P. v. McClellan

Filed 10/25/07 P. v. McClellan CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE COURT:

It is ordered that the nonpublished opinion filed herein on September 28, 2007, be modified as follows:

1. On page 2, delete the word crimes from the first sentence of the second paragraph of the Background section, so the sentence reads:

The robberies were committed at the same Big 5 Store in Torrance.

2. On page 4, in the second full paragraph, insert the following text after the quote from the March 30, 2006 minute order (which ends with evidentiary rulings for another court.):

On April 30, 2006, Judge Taylor ordered the parties to appear for a readiness hearing on April 5. On April 5, 2006, without any explanation on the record, defendants entered open pleas of no context to the six robbery counts, as well as gang enhancements, enhancements for firearm use, and prior felony convictions. McClellan also admitted the ammunition possession charge. Toles was advised that he faced a maximum of 46 years 8 months in state prison, with an indicated sentence of 14 years. McClellan was advised that he faced a maximum of 49 years, with an indicated sentence of 12 years. Defendants were later sentenced to the terms indicated by the trial court.

The trial court thereafter denied defendants requests for certificates of probable cause to appeal the denial of their motions to dismiss. We issued a peremptory writ of mandate in favor of each defendant, ordering that the certificates be issued. (Toles v. Superior Court (Mar. 9, 2007, B196673) [nonpub. opn.]; McClellan v. Superior Court (Feb. 1, 2007, B195477) [nonpub. opn.].)

DISCUSSION

Defendants contend that the grant of mistrial was an inadequate sanction because the governmental misconduct in withholding the information about Pollard was outrageous in a manner to implicate the Due Process Clause of the United States Constitution, thereby requiring that the prosecutions be dismissed. We disagree.

[N]o federal court has defined with any sort of precision the contours of the outrageous conduct defense. (United States v. Bogart (9th Cir. 1986) 783 F.2d 1428, 1435, revd. on rehg. sub non. United States v. Wingender (9th Cir. 1986) 790 F.2d 802.) Nevertheless, [w]hen conduct on the part of the authorities is so outrageous as to interfere with an accuseds right of due process of law, proceedings against the accused are thereby rendered improper. [Citations.] Dismissal is, on occasion, used by courts to discourage flagrant and shocking misconduct by overzealous governmental officials in subsequent cases. [Citations.] (Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 429.) [T]he sanction of dismissal is clearly discretionary and is only required in particularly egregious cases. [Citation.] (Id. at p. 435.)

[A]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation [of the defendants right to counsel] may have been deliberate. [Fn.] [Citation.] [] Where it appears that the state has engaged in misconduct, the burden falls upon the People to prove, by a preponderance of the evidence, that sanctions are not warranted because the defendant was not prejudiced by the misconduct. [Citations.] (People v. Zapien (1993) 4 Cal.4th 929, 967.)

Notwithstanding that the Torrance Police Departments failure to turn over discovery materials in a timely manner may have been a recurring problem, there is nothing in this record that would have required the trial court to exercise its discretion to impose the sanction of dismissal. McClellan points to weaknesses in the identification evidence against him and argues that, had he known Pollard had been identified as a participant in the January 25 robbery, he could have insisted on a pre-preliminary hearing lineup in which Pollard would be included. Toles argues that, by the time Pollards suspected participation became know, he had no realistic chance at that late date of shaking the witnesses long delayed identifications of [himself] as the second robber in December.

There is no change in the judgment.

Appellant McClellans petition for rehearing is denied.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J. VOGEL, J. ROTHSCHILD, J.

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