P. v. Delacruz

Filed 8/30/07 P. v. Delacruz CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Kennedy-Powell, Judge. Affirmed.

Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Eddie Delacruz (defendant) appeals his conviction, following a jury trial, of one count of kidnapping for carjacking (Pen. Code, 209.5, subd. (a));[1] one count of second degree robbery ( 211); one count of evading an officer (Veh. Code,  2800.2); and one count of misdemeanor hit and run driving (Veh. Code, 20002, subd. (a).) Defendant contends his conviction must be reversed because the trial court committed prejudicial error by denying a Pitchess[2] motion for discovery of personnel records of the officers involved in defendants arrest, by excluding evidence concerning the victims prior misdemeanor conviction for soliciting prostitution, and by denying defendants motion for a mistrial predicated on an unsolicited statement by the victim after his testimony had concluded. We affirm the judgment.

BACKGROUND

On July 5, 2005, at approximately 4:00 a.m., Jorge Santamaria was driving his blue Plymouth van when he stopped for a red light at the intersection of Wabash and Evergreen Avenues in Los Angeles. He saw defendant walk from the sidewalk and approach the passenger side window, which was partway down. Defendant pointed a gun at Mr. Santamaria and told him not to move, and then reached through the passenger window and opened the vehicle door. Defendant entered the van, pointed the gun at Mr. Santamarias chest, and ordered him to drive. Approximately 20 minutes later, defendant ordered Mr. Santamaria to stop the van. Defendant demanded Mr. Santamarias money, and Mr. Santamaria handed defendant approximately $120. Defendant then ordered Mr. Santamaria to exit the van. Mr. Santamaria did so and subsequently located a payphone where he called 911.

Later that day, at approximately 9:00 p.m., Los Angeles Police Officer Warner Carias and his partner were in a marked police vehicle when they saw Mr. Santamarias van parked on Industrial Street in Los Angeles. Officer Carias saw a Latino man reclining in the front passenger seat. As the officers drove past the van, they checked the license plate number of the van on the patrol cars mobile terminal, and the officers learned that the van was stolen and that the suspect should be considered armed and dangerous. Officer Carias radioed another officer in a nearby unit and circled the block. When he returned to Industrial Street, the van was gone. Officer Carias contacted the police departments communication division and requested a broadcast of the description of the vehicle and its occupant.

Los Angeles Police Officer Larry Mendoza was on patrol with his partner in a marked police vehicle at approximately 9:00 p.m. on July 5, 2005, when he heard a radio broadcast about a stolen blue Plymouth van. Minutes later, he saw a vehicle matching that description near Palmetto and Colyton Streets. Officer Mendoza and his partner followed the van and verified that its license plate number was the same number reported in the radio broadcast. Officer Mendoza activated the lights and sirens on his patrol car; however, the driver of the van increased its speed rather than slowing down and pulling over. Officer Mendoza pursued the van and radioed additional police units and a police helicopter for assistance. During the pursuit, the driver of the van reached a speed of approximately 70 miles per hour in a 35 mile per hour zone.

Randy Marrujo, a court security officer employed by the United States Marshalls Service, was working at the federal courthouse on the evening of July 5, 2005, when he saw a light colored van run a red light through the intersection of Spring and Temple Streets and collide with another vehicle. After the collision, the van struck a light pole, and the driver of the van was partially ejected out of the drivers side window. Officer Marrujo subsequently identified defendant as the driver of the van. Defendant exited the van and ran westbound.

Los Angeles Police Officer Douglas Pierce and his partner, Sergeant Jim Lewis, responded to the collision at Spring and Temple Streets. Witnesses there directed the officers to a nearby parking lot, where two men were attempting to detain defendant. As Officer Pierce approached, defendant began to flee. Officer Pierce pursued, identified himself as a police officer, and ordered defendant to stop. Defendant turned around and sprayed pepper spray in Officer Pierces direction. A patrol car drove up, cutting off defendants path of flight, and following a struggle, defendant was taken into custody.

Los Angeles Police Officer Randy Blancq responded to the scene of defendants arrest and recovered a toy handgun from the passenger floorboard of the blue Plymouth van. Officer Larry Mendoza also responded to the scene of defendants arrest and booked into evidence the clothing defendant was wearing at the time of his arrest. Officer Mendoza found Mr. Santamarias driver permit in the front pocket of defendants jeans.

An information filed by the District Attorney of Los Angeles County charged defendant with kidnapping during the commission of a carjacking, carjacking, second degree robbery, evading a peace officer, and hit and run driving. The information further alleged that defendant had suffered one prior conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served three prior prison terms ( 667.5, subd. (b)). The jury convicted defendant as charged. Defendant waived his right to a jury trial on the prior conviction and prior prison term allegations and admitted the truth of those allegations.

The trial court vacated defendants conviction for carjacking as a lesser included offense of kidnapping during the commission of a carjacking and struck the prior prison term enhancements. The court then sentenced defendant to life imprisonment with a minimum term of 14 years, followed by a determinate sentence of 16 years and 10 months, consisting of an indeterminate life term for the kidnapping conviction, doubled as a second strike; a consecutive five-year term for the robbery conviction, doubled as a second strike; a consecutive term of 16 months (one-third the midterm, doubled as a second strike) for evading an officer; and a consecutive term of six months for hit and run driving. Defendant filed this appeal.

DISCUSSION

A. Pitchess Motion

Defendant filed a Pitchess motion for discovery of the personnel records of Los Angeles Police Officers Counts, Aguilera, Mendoza, and Paris. In support of the motion, defense counsel attached his own declaration stating that the officers personnel records were necessary because Defendant avers that he did not carjack the victim and therefore officer Counts and Aguilera are being dishonest when they indicate that he was the one described by the victim of the carjacking. Also defendant avers that these officers lied when stating that the van had no windows (windows surround it) and that the perpetrator had dark hair (the witness said black). Defendant alleges that officers Mendoza and Paris are lying about the chase of the defendant. Defendant alleges that there is no way they could have seen what they observed from so far away, and that they arrested him instead of the real perpetrator. [] . . . [] This evidence would be admissible and relevant to show the officer(s) have a propensity to engage in the alleged misconduct, and that the officer(s) engaged in such misconduct in this case. After hearing argument from the parties on October 18, 2005, the trial court denied the Pitchess motion.

1. Applicable Law

A criminal defendant has a limited right to discovery of a peace officers personnel records. [Citation.] Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045. [Citations.] (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 318 (Giovanni B.).) Evidence Code sections 1043 and 1045 provide a two-step procedure for the discovery of peace officer personnel records. First, the defendant must file a written motion for discovery of those records that includes [a] description of the type of records or information sought as well as [a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records of information from the records. (Evid. Code, 1043, subd. (b).) The threshold for showing good cause under Evidence Code section 1043 is relatively low. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.)

To show good cause, a defendant seeking Pitchess discovery must demonstrate both (1) a specific factual scenario that establishes a plausible factual foundation for the allegations of officer misconduct [citations], and (2) that the misconduct would (if credited) be material to the defense. [Citation.] (Giovanni B., supra, 152 Cal.App.4th at p. 319.) To demonstrate materiality, the defendant must show a logical link between the defense proposed and the pending charge and articulate how the discovery being sought would support such a defense or how it would impeach the officers version of events. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021 (Warrick).) A declaration submitted in support of a Pitchess motion must also describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report. . . . [] In other cases, the trial court hearing a Pitchess motion will have before it defense counsels affidavit, and in addition a police report, witness statements, or other pertinent documents. The court then determines whether defendants averments, [v]iewed in conjunction with the police reports and any other documents, sufficient to establish a plausible factual foundation for the alleged officer misconduct and to articulate a valid theory as to how the information sought might be admissible at trial. [Citation.] . . . What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. [Citations.] (Warrick, at pp. 1024-1025.)

Only after a defendant has demonstrated good cause must a trial court conduct an in camera review of the peace officer personnel records to determine whether they have any relevance to the issues presented. (Evid. Code, 1045; Warrick, supra, 35 Cal.4th at p. 1019.) An appellate court reviews the trial courts ruling on a Pitchess motion for abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 832.)

2. Officer Aguilera

Defendant contends the trial court abused its discretion by failing to conduct an in camera review of Officer Aguileras personnel records. The declaration submitted in support of defendants Pitchess motion avers that Officer Aguilera was dishonest when he indicated in his police report that Mr. Santamaria had identified defendant as the perpetrator of the carjacking and that Officer Aguilera lied when he stated that the van had no windows and that the perpetrator had dark hair.

The police report prepared by Officer Aguilera states that on July 5, 2005, he and his partner, Officer Counts, responded to a radio call concerning a robbery and met with the victim, Mr. Santamaria. The report further states that Mr. Santamaria described the suspect as a Hispanic male with black hair and brown eyes, approximately 30 years old, 5 feet 9 inches tall, and weighing 200 pounds. Officer Aguileras report does not identify defendant, nor does it state that the van had no windows.

Defendants averments concerning dishonesty in the preparation of Officer Aguileras report are unsupported, and he has failed to establish a plausible factual foundation for the alleged misconduct. The trial court did not abuse its discretion by denying an in camera review of Officer Aguileras personnel records.

3. Officers Mendoza and Paris

The declaration submitted in support of defendants Pitchess motion seeking discovery of the personnel records of Officers Mendoza and Paris states: [O]fficers Mendoza and Paris are lying about the chase of the defendant. Defendant alleges that there is no way they could have seen what they observed from so far away, and that they arrested him instead of the real perpetrator.

The police report prepared by Officer Paris states that he and Officer Mendoza heard a broadcast concerning a stolen blue Plymouth Voyager Van, and that they observed a vehicle matching that description in the area they were patrolling. The van had only one visible occupant. The officers confirmed that the vans license plate number was the same as that of the stolen vehicle. The officers pursued the van, and a high speed chase ensued during which they momentarily lost sight of the van near Spring and Temple Streets. As Officers Paris and Mendoza approached the intersection of Spring and Temple, they saw that the van had collided with another vehicle. A group of citizens flagged the officers down and informed them that the suspect had fled westbound on Temple Street. Officers Paris and Mendoza, along with other uniformed police officers who had responded to the scene, pursued the suspect on foot. Near Broadway and Temple Streets, Officers Paris and Mendoza saw two citizens attempting to detain a Hispanic man. As the officers approached, the citizens backed away, and the officers eventually subdued and arrested defendant.

Officer Pariss police report states that United States Marshall Officers Delmar and Marrujo advised Officer Mendoza that they had observed the vehicle collision on Spring Street and had seen a male Hispanic exit the van and run westbound toward Temple Street. Officers Delmar and Marrujo both identified defendant in a subsequent field identification as the man who had exited the van. Sergeant Lewis, who had observed defendant driving southbound on Santa Fe and 7th Street, also identified defendant as the driver of the stolen van. Officer Pariss report further states that two witnesses, Tapia and Montalvan, observed the collision, saw defendant exit the van, and chased him as he fled. Defendant sprayed Tapia in the face with pepper spray while Tapia was attempting to detain him.

Nowhere in Officer Pariss report does it state that he and Officer Mendoza personally observed defendant driving the stolen van or that they saw him exit the van following the collision on Spring Street. Defendants identification as the driver of the stolen van was based on the statements of other witnesses. Defendants averments concerning dishonesty by Officers Paris and Mendoza are thus unsupported. He has failed to present a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. (Warrick, supra, 35 Cal.4that pp. 1024-1025.)

Defendant cites People v. Hustead (1999) 74 Cal.App.4th 410 in support of his claim that an in camera review of the officers personnel files should have occurred before the trial court ruled on the Pitchess motion. That case, however, is distinguishable. In Hustead, the defendant, who was charged with evading a peace officer, admitted being the driver of the vehicle, but denied engaging in conduct the pursuing officers attributed to him during the pursuit. The court in Hustead concluded that the trial court abused its discretion by denying the defendants Pitchess motion without first conducting an in camera review of the officers records. (Hustead, at pp. 416-417.) Here, defendant avers only that he was not the driver of the stolen van, and that the officers lied by identifying him as such. Defendant does not dispute Officer Pariss description of the pursuit, or the drivers conduct while evading the pursuing officers. Neither Officer Paris nor Officer Mendoza identified defendant as the driver of the van. That identification was made by other witnesses who personally observed defendant driving or exiting the stolen van.

The trial courts denial of defendants motion for discovery of the personnel records of Officers Mendoza and Paris was not an abuse of discretion. (People v. Hill (2005) 131 Cal.App.4th 1089, 1094 [defendants allegations that merely contradict the statements of civilian witnesses are not sufficient to establish good cause for discovery of information relevant to dishonesty in officers personnel files].)

B. Evidentiary Ruling

Defendant claims the trial court erred by excluding evidence of a prior misdemeanor conviction that defendant sought to introduce for purposes of impeaching the victim, Mr. Santamaria. The trial court concluded that the victims prior conviction for solicitation of prostitution was not a crime of moral turpitude and therefore could not be used for impeachment purposes. Defendant maintains that the trial courts ruling denied him a full and fair opportunity to cross-examine the victim.

We conclude that any error in excluding evidence of the victims prior misdemeanor conviction was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of defendants guilt in this case was overwhelming. Sergeant Lewis identified defendant as the driver of Mr. Santamarias stolen van. Officers Delmar and Marrujo saw defendant exit the van after he collided with another motorist. Civilian witnesses Tapia and Montalvan pursued defendant after he fled on foot following the collision. These witnesses all identified defendant as the driver of the stolen van. Any issue concerning Mr. Santamarias veracity in identifying defendant as the perpetrator of the carjacking and robbery was overcome by the corroborating testimony of several witnesses. Defendant failed to establish that he would have received a more favorable result at trial had Mr. Santamarias prior misdemeanor conviction been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836.)

C. Motion for Mistrial

After his testimony at trial had concluded, Mr. Santamaria, who had testified with the assistance of a Spanish language interpreter, addressed the trial court in Spanish. Defense counsel objected, and then, out of the presence of the jury, made a motion for a mistrial. Defense counsel stated: Now what just happened is, according to my client who speaks Spanish, Mr. Santamaria just said in Spanish, [h]e threatened my life. If any of these jurors heard that, then a mistrial should be granted.

The trial court asked the Spanish interpreter to return to the courtroom, and questioned the interpreter about Mr. Santamarias statement. The interpreter responded: Oh, he was speaking about the fact that he has been receiving some threats at his home, him and his family, for him and his family, and that he wanted to bring that to your attention. The prosecutor stated that he had not heard Mr. Santamaria make the statement described by the interpreter.

The trial court then asked the jurors whether any of them had understood what Mr. Santamaria had said after his testimony had concluded. Juror Nos. 4, 7, and 8 raised their hands, indicating that they had understood the statement. The trial court addressed those jurors as follows: And you understand that you are bound to decide this case based upon only the evidence in this matter and . . . when he was going on in Spanish, that is not the evidence in this matter. And you have to decide this case solely on what was actually translated and in response to a question. Juror number seven, eight and four, would you be able to do that in this case? Each of the three jurors responded in the affirmative.

Out of the jurys presence, defense counsel argued that the trial courts admonition was insufficient, and renewed the motion for a mistrial. The trial court deferred ruling on the motion and addressed the jury as follows: I will instruct those three jurors that did understand the Spanish not to discuss your understanding of what was said in Spanish with any of the other jurors or with each other. Is that agreeable, jurors number seven, eight and four? Each of the three jurors answered yes. At the conclusion of the prosecutions case, the trial court denied the motion for a mistrial.

Defendant contends the trial court abused its discretion by denying the motion for a mistrial. A trial court has broad control over the proceedings during criminal trials. ( 1044.) A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.] (People v. Haskett (1982) 30 Cal.3d 841, 854.) A trial court should grant a mistrial only when a partys chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial. [Citation.] (People v. Bolden (2002) 29 Cal.4th 515, 555.)

No abuse of discretion occurred. Mr. Santamarias statement was brief and in Spanish. Only three jurors understood the statement, and the trial court admonished those jurors not to consider the statement, translate it for any of the other jurors, or discuss it among themselves or with the other jurors. Those admonitions were sufficient to cure any prejudice that may have been caused by the unsolicited statement. (People v. Martin (1983) 150 Cal.App.3d 148, 163.) The trial court did not err by denying defendants motion for mistrial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

CHAVEZ

We concur:

_______________________, P. J.

BOREN

_______________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Penal Code unless otherwise stated.

[2]Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).