P. v. Wade

Filed 3/8/07 P. v. Wade CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Chancellor Lenard Wade was charged with the robberies of three banks in Sacramento during a one-week period in November 2003. His defense was mistaken identity. Defendant, representing himself, obtained an acquittal of one of the robberies, a deadlocked jury on the second, and a guilty verdict on the lesser offense of grand theft as to the third. Defendant argues the trial court should have granted his motion to dismiss the third robbery count because the police willfully failed to obtain potentially exculpatory evidence. He also contends the court erred by refusing to incorporate his proposed modification to the standard instruction that permits a jury to infer guilt from the defendants possession of recently stolen property. Defendants final contention concerns a miscalculation of presentence custody credits, which the People concede. Aside from correcting the credit miscalculation, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with three counts of second degree robbery (Pen. Code,  211),^[1]for the November 5, 2003 robbery of the California Bank & Trust branch on Broadway (count one), the November 10, 2003 robbery of the Washington Mutual Bank branch on Freeport Boulevard (count two), and the November 12, 2003 robbery of the Golden One Credit Union branch on Stockton Boulevard (Golden One) (count three). Defendant was also alleged to have a prior strike conviction. ( 667, subds. (b)-(i), 1170.12.)

Defendant secured an acquittal of count one. The jury was unable to reach a verdict on count two, so the court declared a mistrial. Defendant was found guilty of count three and sentenced to the upper term of three years, doubled to six years in state prison for the strike prior.^[2]

The instant appeal arises out of count three, the robbery of the Golden One that occurred about 10:50 a.m. on November 12, 2003. Either defendant or a man resembling defendant approached a bank teller and handed her a note demanding all of the money in her cash drawer if she wanted to avoid trouble. The teller handed the robber $770 from her cash drawer, including a packet of twelve $20 bills that contained an electronic tracking device.

The police were notified of the robbery, and commenced tracking the perpetrator with a helicopter and a squad car. They traced the signal to the intersection of 39th and S Streets, where an officer saw defendant walking on 39th Street. Since defendant fit the description of the robber, the officer stopped him.

A second officer arrived on the scene, electronically scanned defendant and found the cash with the tracking device from the Golden One robbery, secreted in one of defendants shoes, still positioned between two $20 bills.

The Golden One bank teller who gave the currency to the robber was transported to the scene for a field show-up, but she was unable to identify defendant as the person who committed the robbery. At trial, however, the teller testified that defendant was in fact the person who had robbed her.

Following his arrest, defendant was interviewed by Sacramento Police Detective Patricia Mulderrig. Defendant told her that at the time of the robbery he was waiting to receive medical care in the emergency room at the University of California, Davis Medical Center (hereafter, Hospital), which is located basically across the street from the Golden One branch that was robbed. Detective Mulderrig mentioned the possibility that Hospital surveillance tapes might be able to corroborate defendants alibi, and indicated she would contact Hospital officials to see if a relevant tape existed. Detective Mulderrig thereafter contacted the Hospital and left several messages with the individual in charge of surveillance videotapes, but through a series of missed calls the window of time for securing the tapes passed, and they were erased.

Defendant moved to dismiss count three based on Detective Mulderrigs bad faith failure to obtain the Hospitals surveillance tapes. He argued that Detective Mulderrig knew on the date of his arrest that he needed the tapes to substantiate his alibi and that she willfully failed to obtain them. Attached to the motion was an excerpt of the detectives testimony at the preliminary examination. She could not recall whether the Hospital had a taping system, or if it did, whether there were cameras in the emergency room. He also included the Hospitals response to a subpoena for the tapes in which the Hospital stated that its taping system used a 72-hour loop, and that the tapes were retained for a 30-day period only.^[3]

The court denied the motion because the prosecution did not have a duty to obtain the videotapes. At trial, though, defendant was permitted to testify that Detective Mulderrigs failure to obtain the tapes deprived him of evidence that would have cleared him.

Defendant testified as to how the tracking device ended up in his shoe so soon after the robbery: While walking away from the Hospital, defendant noticed a man standing on 39th Street. The man pulled out a handful of currency, walked to the front of a private residence, and hid the money in one of the bushes. Defendant, unemployed and destitute, retrieved the currency from the bushes and hid it in his shoe with the intent to convert it to his own use. Soon thereafter, he was detained, searched and arrested.

DISCUSSION

I. The Trial Court Properly Denied the Motion to Dismiss

Defendant contends the trial court erred when it denied his motion to dismiss count three because the failure to obtain the potentially exculpatory surveillance tapes from the Hospital violated his federal due process rights, as described in California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413]. We are not persuaded.

Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence that might be expected to play a significant role in the suspects defense. [Citations.] To fall within the scope of this duty, the 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. [Citations.] The states responsibility is further limited when the defendants challenge is to the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. [Citation.] In such case, unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. [Citations.] [] On review, we must determine whether, viewing the evidence in the light most favorable to the superior courts finding, there was substantial evidence to support its ruling. (People v. Carter (2005) 36 Cal.4th 1215, 1246, italics omitted.)

The trial court denied defendants Trombetta motion because he had failed to show bad faith. This ruling is supported by the evidence. When defendant made the motion, defendant presented no evidence (or even made an offer of proof) to show that the Hospital had even taped the emergency room at the time of the Golden One robbery, or that if it had, the tapes would depict him clearly, if at all. The attached prior testimony of Detective Mulderrig indicated she was unsure whether the Hospital had a taping system, or whether there were cameras in the emergency room. Detective Mulderrigs efforts to obtain the videotapes, if anything, tend to negate an inference of bad faith.^[4]

We also are not persuaded that a law enforcement agency has any duty to obtain or preserve potentially exculpatory evidence in the possession of third parties. In the principal case defendant cites for his position, Miller v. Vasquez (9th Cir. 1989) 868 F.2d 1116, 1120-1121, the court held that a bad faith failure to collect potentially exculpatory evidence would violate the due process clause. [Citation.] This decision is an aberration and the law only in the Ninth Circuit. (White v. Tamlyn (E.D. Mich. 1997) 961 F.Supp. 1047, 1063, fn. 12.)

In the closely related body of law discussing Brady v. Maryland (1963)373 U.S. 83 [10 L.Ed.2d 215]‑‑which imposes a duty to disclose evidence that is broader than the duty to preserve evidence described in Trombetta (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8)‑‑the prosecutors duty to disclose material exculpatory evidence extends only to evidence that the prosecution knowingly possesses or has the right to possess, including evidence in the possession of investigative and prosecutorial agencies and personnel acting on the governments behalf (Kyles v. Whitley (1995) 514 U.S. 419, 437-438 [131 L.Ed.2d 490, 508]), or assisting the governments case. (In re Brown (1998) 17 Cal.4th 873, 881; People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315.) However, information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material. (Barrett, at p. 1315; accord, In re Steele (2004) 32 Cal.4th 682, 697.) Here, it is undisputed that the Hospital was not working on the governments behalf or assisting its case. Therefore, neither Detective Mulderrig, the police department, nor the prosecution had a duty to disclose to the defense any evidence in possession of the Hospital. By parity of reasoning, they had no duty to obtain and preserve such evidence.^[5]

It is not reasonably probable that defendant would have received a more favorable outcome if the police had secured the videotapes, whether or not the tapes depicted defendant in the Hospital emergency waiting room while the Golden One robbery was in progress. Defendant admitted taking the currency he saw another man hide in the bushes outside a private residence. The actions of the other man did not suggest that he intended to discard or abandon the currency. If anything, the actions disclosed an intent to hide the currency for later recovery, as might be expected in the case of a bank robber who senses he is being pursued, perhaps by the sound of a nearby police helicopter. Defendant, with full knowledge that the currency had neither been lost nor abandoned, seized it for his own use. Thus, at a minimum, he committed a theft‑‑as he admitted at trial. ( 485; People v. Buelna (1889) 81 Cal. 135, 136-137.)^[6] Since the bank robber had taken $770 in currency from the Golden One, a jury could have reasonably inferred that the amount of currency defendant allegedly took from the bushes exceeded the $400 minimum for grand theft. ( 487, subd. (a).) Therefore, even if we assume the ultimate sanction of dismissal of the Golden One robbery charge was appropriate for the prosecutions failure to obtain the Hospital surveillance tapes, defendant still would have faced, and been convicted of, a grand theft charge based on his admitted possession of the currency allegedly taken from the bushes. It follows that he suffered no prejudice as a result of the prosecutions failure to obtain the surveillance tapes.

II. The Refusal to Modify CALJIC No. 2.15 Was Correct

Defendant next contends that the trial court erred by failing to embellish CALJIC No. 2.15 with language that would have alleviated what he perceives to be the instructions impermissible tendency to shift the burden of proof to the accused. CALJIC No. 2.15 instructs the jury that if it finds that the defendant was in conscious possession of recently stolen property, it may infer an inference of guilt so long as there is some corroborating evidence.^[7] To this instruction, defendant offered the following addition: However, no inference of guilt may be made from the defendants conscious possession of recently stolen property when such possession was satisfactorily explained. To be satisfactor[y], the explanation need only raise a reasonable doubt as to whether or not the defendant came into possession of the property by criminal means. The court refused to give the augmented instruction because the concept it conveyed was adequately covered by other instructions.

Relying on Barnes v. United States (1973) 412 U.S. 837 [37 L.Ed.2d 380], defendant asserts the courts refusal to add the proposed paragraph violated his federal constitutional rights to a fair trial and due process and requires automatic reversal because it impermissibly lightened the prosecutions burden of proof.

An identical contention was rejected in People v. Williams (2000) 79 Cal.App.4th 1157: Barnes does not suggest that the failure to explain possession of recently stolen property is a constitutionally mandated foundational requirement for drawing an inference of guilt. Nor does Barnes suggest that no circumstances other than the lack of an explanation can combine with conscious possession of recently stolen property to support an inference of guilt. Rather, as CALJIC No. 2.15 acknowledges, an inference of guilt may rationally arise from the concurrence of conscious possession and many other circumstances. . . . In our view, CALJIC No. 2.15 correctly prohibits the jury from drawing an inference of guilt solely from conscious possession of recently stolen property but properly permits the jury to draw such an inference where there is additional corroborating evidence. As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inference is sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecutions burden of proof or implicates a defendants right to due process. Indeed, CALJIC No. 2.15 has repeatedly withstood challenges on the grounds that it lessens the burden of proof or otherwise denies a defendant due process of law. (Williams, at p. 1173.) We agree with Williams.^[8]

In the present case, the corroborative evidence was substantial, and the permissive inference did not lessen the prosecutions burden of proof. Moreover, instructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury. (People v.Holt (1997)15 Cal.4th 619, 677.) In addition to receiving instructions on the elements of grand theft and proof beyond a reasonable doubt, the jury was instructed: The defendant in this case has introduced evidence for the purpose of showing that he was not present at the time and the place of the commission of the alleged crime for which he is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, you must find him not guilty. This instruction counterbalanced, and thus negated, the alleged error of which defendant complains.

Defendants argument also fails due to the absence of a factual predicate. The applicability of the proposed additional language depended on the existence of facts that would raise a reasonable doubt as to whether or not the defendant came into possession of the property by criminal means. The only evidence presented to the jury was that defendant had come into possession of the property by criminal means, either by robbing the bank or stealing the money left in the bushes. Thus, the proposed addition to CALJIC No. 2.15 did not find support even in the defense evidence. A trial court is required to give a requested instruction on a defense only if substantial evidence supports the defense. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1058.) Since defendants proposed instruction was also unsupported by the evidence, it was properly refused.

III. Defendant Is Entitled to One More Day of Credit

Defendants remaining contention is premised on the failure to credit him with one day of leap year credit, attributable to his custody during the quadrennial appearance of February 29, in 2004. The People concede the point, and our review confirms that defendant is entitled to 485 actual days of credit. We shall modify the judgment accordingly. The additional day does not result in any additional good conduct presentence custody credit.

DISPOSITION

The judgment is modified to add one additional day of presentence custody credit. As modified, the judgment is affirmed. The trial court is directed to issue an amended abstract of judgment reflecting this modification and to forward a certified copy to the Department of Corrections and Rehabilitation.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

ROBIE , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] Defendant was retried on count two in case No. 03F09973 and convicted on April 21, 2005, while this appeal from his conviction on count three was pending. Defendant subsequently appealed his conviction on count two in People v. Wade (C049976, app. pending).When the trial court sentenced defendant on count two, it vacated his original six-year upper term on count three and resentenced him on count three to a midterm of two years, doubled for the strike prior to four years in state prison, to run concurrent to an aggregate term of 15 years on count two.

^[3] At trial, defendant called an operations police lieutenant from the Hospital who testified that the Hospital surveillance system uses four cameras, two of which cover the emergency room. These details regarding the existence and extent of the video surveillance system were not presented to the court prior to its ruling on the motion to dismiss, and defendant did not renew the motion afterwards.

^[4] Defendants argument assumes the police were obliged to contact the Hospital to obtain surveillance tapes that may have had a bearing on the alibi defense. The weight of authority runs counter to this assumption.

^[5] We note that defendant demonstrated an awareness of legal procedures while representing himself throughout the action, further undermining any asserted reliance on a belief that Detective Mulderrig would secure the tapes for defendant. Defendant could have just as easily subpoenaed the Hospital videotapes himself than to suppose the police would obtain the tapes on his behalf. Unless the tapes fortuitously captured a clear image of him at the precise time the Golden One robbery was in progress, defendant was better off without the tapes, so he could argue, as he did, that the charge was the result of shoddy police work that deprived him of evidence that would have cleared him.

^[6] Section 485 states: One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

^[7] As given to the jury, CALJIC No. 2.15 states: If you find that a defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crimes charged in the information or the lesser included crimes. Before guilt may be inferred, there must be corroborating evidence tending to prove defendants guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. [] As corroboration, you may consider the attributes of possession: time, place and manner, that the defendant had an opportunity to commit the crime charged, the defendants conduct, his false or contradictory statements, if any, and other statements he may have made with reference to the property, a false account of how he acquired possession of the stolen property, [and] any other evidence which tends to connect the defendant with the crime charged.

^[8] In addition, the California Supreme Court has rejected substantially the same arguments (see People v. Yeoman (2003) 31 Cal.4th 93, 131-132 and People v. Prieto (2003) 30 Cal.4th 226, 248-249), thereby foreclosing reconsideration by this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)