard, supra, 45 Cal.3d at pp. 1225-1226.) (Dickey, supra, 35 Cal.4th at pp. 905-906.)

In this case, there was no conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.] [Citation.] (Dickey, supra, 35 Cal.4th at p. 905.) As the Attorney General correctly asserts, [a]t most, defense counsel attempted to show that appellant may not have made his post-arrest statements by pointing out during cross-examination that the statements did not appear in any of Duncans written reports.

In addition, the evidence of defendants guilt on all counts was very strong. Both Rincon and Gutierrez identified defendant as the gunman in a photographic lineup, an in‑person lineup, and in court. His palm print was also found on the freshly cleaned counter of the audio store. His gang membership was established by Duncans expert testimony regarding his gang monikers and tattoos. Accordingly, it is not reasonably probable the jury would have reached a result more favorable to defendant had the cautionary instruction been given.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.

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[1] All further undesignated section references are to the Penal Code unless otherwise indicated.

[2] Section 186.22, subdivision (f) defines criminal street gang as any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

[3] The Toyota was driven by Ramiah Tramble, who was tried with defendant for second degree robbery with use of a dangerous weapon. She was acquitted.

[4]Duncan testified that defendants crew, the 46 Top Dollar Hustlers, was a part of the Rolling 40s Neighborhood Crips, a well-known criminal street gang. Duncan further supported this claim with testimony about defendants tattoos, his gang moniker, and his known gang associates.

[5] Evidence Code section 1045 protects the confidentiality interests of both law enforcement officers and their employing agencies by: (1) excluding from disclosure certain categories of information (Evid. Code, 1045, subd. (b)); (2) providing for in camera review of the information before any disclosure (ibid.); and (3) directing the trial court to consider the important privacy interests of the officers whose records are sought (Evid. Code, 1045, subds. (c), (d), (e)). Thus, the statutory framework balances a defendants fundamental right to obtain information relevant to his or her defense against the law enforcement officers privacy concerns. (Santa Cruz, supra, 49 Cal.3d at p. 84.)

[6] It was not misconduct for Duncan to say that defendant belongs to a gang based on evidence that included more than defendants statement. On appeal, defendant does not challenge the sufficiency of that evidence to support his conviction of the gang enhancements.

[7] CALJIC No. 2.71 provides: An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [] [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]