PEOPLE v. SHADDEN

Filed 4/24/07

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

Story continued from Part I ..

The evidence was also admissible to show that defendant attempted to suppress evidence, revealing his consciousness of guilt. Olguin observed that California law prohibits proving consciousness of guilt by establishing attempts to suppress evidence unless those attempts can be connected to a defendant. (People v. Olguin, supra, 31 Cal.App.4th at p. 1368.) Here, however, there was evidence connecting defendant with the shooting at Rubens residence. The telephone calls defendant placed from jail made the evidence relevant, despite the judges ruling to the contrary. To see why, it is helpful to consider the entire record of the statements defendant made during telephone calls he placed from the jail.

The prosecutor played recordings of seven telephone calls defendant placed from jail to Vanessa and others. One subject defendant and Vanessa discussed was a plan where Vanessa and Jason were to contact the police and retract statements that defendant was the shooter. This is mentioned in the first call:

[DEFENDANT]: Did you call evhave you even called yet?

VANESSA: Were going to get the police report tomorrow and

[DEFENDANT]: Why? I told you what you got to do the fuckin first day.

VANESSA: Oh, Im, Im gonna do it and I even told Jason already too.

[DEFENDANT]: Why didnt you just call already and say, and we wouldve avoided all of this. The second day you could of called and said it.

VANESSA: Cause I needed to speak to Jason first to make sure that he was going to go with it and he said yeah too.

[DEFENDANT]: You talked to him already?

VANESSA: Yeah he said

[DEFENDANT]: Why havent you called then? All you have to do is call.

VANESSA: I tried, I tried to (inaudible) I talked to him yesterday Tommy. He told me right off the bat Im not testifying.

[DEFENDANT]: Why dont you just fuckin call and say what I told you?

VANESSA: I, I, I will. Ill call tomorrow morning if you want me to.

[DEFENDANT]: You fuckin should of did it the next morning when I told you.

VANESSA: I told you I had wait till I get a hold of Jason and I got a hold of him yesterday.

In the same call, defendant insisted to his father that either Vanessa, Jason, or defendants mother called the police on him. One of those three tipped them off, he asserted. The father denied this occurred. Defendants father also thought the plan to have Vanessa and Jason deny defendant was the shooter would fail:

[DEFENDANT]: Vanessa needs to just call tomorrow and tell the truth, that what happened.

FATHER: Tommy they have other witnesses.

[DEFENDANT]: No they dont.

FATHER: Yes they do. The people next door they were partying saw you. [] []

[DEFENDANT]: Mom is the one who fuckin told those people who I was.

Later in the call, defendant told Vanessa the story she was to give the police:

[DEFENDANT]: You need to fuckin call. I dont give a fuck if you call right now. First thing in the fuckin morning.

VANESSA: Okay.

[DEFENDANT]: You call em and tell them what you did.

VANESSA: Okay.

[DEFENDANT]: What did you do? You got mad cause you heard I was there and I broke that fuckin baby thing

VANESSA: Uh-huh.

[DEFENDANT]: and you fuckin went out and you fucking had your fuckin friend do it. What friend? Who cares? Im letting you know what happened.

VANESSA: Okay.

[DEFENDANT]: They dont want to believe you, who cares? Tell em.

VANESSA: Okay.

He repeated these instructions a few minutes later: Tell em you were fuckin mad cause I was there half hour previous and you heard I smashed the fucking thing like I did, you know, I was going to fuckin lie, I broke the babys (inaudible) fuck it. Dang, you fuckin had your friend shoot it up hey.

Later the same evening, defendant called back to ask Vanessa if she had made the call yet. She had not, but said she had discussed it with defendants father and determined the call should be to the Bakersfield Police Department.

Defendant called again the next day and continued demanding in abusive terms that Vanessa carry out his plan:

[DEFENDANT]: Are you drinking?

VANESSA: Yeah. Im drinking now.

[DEFENDANT]: Your little bitch ass couldnt fuckin, instead of pick up a beer, fuckin call a person? Is this a game to you? [] []

VANESSA: I told you Ill call and Im going to call.

[DEFENDANT]: Then fucking, youve been telling me since the fuckin day it happened. Call fuckin not now but fuckin right now stupid.

VANESSA: All right stupid.

[DEFENDANT]: What, what? Hello?

VANESSA: Yeah?

[DEFENDANT]: What do you mean you fuckin bitch? What are you going to do?

VANESSA: Dont talk to me like that. Dont talk to me like that.

[DEFENDANT]: What are you going to do?

VANESSA: I told you already.

[DEFENDANT]: If not, fuckin leave and well deal with it another way. What are you going to do?

VANESSA: I already told you.

[DEFENDANT]: When?

VANESSA: Right now.

Defendant then asked Vanessa to put his mother on the line. Defendant told his mother to make sure Vanessa made the call.

A few minutes later, defendant called back to ask how it went:

[DEFENDANT]: What happened?

VANESSA: They laughed at me.

[DEFENDANT]: What do you mean?

VANESSA: They said theyll see my ass in court.

[DEFENDANT]: Who?

VANESSA: So, they want me to testify against you and Im not testifying against you.

[DEFENDANT]: I didnt hear you.

VANESSA: They want me to testify against you

[DEFENDANT]: Who?

VANESSA: and I told them I wasnt going to testify. Thethe sergeant.

[DEFENDANT]: What do you mean?

VANESSA: He thought it was a joke.

[DEFENDANT]: What

VANESSA: He started laughing.

[DEFENDANT]: What do you mean a joke?

VANESSA: He said[,] You[re] trying to change the story up now huh? I said change the story, Im just letting you know it was a false, a false report. It was out of jealousy. And he says well, w-w-will have, well have to see you in court. Im not going to testify. Im not gonna go to court.

[DEFENDANT]: What do you mean you[re] not gonna testify and you[re] not going to go to court?

VANESSA: Well I, w-w-what can I say, wha- if I dont go, if I dont show up.

[DEFENDANT]: Theyll arrest you guys.

VANESSA: Or if I- well then they can arrest me then.

[DEFENDANT]: Why the fuck you cant

VANESSA: Or if I, for, if I just go and say look, I didnt see nothin. The story got all twisted. It was out of anger.

They returned to this subject a few moments later:

[DEFENDANT]: I want to know what happened right now before you fuckin got a hold, whod you getwhod you talk to?

VANESSA: Its the sergeant. Its the, I guess its the sergeant thats, thats there twenty-four hours a day.

[DEFENDANT]: W-w-what what did you talk to him about?

VANESSA: I just told him, I said I made a false report and I said and I need to talk to you about it, and I gave him your name and he started laughing and he goes oh it was a false report and I said yes it was sir, it was done out of jealousy. I said you know, II set it up to where it was made out of jealousy cause I cant stand him. I hate him and he started laughing. He goes well then well have to see you in court when you testify, and I said Im not testifying anything. He goes Well well see you in court.

[DEFENDANT]: You didnt ask if you could talk to his supervisor?

VANESSA: No. I didnt know to do all that.

Defendant and Vanessa then proceeded to discuss ways in which she could help him if compelled to testify. They compared their situation to another case they knew of in which a witness testified contrary to her statement to police:

VANESSA: So when they mean Im going to have to go testify, theyre going to try to get me on the stand and sit there and tellsay all kinds of shit?

[DEFENDANT]: Yeah, theyre just going to say, look, she testified that night, like they did for the hyna Denise, but now shes changed her story because uh-[] [] she changed her story now because a, cause her husband a, because a, um, you know, this is what she did say but now shes saying this because of family or this or that. You know what I mean?

VANESSA: Uh huh. [] []

[DEFENDANT]: So, yeah, same old shit theyre going to do to you.

Vanessa expressed her willingness to do her best for defendant on the stand, but he quickly saw that she was not adhering to the story he meant her to tell. She, in turn, judged that his favored version departed too radically from the story previously told to the police:

VANESSA: So if I go up on the stand and I say I didnt see anything. I was, I did it out of jealousy. I tried calling to say that to them but they laughed at me, and Im telling you right now, I didnt see nothing. I never saw no gun on him.

[DEFENDANT]: On him you fuckin bitch, I wasnt even there. See what I mean?

VANESSA: Yeah. Well, you, you see, you dont understand what was said to the cops that day. But me and you need to talk about that at another time. Maybe Ill go visit you and we could talk about it.

The following day, defendant called again and spoke to his mother, Lulu. Lulu was distraught about defendants situation. Defendant responded with a confession:

[DEFENDANT]: Hello?

LULU: (Crying)

[DEFENDANT]: Whats wrong?

LULU: Your dad said they raised your bail to a million dollars.

[DEFENDANT]: Yeah.

LULU: And you have two strikes already.

[DEFENDANT]: Yeah. I told you guys. I told you guys.

LULU: I (Crying)

[DEFENDANT]: Yeah. Im gone already. (Inaudible) Whos there?

LULU: (Crying) Tommy.

[DEFENDANT]: Wait. What are you crying for? Huh?

LULU: Youre only 26.

[DEFENDANT]: And my lifes over.

LULU: (Inaudible)

[DEFENDANT]: My lifes gone. All right?

LULU: (Crying)

[DEFENDANT]: I told you that I did what I did for a reason.

LULU: (Crying)

[DEFENDANT]: And Id do it over again if I had [to]. My children are at risk with Jason around them.

He repeated this a few moments later to his father, but still blamed Vanessa:

FATHER: How you doing?

[DEFENDANT]: Im fine. I told you, Ill do it over again.

FATHER: Huh?

[DEFENDANT]: If I had a chance Ill do it over again. I told you.

FATHER: Youll do what over?

[DEFENDANT]: Whatever it takes. When Jason is a risk to my children.

FATHER: Like I told you (inaudible) yourself.

[DEFENDANT]: If theres no way, if theres a waywhat?

FATHER: You cant protect nobody if you dont protect yourself.

[DEFENDANT]: Okay look. Its, its too late now.

FATHER: I know its too late now. [] [] Man I wish you wouldnt have done this stuff but its too late.

[DEFENDANT]: Its not me! Vanessa! Vanessa.

FATHER: God almighty.

[DEFENDANT]: Vanessa.

FATHER: You can say what youre doing! Youre the one that put the gun down, youre the one that pulled the god damn trigger Tommy!

In another call defendant told Vanessa to persuade her family to hire a lawyer for him. She should do this, he said, by giving them his reasons for his actions: You tell them whats going on. You tell them what I was doing it for, what it was for. I was trying to scare that motherfucker away from the house because I know whats going to happen to him. He also told her, You guys need to stay away from the courts, you understand? and directed her to [h]ide out.

Finally, defendant had a plan for the remaining witness, Ruben. He would send someone to his house:

[DEFENDANT]: And what about the other dude?

VANESSA: I dont know about him. I asked Jason if he can get a hold of him and he said that they werent, that I guess theyre not talking, and I said well, can you get me his

[DEFENDANT]: Does the mother fuckin dude have his own place?

VANESSA: He lives with his mom, yeah. Not his own place, he lives with his mom.

[DEFENDANT]: Do you know where his mom lives?

VANESSA: Na uh.

[DEFENDANT]: You fuckin liar

VANESSA: I dont, I dont know.

[DEFENDANT]: Okay, look, okay, okay.

VANESSA: But Im, I can find out.

[DEFENDANT]: It, it better, look, is anybody to do it? You find out if Pink or Arturo are over there.

VANESSA: Okay.

[DEFENDANT]: Do you know what that is?

VANESSA; Yes, Tommy.

[DEFENDANT]: You make sure that my nephew gets to that mother fuckin house, knocks on the mother fuckin door.

VANESSA: All right.

Defendant and Vanessa then discussed other people named in the police report. Defendant thought he knew of someone who could find out how to get to one of them. Defendant was particularly interested to learn that one of the people named was a father:

VANESSA: Well, it actually, it was, it was a father, he said he was helping his son move his stuff and, and he

[DEFENDANT]: Its a dad?

VANESSA: Yeah.

[DEFENDANT]: Its a guys dad?

VANESSA: Older man, yeah.

The phone calls constitute very extensive evidence of a plan on defendants part to suppress evidence and manipulate witnesses in order to conceal the guilt to which he admitted. The final call reveals defendant plotting or trying to plot with Vanessa to intimidate Ruben. Defendant could not have fired the shots at Rubens residence personally because he was in jail, but he could have authorized this action. When a defendant authorizes a third persons attempt to suppress evidence, evidence of the attempt is admissible to show consciousness of guilt on the defendants part. (People v. Hannon (1977) 19 Cal.3d 588, 599.) In this case there was more than enough evidence to justify allowing the jury to decide whether defendant was responsible for the shots fired at Rubens parents house.

For these reasons, we reject defendants argument that the evidence should have been excluded under Evidence Code section 352 because of the likelihood that the jury would put it to the improper prejudicial use of showing his consciousness of guilt. Under the circumstances of this case, that was a proper use of it.

IV. Pitchess motion

Before trial, defendant filed a discovery motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 and Evidence Code sections 1043-1045. He requested documentation of citizen complaints against one of the police officers involved in the investigation. The motion alleged that the officer falsified a report of a warrantless search of defendants apartment by stating that he went into certain areas with consent, found certain evidence in plain sight, and took an incriminating statement from defendant. Defendant also filed a motion to suppress evidence derived from the search. The motion to suppress was unopposed and the court granted it. Then it conducted an in camera review of documents outside the presence of defendant and his counsel. It found that there was no discoverable information. The parties agree that we should review the sealed records of the in camera proceedings and decide whether the court acted within its discretion.

A court deciding a properly noticed Pitchess motion must first determine whether the motion shows good cause for production of any of an officers confidential personnel records. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) Next, the court must obtain potentially relevant personnel records from their custodian and review them for relevance at a hearing in camera. The court is then to order disclosure to the moving party any information relevant to the pending litigation. (Ibid.) We review the trial courts ruling for abuse of discretion. (Id. at p. 1228.)

In this case, a Bakersfield Police Department detective testified in camera as the custodian of records. He stated under oath that the departments records contained no citizen complaints against the officer. He also said he searched for all records that would go to the issue of dishonesty, false fabrication, reports, and things of that nature and found nothing relevant. The custodian brought the officers personnel file. The court reviewed it and found no relevant material. The court was not able to confirm independently that there were no citizen complaints against the officer because, as the custodian testified, the Bakersfield Police Department has a policy of keeping citizen complaints in a file separate from the personnel file, which the custodian did not bring to court.

We conclude that the trial court did not abuse its discretion. The trial court is not required to review all of an officers records; it may rely on the custodians selection of portions of the file that are potentially relevant and omission of portions that are clearly irrelevant or otherwise nonresponsive, combined with the custodians in camera testimony. (People v. Mooc, supra, 26 Cal.4th at p. 1229.) These procedures were followed here. With respect to citizen complaints, the court had discretion to rely on the custodians testimony that there were none; it did not have to demand that the custodian present an empty file folder to prove it.

V. Blakely/Cunningham claim

Defendants sentence included a doubled upper term for the grossly negligent-discharge count. Doubled upper terms for the other counts were imposed and stayed. Defendant argues that the imposition of these upper terms violated the Sixth Amendment as interpreted in Blakely, supra, 542 U.S. 296.

In Blakely, the Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendants Sixth Amendment right to a jury trial. (Blakely, supra, 542 U.S. at pp. 298, 304.) Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so. (Id. at p. 299.) The judge found that the crime was committed with deliberate cruelty, and imposed a sentence of 90 months. (Id. at p. 298.) The Supreme Court held that this violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 301.) It did not matter that the offense was a class B felony, and that class B felonies carried a maximum sentence of 10 years, because the states sentencing law did not allow the sentence to exceed 53 months without judicial factfinding. Our precedents make clear that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Id. at p. 303.) The court continued:

In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jurys verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, [citation], and the judge exceeds his proper authority. (Blakely, supra, 542 U.S. at pp. 303-304.)

After briefing was completed in this case, the United States Supreme Court issued its decision in Cunningham, supra, ___ U.S.___ [127 S.Ct. 856], overruling People v. Black (2005) 35 Cal.4th 1238 and holding that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, ___ U.S. ___ [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law is unconstitutional, therefore, unless it is based on prior convictions, facts found by the jury, or facts admitted by the defendant.

A. Effect of three-strikes findings

We hold that the imposition of upper terms did not run afoul of the Supreme Courts precedents in this case. The heart of the analysis of a sentence under Blakely is the determination of the maximum sentence. The maximum sentence within the meaning of Blakely is the greatest sentence the judge can impose based on the facts reflected in the jury verdict or admitted by the defendant, plus the fact of the defendants prior convictions, if any. The sentences imposed in this case did not exceed the maximum sentence within the meaning of Blakely because this was a three-strikes case. Defendant waived the right to a jury trial on the prior convictions alleged in the information and the court found those allegations true. No further findings were necessary before a three-strikes sentence of 25 years to life could be imposed. The courts decision on defendants Romero request was discretionary and could have been denied without any findings of fact. In other words, the maximum sentence available within the discretion of the sentencing court without any further factual findings, based on prior convictions to which defendant had waived a statutory right to a jury trial, was 25 years to life. The lesser sentence the court imposed was, therefore, permissible under Blakely and Cunningham.

B. Error, if any, was harmless

Even if this had not been a three-strikes case, any error in imposing the upper term would have been harmless. The courts findings in support of imposing the upper term were these:

The Court finds that there are no circumstances in mitigation.

In aggravation, the defendants prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous.

The defendants performance on probation prior to 2001 and parole was unsatisfactory due to term violations.

And the defendant has engaged in violent conduct, which indicates hes a serious danger to society, in that he previously served a prison commitment involving arson and terrorist threats and was convicted of spousal battery in another case.

In making these findings, the court applied four of the five offender-related aggravating factors set forth in California Rules of Court, rule 4.421: [t]he defendant has engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); [t]he defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness (rule 4.421(b)(2)); [t]he defendant has served a prior prison term (rule 4.421(b)(3)); and [t]he defendants prior performance on probation or parole was unsatisfactory (rule 4.421(b)(5)).

Several of the courts findings presupposed prior convictions: his prior convictions were numerous; his performance on probation and parole was unsatisfactory; he was a danger to society because of his prior convictions of violent crimes; and he served a prior prison term. At least one of thesethe defendants prior convictions as an adult  are numerouscannot meaningfully be distinguished from Blakelys formulation, approving the use of the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301) to increase a sentence. It would not make sense to say that the trial court is entitled to rely on one prior conviction but not on several.

Assuming, without deciding, that in a non-three-strikes case it would be error to rely on other factors in addition to defendants prior convictions, we are confident that the error would be harmless beyond a reasonable doubt under the circumstances of this case. (People v. Chapman (1967) 386 U.S. 18.) Given that defendants criminal history was the dominant fact in the background of all the aggravating factors the court found, there is no likelihood that the court would have imposed a different sentence if it had been directed that it could rely only on the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301) in imposing the upper term.

DISPOSITION

The judgment is affirmed.

_____________________

Wiseman, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Hill, J.

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^*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I, II.B, III, IV, and V.B.