P. v. Lambert

Filed 5/7/08 P. v. Lambert CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed.

Vincent J. La Barbera for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant James Anthony Lambert appeals his conviction on charges arising from a home invasion robbery and kidnapping. He claims the court committed numerous evidentiary errors and further erred by sentencing him to the upper term on one count. Because defendants arguments are without merit, we affirm.

I

FACTS

On the night of Saturday, February 8, 2003, brothers Kyle and Robert Sarfaraz^[1]were in Kyles apartment in Huntington Beach. At around 11:45 p.m., Kyle went to sleep while Robert watched a movie in another bedroom. Robert heard a noise at the door, and when he opened the door to his bedroom, he saw two men and one woman in the living room of Kyles apartment. The woman, later identified as Brandi Duncan, asked Robert who he was and whether Kyle was there. One of the men (later identified as defendant) grabbed Robert, threw him to the ground, and dragged him into a closet next to Kyles room. The other man (later identified as Philip Kaufman) pulled Kyle out of his bed, and kicked and hit him several times.

Both Kyle and Robert were eventually placed on the couch. Robert did not recognize any of the intruders; Kyle recognized Brandi Duncan from an incident several months before as someone known to a friend of his, Morgan Banks. While Kyle and Robert sat on the couch, the three intruders began looking through the apartment and taking various things, such as compact discs, Kyles cell phone and a laptop computer. Kyle told them to take whatever they wanted. As Robert sat on the couch, he looked at defendant at one point. Defendant pulled out a knife and held it to Roberts throat for two or three seconds.

Kyle told the intruders he would give them his ATM card and pin number, but Kauffman took Kyle to an ATM machine near the apartment, where Kyle withdrew $200. Defendant and Duncan remained with Robert at the apartment. During this time, defendant answered a cell phone call, and Robert noticed that defendant had a deep froggy voice.

Kauffman returned to the apartment with Kyle approximately 15 minutes later. Eventually the intruders left the apartment, carrying out items in various bags. Defendant warned the brothers against calling the police, telling them that if they did, he would have to make a house call. After some time had passed and they felt safe, the brothers went to a friends apartment and called 911. Robert gave descriptions of the intruders during the call, which did not include tattoos. Kyle was taken to a hospital where he was treated for memory loss, and head, neck and facial blunt force trauma. He was diagnosed with a severe concussion from closed head trauma and multiple contusions. Robert suffered abrasions to his neck, eye and back.

On February 14, Kyle provided Huntington Beach Police Detective Thomas Gilligan with a list of property stolen from his apartment. At that time, Kyle provided information that enabled Gilligan to connect Duncan to the incident. Gilligan and two other detectives had a conversation with a confidential informant who was familiar with this kidnap-robbery investigation and knew who the suspects were, naming Duncan, Kaufman and defendant.

Gilligan subsequently assembled photo lineups, and on February 20, Kyle identified defendant as one of the intruders. He also identified Duncan, but was unable to identify Kaufman. Robert also identified defendant and successfully identified Kaufman, but was unable to identify Duncan. A subsequent search of a Costa Mesa apartment where Duncan and Kaufman were present produced a number of items identified by Kyle as belonging to him.

Defendant was arrested on March 13. At that time, Gilligan observed a Nazi war bird tattoo that he had not seen in previous photos of defendant. Defendant was later charged, by amended information, with eight counts and numerous enhancements: kidnapping to commit robbery (count one, Pen. Code 209, subd. (b)(1));^[2]first degree robbery (counts two and three, 211, 212.5, subd. (a), 213, subd. (a)(1)); assault with a deadly weapon (counts four and five, 245, subd. (a)(1)); and false imprisonment by violence (count six, 236); dissuading a witness by force or threat (counts seven and eight, 136.1, subds. (a)(1), (c)(1)). On counts two and four, defendant was charged with great bodily injury enhancements ( 12022.7), and with personally using a knife on counts three and six ( 12022, subd. (b)(1)). With respect to priors, the information alleged two prior prison terms ( 667.5, subd. (b)), a prior serious felony ( 667, subd. (a)(1)), and a prior strike conviction ( 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)).^[3]

At trial, Morgan Banks testified that in late February 2003, defendant asked him if he knew someone who would want a paintball gun for $100. The gun was later identified as Kyles. Banks took possession of the gun and told law enforcement about it when they asked where defendant was.

At the conclusion of the trial, defendant was found guilty on all counts. All conduct allegations were found to be true, except the knife allegation regarding count three, which was dismissed by the prosecutions motion. The court later found all prior convictions to be true. Defendant was sentenced to life with the possibility of parole, plus 35 years and four months in state prison. This term included the upper term of nine years on count two, doubled to 18 years.

II

DISCUSSION

Identity of Confidential Informant

Prior to the preliminary hearing, Duncan filed a motion to discover the identity of the confidential informant who had provided information to the police. Defendant joined in the motion. She contended the informant could give evidence on the issue of guilt or innocence. The prosecutions opposition argued there was nothing to suggest that the informant was a percipient witness. After briefing and argument, the court agreed with the prosecution and denied the motion, declining to hold an in camera hearing. The court found that defendants had failed to establish there was a reasonable probability that the informant could give evidence on the issue of guilt or innocence.

Under Evidence Code section 1041, a public entity has a privilege to withhold the identity of a person who has furnished information purporting to disclose a violation of the law. This rule is supported by public policy. It is clear that the public interest would suffer if the disclosure were compelled of the names of those citizens who inform public officers of violation of law and who assist such officers in the performance of their duty to apprehend law violators. A citizen who knows that the fact would be made public that he has disclosed such information to public officers may be loath to cooperate in the administration of justice by exercising his right and duty to make such disclosures because he would justifiably believe himself to be in danger of physical violence from those upon whom he had informed, as well as in danger of actions of slander and malicious prosecution. (People v. Gonzales (1955) 136 Cal.App.2d 437, 441; overruled on other grounds in People v. McShann (1958) 50 Cal.2d 802.)

In the interests of fairness to the defendant, however, the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the burden of adducing some evidence on this score. [Citations.] (People v. Lawley (2002) 27 Cal.4th 102, 159.) [D]efendants showing to obtain disclosure of an informants identity must rise above the level of sheer or unreasonable speculation, and reach at least the low plateau of reasonable possibility. [Citation.] (People v. Luera (2001) 86 Cal.App.4th 513, 526 (Luera).) We give great weight to the trial courts determination, and thus review for abuse of discretion. (Williams v. Superior Court (1974) 38 Cal.App.3d 412, 421.)

Duncans counsel submitted the following declaration, in relevant part, in support of the motion to disclose the identity of the informant. A reasonable possibility exists that the informant mentioned in the police report of detective Gilligan, it is reasonable that the C/I could give evidence on the issue of guilt or innocence in this action that would result in the exoneration of the defendant in that such informant might testify to any number of specifics regarding the actual facts and circumstances that occurred on the day in question. Given the plethora of charges pending against Ms. Duncan, in that many of the charges are specific intent crimes. If the informant was present at the scene she/he could provide valuable information on the presence or absence of one or all of the elements necessary to bind the defendant over on the charges pending. This is especially the case in a situation such as this where the alleged victims are vague as to what did or did not occur on the day in question.

The facts put forth by defendants in support of the motion do not rise above the level of sheer or unreasonable speculation, and reach at least the low plateau of reasonable possibility. [Citation.] (Luera, supra, 86 Cal.App.4th at p. 526.) There is no showing the informant was a percipient witness, as the declaration suggests. The affidavit in support of the search warrant disclosed the informant was familiar with the investigation, and subsequently identified Duncan from a photo lineup. Where the informant is not a percipient witness, it is highly unlikely that he can provide information relevant to the guilt or innocence of a charge or information which rises from the arrest. (People v. Hardeman (1982) 137 Cal.App.3d 823, 828-829.) Such is the case here. Based on the entirely speculative factual showing, the trial court did not abuse its discretion in denying the motion to disclose the informants identity.

Cross-Examination of Morgan Banks

Defendant next raises three purported errors relating to the admissibility of witness testimony. A trial courts exercise of discretion in admitting or excluding evidence is reviewable for abuse. [Citation.] Abuse may be found if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner, but reversal of the ensuing judgment is appropriate only if the error has resulted in a manifest miscarriage of justice. [Citations.] (People v. Coddington (2000) 23 Cal.4th 529, 587-588, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

Defendant first contends that the trial court erred by preventing him from fully cross-examining witness Morgan Banks on issues related to a potential motive to fabricate testimony, and by later denying his motion to strike Bankss testimony. He claims these errors violated his Fifth, Sixth and Fourteenth Amendment rights to a fair trial and to present a defense.

Banks testified pursuant to an agreement for use immunity. The agreement required Banks to give a truthful account of his receipt of the paintball gun. In return, the prosecution agreed to recommend that the court accept Bankss guilty pleas to three counts in a separate case, dismissing the remaining counts and enhancements, and further agreed that Banks would receive probation and a nine-month sentence.

At trial, Banks testified that in late 2003, defendant asked him whether he knew anyone who wanted a paintball gun for $100. Banks took possession of the gun, and later told police where it was. On cross-examination, Banks acknowledged his agreement with the prosecution and the general terms of his plea bargain. During questioning about Bankss case, defendants counsel asked if Banks had told his attorney that he was not guilty of the charged crime. Bankss attorney objected on the grounds of attorney-client privilege.

Outside the presence of the jury, the court sustained the objection, noting it was required to protect the confidentiality of attorney-client communications and that what Banks told his attorney was not necessarily relevant. The court denied defendants motion to strike Bankss testimony. At the conclusion of evidence, the jury was instructed in the typical manner regarding witness credibility. The court also instructed the jury that Banks was an in-custody informant whose testimony should be viewed with caution and close scrutiny and the jury should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness.

We need not belabor this issue. Despite his lengthy argument, defendants contentions on this point are entirely without merit. The control of cross-examination of a prosecution witness on issues of credibility, while entitled to wide latitude, is within the sound discretion of the trial court, including the courts ability to properly exclude impeachment on collateral matters. (People v. Redmond (1981) 29 Cal.3d 904, 913.)

Defendants cross-examination of Banks was thorough, comprising approximately 70 pages of the reporters transcript. Bankss prior criminal record was before the jury, as was his drug habit. He was cross-examined extensively on his agreement with the prosecution.

Thus, Bankss motive for testifying falsely was made clear to the jury and amplified by proper instructions. What Banks told his attorney regarding his guilt in the case to which he pled guilty in exchange for his testimony was simply not relevant and was protected by the attorney-client privilege. Moreover, had it been admitted, it would not have reasonably resulted in a different impression of Bankss credibility before the jury. (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) Bankss bias and his motives were obvious to any reasonable juror. (See People v. Flores (1977) 71 Cal.App.3d 559, 565.) Thus, the court did not err and no violation of defendants constitutional rights occurred.

Rebuttal Testimony of Brandi Duncan

Defendant next claims that Brandi Duncan should not have been permitted to testify as a rebuttal witness. He claims her testimony did not rebut any defense evidence and required him to change his defense from misidentification to an alibi defense. He argues Duncans testimony violated his right to due process and confrontation of witnesses.

As noted above, prior to trial, Duncan and Kaufman, initially codefendants, pled guilty. Also prior to trial, defendants counsel sought to admit an audiotaped conversation between Duncan and Kaufman made after their arrest. This conversation, which took place in the back of a police car, discusses the gravity of their situation but does not mention defendant. The prosecutor objected on hearsay grounds, but noted that Duncan was available to testify and if she were to testify, it would be as a prosecution rebuttal witness. The court deferred ruling on the admissibility of the audiotape.

The prosecution did not call Duncan during its case in chief. Evidence was presented showing that defendant did not have the Nazi war bird tattoo at the time of the crime. During the defense case, Lisa Sanborn, the owner of a tattoo shop in Big Bear Lake, testified that on the day of the crime, defendant had received a Nazi war bird tattoo on his throat at her shop in Big Bear Lake.

After Sanborns testimony, the issue of the audiotape was revisited. Defendants counsel argued the statements were admissible under the state of mind and declaration against penal interest exceptions to the hearsay rule. The prosecutor indicated that Duncan had been transported to court as a rebuttal witness, but he was probably not going to call her. Over the prosecutors objection, the court ruled the audiotape admissible, but only if Duncan and Kaufman were available.

The defense case continued, with defense investigator David Marston testifying that he had spoken to Sanborn, who told him that defendant received a tattoo at her shop between 6 and 8 p.m. on the day of the crime. The defense then rested its case, without playing the audiotape. Defense counsel confirmed this was a strategic decision.

The prosecution then informed the court that it intended to call Duncan as a rebuttal witness. Defense counsel objected, and a hearing pursuant to Evidence Code section 402 was held. The offer of proof was brief Duncan would testify that she was present at the Sarfaraz apartment with defendant and Kaufman on the date in question and that defendant did not have the Nazi war bird tattoo at the time.

Defense counsel objected following the hearing, arguing that it was improper rebuttal. He asserted the only issue raised in his defense was whether defendant had the tattoo at the time of the crime, and that he had not put forward any alibi evidence. The court stated that if the defense was that defendant was not at the apartment because he was elsewhere getting a tattoo, then rebuttal testimony showing defendant was there without a tattoo was appropriate.

After further argument, the court noted: The difficulty that the court has in precluding the rebuttal offered . . . is that fact that your defense case is testimony that you believe allows the jury to reasonably infer that the defendant was not the third person at the crime scene because he had gotten a tattoo up to a mere few hours before the crime took place in a remote location, specifically Big Bear; and since he had the tattoo as of 11:45 p.m. that night, and the victims did not see the tattoo or any other tattoos that were on the defendants body, there is a clear mistaken identification of the defendant on the part of the two victims. Thats the implication in the defense case. [] In this courts view, the people can reasonably rebut that implication with testimony by someone who was present at the crime scene at 11:45 p.m. with the defendant, who, at that point in time, did not sport the neck tattoo. Duncan therefore testified that on the night of the crime, defendant was present with her at the Sarfaraz apartment, and at that time, he did not have a Nazi war bird tattoo on his neck.

The admission of rebuttal evidence lies within the trial courts sound discretion, and will not be disturbed absent an abuse of discretion. (People v. DeSantis (1992) 2 Cal.4th 1198, 1232.) Proper rebuttal evidence is restricted to that made necessary by the defendants case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt. [Citations.] A defendants reiterated denial of guilt and the principal facts that purportedly establish it does not justify the prosecutions introduction of new evidence to establish that which defendant would clearly have denied from the start. [Citations.] (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1302.)

Defendants evidence in this case was intended to prove that he was misidentified and therefore not in the apartment during the crime because that same day, he had received a tattoo on his neck in Big Bear Lake and neither victim identified him with the tattoo. Whether called a misidentification or an alibi defense, the evidence was intended to prove that defendant was not the person in the apartment. Therefore, Duncans testimony was directly relevant to rebut defense evidence, and there was no error.

Cross-Examination of Brandi Duncan

Defendant next argues that the trial court erred by precluding him from cross-examining Duncan regarding plea negotiations. During Duncans cross-examination, she testified in detail about her prior acquaintance with Kyle and her role in the crime. She claimed she had gone to the apartment to recover property for someone named Patrick Parasson. She further testified about statements she made during her arrest and admitted lying to police on numerous occasions. She testified about her own guilty plea and her sentence, stating that she had not received consideration for her testimony against defendant.

After defense counsel asked Duncan what sentence she had received after pleading guilty, a sidebar conference was held upon the prosecutors objection. Defense counsel argued Duncans sentence of six years, of which she must serve 85 percent, was relevant to her motive to fabricate testimony. Defense counsel further theorized that Duncan was offered a more lenient sentence if she testified against defendant, but refused, which created an inference that a codefendant was not involved. The trial court ruled that Duncan could be asked about her sentence, but not about plea negotiations, finding them irrelevant.

Thereafter, Duncan reaffirmed that she was not receiving a deal in exchange for her testimony. She testified about her sentence and further admitted that after she implicated defendant during an interview with police, she pled guilty and several serious charges against her were dismissed. On redirect, she again stated that she was not offered a lesser sentence at the time of her plea in exchange for testifying against defendant.

Once again, we review the exclusion of evidence for an abuse of discretion. The trial court found that any plea negotiations with Duncan were irrelevant, and we agree. Relevant evidence is that having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code,  210.) The specifics of Duncans plea negotiations had no reasonable tendency to prove or disprove defendants involvement. The only relevant facts were that Duncan had pled guilty and received a six-year sentence, points about which she was questioned at length. Defense counsel elicited the sequence of events, permitting the jury to reach a conclusion that despite the lack of a formal agreement, she was treated more leniently after implicating defendant. Nothing further was relevant, and there was neither evidentiary nor constitutional error.

Cumulative Error

Defendant claims the cumulative impact of the errors he alleges prejudiced him to such an extent that reversal is compelled. When a defendant alleges cumulative error, the relevant test is whether he has received due process and a fair trial. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) As we have found no error, we conclude that defendant received a fair trial and that due process is satisfied.

Sentencing Error

Defendant claims that under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), the trial court erred by imposing an upper term, violating his Sixth Amendment right to a jury trial. Respondent asserts the upper term was based on defendants recidivism and that any error was harmless beyond a reasonable doubt.

Defendants sentence, imposed on June 2, 2006, was life with the possibility of parole plus 35 years and four months in state prison. His challenge relates to count two, burglary, for which defendant was sentenced to 18 years, which was a doubling of the upper term of nine years. Defendant claims the upper term was imposed based on facts neither found by the jury nor admitted by defendant.

During sentencing, the trial court stated it had found that circumstances in aggravation outweighed those in mitigation. The court listed defendants prior convictions, including assault, battery, weapons possession, and firearms possession. The court also noted that defendants prior performance on probation and parole was unsatisfactory. Finding no factors in mitigation, the court imposed the upper term on count two.

In the pre-Cunningham era, courts had broad discretion in determining whether to impose the upper, middle, or lower term at sentencing. (See, e.g., People v. Scott (1994) 9 Cal.4th 331, 349.) Under Cunningham, however, before the court can sentence defendant to an upper term based on aggravating facts, a jury must find that any aggravating factors are true beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. at p. 873.) There is an exception, however, reaffirmed in Cunningham, for prior convictions. (Id. at p. 856 [The Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.] (italics added).)

In People v. Black (2007) 41 Cal.4th 799 (Black II), the court held that the statutory maximum is the upper term if there is any aggravating factor found true by the jury or admitted by the defendant, or if the aggravating factor related to a prior conviction. Black II is, of course, binding on this court. (Auto Equity Sales, Inc.v.Superior Court (1962) 57 Cal.2d 450, 455.) Defendant had prior convictions, and the court used these as the basis for imposing an aggravated sentence. Under Cunningham and the cases since, this is permissible, and the court did not err by imposing the upper term.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

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^[1]Because of their shared surname, we refer to Kyle and Robert by their first names. This is done for the ease of the reader, and no disrespect is intended. (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1.)

^[2]Subsequent statutory references are to the Penal Code.

^[3]Duncan and Kaufman were also charged, but pled guilty prior to trial.