P. v. Cardoza

Filed 4/7/10 P. v. Cardoza 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

----

A jury found defendant Lawrence Pepe Cardoza guilty of assault with a deadly weapon on a peace officer, evading a peace officer, driving against the proper direction of traffic while evading a peace officer, failing to stop at the scene of an accident, and driving under the influence of alcohol and/or drugs. The court found he had one prior strike, one prior serious felony conviction, and two prior prison terms, and sentenced him to 18 years 4 months in prison.

Defendant appeals, raising the following three contentions: (1) the court erred in admitting evidence of his prior criminal acts and his parolee status; (2) the court erred in denying his motion to discharge court-appointed counsel; and (3) we should review the sealed transcript and related records filed in relation to his motion to disclose peace officer personnel records to determine whether the trial court abused its discretion in denying the motion.

Finding no prejudicial error, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A

Current Crimes

At approximately 3:10 a.m. on December 8, 2007, California Highway Patrol Officer Christopher Sarabia was patrolling southbound State Route 99 with his partner, Officer Steven Hawkinson. Around Florin and Mack Roads, they saw defendant driving a Chevy Cobalt approximately 60 miles per hour weaving in and out of the lanes of traffic. Thinking defendant might be intoxicated, Officer Sarabia turned on the patrol cars flashing red lights. Defendant slowed his car down and complied with the officers request over his loudspeaker to exit Mack Road and pull off into a clearing.

Officer Sarabia walked toward defendants car and saw defendant making a lot of furtive movements. Defendant then sped off in his car. The officers followed with their patrol cars lights and sirens activated. Defendant ran a red light and drove 60 to 70 miles per hour in a 35-mile-per-hour business area. He then drove through a residential neighborhood (that had speed bumps) at a speed of 50 to 60 miles per hour in a 25-mile-per-hour zone.

Defendants car came to rest when it skidded up a driveway on Bamford Drive, just short of breaking through the garage door. Officer Sarabia attempted to pin the patrol car to defendants bumper and take defendant into custody. Defendant was looking around nervously and reaching down on the floorboard, leading Officer Hawkinson to believe defendant might have a gun. The officers started to get out of the patrol car while defendant revv[ed] the car back and forth hitting the patrol car at least twice, trying to get away. The officers were yelling at him to stop the car and let them see his hands. Defendant did not comply.

Defendant made eye contact with Officer Hawkinson (who was now out of the patrol car) and then accelerated his car toward the officer. Officer Hawkinson pointed his gun at defendant, pushed himself off the car to get out of its way, and fired two rounds, one immediately after the other.

Defendant accelerated his car, and the officers pursued him in their patrol car, notifying the dispatcher shots had been fired. Defendant continued through the residential neighborhood, hitting a Ford pickup, damaging a tree, and landing on the lawn of a house because he was driving too fast. He then accelerated back onto the main street toward the first area where officers had asked him to stop. Still driving too fast, defendant was unable to get into the proper lanes, so he overshot the eastbound lane and he proceeded eastbound on Mack Road in the westbound traffic lanes. He got onto State Route 99 by driving up the wrong direction of an off ramp. He drove the wrong way on the highway until he made a U-turn.

When officers caught up to defendant, his car was facing the wrong way, partially blocking the center median and the fast lane. Officer Sarabia tried to pin defendants car to the patrol car. Defendant was sitting in the car, flailing around but still revving the engine, trying to take off again. Officer Sarabia got out of the car with his gun drawn, but defendant would not obey his commands to stop and show [them his] hands. Eventually, a number of other officers were able to pull defendant from the car, restrain him, and take him into custody. He never told officers he had been shot, only that they had the wrong person and he had not done anything wrong.

Defendant had cocaine on his person and cocaine and morphine in his blood.

B

Prior Acts And Defendants Parolee Status

The People introduced evidence of two of defendants prior criminal acts -- a 2002 Vallejo arrest and conviction and a 2004 Sacramento arrest and conviction -- and his resulting parolee status.

1. Vallejo Prior Act

At approximately 3:00 a.m. in January 2002, Vallejo Police Sergeant John Miller noticed a Dodge Caravan at a gas station near the Marine World Parkway that had no front license plate. When the Caravan left the gas station with defendant driving, Sergeant Miller followed, turning on his overhead lights in his marked patrol car. Defendant then turned the Caravan into a business parking lot, immediately came out, and began accelerating onto the street. Sergeant Miller turned on the patrol cars siren and pursued the Caravan. Defendant drove the Caravan in excess of 60 miles per hour in 25- to 35-mile-per-hour zones and ran a red light and two stop signs. Thrice, Sergeant Miller attempted a pursuit intervention technique. The first time, defendant was able to recover after fishtailing. The second time, defendant repeatedly moved the Caravan in front of the sergeant to block him. The third time, defendant attempted to force the sergeant off the road into a row of parked vehicles. Finally, Sergeant Miller was able to stop the Caravan by making contact with it with his bumper. Defendant fled on foot through a residential area, hid under a truck, and was then arrested.

2. Sacramento Prior Act

Around 3:45 p.m. in September 2004, Sacramento Police Officer Ret Townsend was on patrol in Del Paso Heights when he attempted to pull over the car defendant was driving.[1] The officer turned on his patrol cars red lights and siren. Defendant appeared to be undecided as to whether to stop but then floored the car and took off. Defendant was travelling over 50 miles per hour in a residential school zone marked 25 to 30 miles per hour. Officer Townsend pursued him for 60 to 90 seconds. Defendants car eventually hit a curve and ended up crashing against a telephone pole. Defendant got out of the car, looked at the officer, and then took off running. Two other officers eventually caught and arrested him. Defendant was convicted and sentenced for felony evading a peace officer.

3. Defendants Parolee Status

For the September 2004 act, defendant was placed on parole. In November 2007, a warrant was issued for defendants arrest because he was no longer living at his residence of record. On December 8, 2007, defendant was a parolee-at-large.

DISCUSSION

I

Admission Of The Prior Acts And Evidence

Of Defendants Parolee Status

Defendant contends the court erred and violated his constitutional rights in admitting the two prior acts to prove common scheme or plan and motive for assault with a deadly weapon; admitting the two prior acts to prove intent[2] and common scheme or plan for evading a peace officer and driving against the proper direction of traffic while evading a peace officer; and admitting his parolee status to prove motive for these three charges.

A

The Prior Acts Were Admissible To Prove

Intent And Common Scheme Or Plan

Evidence a defendant has committed acts other than those currently charged is admissible to prove the existence of intent and a common scheme or plan. (Evid. Code, 1101, subd. (b).)

The relevance of prior acts to show intent and common scheme or plan is determined by the nature and degree of the similarity between such misconduct and the charged crime. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018 (Scheer).) The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) A greater degree of similarity is required in order to prove the existence of a common design or plan. (Ibid.)

Besides relevancy, [t]here is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. . . . On appeal, a trial courts resolution of these issues is reviewed for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371.)

Here, there was no abuse of discretion in admitting the prior acts to show common scheme or plan for assault with a deadly weapon and intent and common scheme or plan for evading a peace officer and driving against the proper direction of traffic while evading a peace officer. The two prior acts were extremely similar to the current acts and they were not unduly prejudicial.

The Vallejo prior act involved defendant violating the law (driving without a front license plate), speeding away from a police sergeant who was trying to lawfully detain him, running a red light and two stop signs, driving 50 to 60 miles through a 25-mile-per-hour residential neighborhood, thwarting the sergeants attempts to stop him by defendants use of his car offensively to the point of attempting to force the sergeant off the road, and then refusing to submit to the sergeant even when caught.

The Sacramento prior act involved defendant violating the law (the parties stipulated the officer had probable cause for the traffic stop), speeding away from an officer who lawfully was trying to detain him, driving 50 miles per hour through a 25-mile-per-hour residential school zone, crashing his car into a telephone pole, and refusing to submit to the officer when caught.

The current acts were extremely similar to both prior acts. The current acts also involved defendant violating the law (weaving in and out of lanes of traffic), speeding away from police officers who were lawfully trying to detain him who had their patrol cars lights and sirens activated, driving 50 to 60 miles per hour through a 25-mile-per-hour residential zone, skidding into a driveway, using his car offensively to try to hit one of the officers, running into a pickup and a tree, and refusing to submit to officers when caught.

Despite these similarities, defendant contends all of these acts were spontaneous events, precluding any finding of common scheme or plan. In support, he cites Ewoldt and Scheer.

In Ewoldt, our Supreme Court explained, The existence of [a common scheme] or plan may be proved circumstantially by evidence that the defendant has performed acts having such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. (Ewoldt, supra, 7 Cal.4th at pp. 393-394.)

In Scheer, the defendant stood trial for felony hit and run and vehicular manslaughter, and the prosecutor introduced evidence of the defendants prior acts of fleeing from police. (Scheer, supra, 68 Cal.App.4th at p. 1014.) The Second District Court of Appeal found the prior flight evidence inadmissible to prove a common scheme or plan, explaining as follows: Although the prior flight offense and charged crime were committed in a similar manner, i.e., appellant drove through residential areas recklessly with flagrant disregard for the safety of others, and shared the same general purpose of avoiding capture and accountability for his misdeeds, such characteristics are insufficiently probative to constitute evidence of a common plan or design. Instead, the only reasonable inference is that the prior flight and the charged crime were spontaneous events. . . . [] Neither flight was a planned event. Instead, each was a spur-of-the-moment response to an unexpected event . . . . (Scheer, at p. 1021.)

Regardless of the merits of Scheer, it was a reasonable inference in this case that the prior acts and the charged crimes were not a series of spontaneous acts but ones committed in a markedly similar manner, evidencing a common scheme or plan. (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) Contrary to defendants argument that the prior acts established no more than that [defendant] had a history of fleeing from police, it was a markedly similar manner in which he fled from police in each of these three cases that evidenced a common scheme or plan. One or both prior acts shared the following with the current crimes: defendant fled from police when they were lawfully trying to detain him, he led them on a high-speed chase through residential or business neighborhoods, he disregarded road signs and signals, used his car offensively against police when they used their patrol cars to try to pin in defendants car, crashed into inanimate objects, and refused to submit to the police when caught. Given these similarities, the court did not err in finding a common scheme or plan.

Despite these similarities, defendant makes much of the fact that in opposing the Peoples request for admission of the prior acts, defendants counsel agreed not to contest the allegations defendant evaded a peace officer and drove against the proper direction of traffic while evading a peace officer.

This apparent concession did not make the prior acts evidence inadmissible. The People still had to prove the elements of the offense beyond a reasonable doubt, and the not guilty plea put those elements at issue, regardless of whether defendant expressly contested them at trial. (Ewoldt, supra,7 Cal.4th at p. 400, fn. 4; People v. Balcom (1994) 7 Cal.4th 414, 422-423.)

This leaves the issue of whether the court abused its discretion in finding these acts admissible pursuant to Evidence Code section 352. Defendant contends the courts prejudice analysis as to admissibility of the priors to the current assault charge was erroneous or incomplete, and as to the evading charges, was nonexistent. We find no abuse of discretion.

The basic assessment we conduct is not the manner in which the trial court conducted the prejudice analysis or whether it was done explicitly on the record, but whether it was an abuse of discretion to admit the prior acts even if they were relevant. (See People v. Carter (2005) 36 Cal.4th 1114, 1151-1152 [trial court need not be explicit about weighing the probative value against the prejudicial effect; an appellate court reviews the ruling not the reasoning].) Here, there was no abuse.

As we have explained, the evidence was relevant and probative to show intent and common scheme or plan. Its probative value was increased by the fact the prior acts took place within four to six years of the current crimes. (People v. Balcom, supra, 7 Cal.4th at p. 427.)

Moreover, the prior acts were not unduly prejudicial. The court excluded testimony that might have evoked an emotional bias against defendant, such as evidence the prior acts involved the presence of marijuana and a stolen vehicle. (See People v. Bolin (1998) 18 Cal.4th 297, 320.) Moreover, because the uncharged acts resulted in criminal convictions, the potential for prejudice, undue consumption of time, or confusion of issues was reduced. (People v. Balcom, supra, 7 Cal.4th at p. 427.) The jury was not tempted to convict defendant of the charged offenses, regardless of his guilt, to assure that he would be punished for the prior acts. (Ibid.)

On this record, the court did not err, constitutionally or otherwise, in permitting the evidence of the prior acts to show intent and/or a common scheme or plan.

B

Evidence Defendant Was On Parole

Was Properly Admitted To Show Motive

Evidence a defendant is on parole for prior acts is admissible to show motive to flee, i.e., avoidance of service of additional prison time. (Scheer, supra, 68 Cal.App.4th at p. 1020, fn. 2.) Nevertheless, defendant contends the court abused its discretion here because he did not contest the allegations he evaded a peace officer and drove against the proper direction of traffic while evading a peace officer, so there was no issue subject to dispute. In an earlier part of the discussion, we addressed why defendants failure to present evidence and argue to the jury he was not guilty of these charges, where he still pled not guilty to the charges, did not deprive the People of the right to put on evidence to show all the elements of these crimes.

Defendant further contends an abuse of discretion occurred in admitting the evidence of his parolee status because there was no explicit balancing of the probative value against the prejudicial effect. Again, we have already explained that such explicit balancing need not appear in the record. What we do is review for abuse of discretion the implicit ruling that the probative value was not substantially outweighed by its prejudicial effect. (See People v. Carter, supra, 36 Cal.4th at pp. 1151-1152.) It was not.

The probative value was high: the evidence tended to show it was more likely than not defendant committed crimes that involved fleeing from police because he had a reason to do so, i.e., avoid service of another prison term. The prejudicial value was low: the parolee evidence was limited in scope, took up a very short amount of the trial testimony, and would not tend to provoke an emotional bias against defendant, especially given the fact that defendants parolee status had to do simply with failing to report a change of address. On this record, there was no error, constitutional or otherwise.

C

Admission Of The Prior Acts To Prove Motive

Defendant contends the prior acts were irrelevant to prove a motive for fleeing in this case, and their admission for this purpose was unduly prejudicial. As we explain, although the prior acts were inadmissible for motive, we find no prejudice.

Similarity of offenses is not necessary to establish motive. (Scheer, supra, 68 Cal.App.4th at p. 1018.) Rather, the existence of a motive requires a nexus between the prior crime and the current one. (Ibid.) For example, in a trial for murder of an officer in retribution, there was a direct relationship between that offense and a prior robbery where the defendant had been rendered a paraplegic by police. (Ibid.)

Here, as even the People concede, there was no nexus or direct link between the prior acts and the current crimes. The commission of the prior flight offenses did not provide incentive for defendant to commit the current crimes. (Scheer, supra, 68 Cal.App.4th at p. 1020.)

Nevertheless, there was no prejudice in admitting the evidence for motive. As we have already explained, the evidence of the prior acts was admissible to prove intent and common scheme or plan, and defendant offers no plausible rationale why, if the evidence was admissible for this purpose, it would have prejudiced him for the court to have instructed and the People to have argued that the jury could use the prior acts also to prove motive -- which is not an element of any of the offenses. On this record, there was no prejudicial error or constitutional violation.

II

The Court Did Not Err In Denying Defendants Marsden Motion

Defendant contends the court abused its discretion and violated his right to counsel in denying his motion to discharge court-appointed counsel. (People v. Marsden (1970) 2 Cal.3d 118.)

Defendant made the Marsden motion because, among other things, defense counsel would not call Lieutenant Lester as a witness. According to defendant, Lieutenant Lester was a very good witness for [his] case because she would contradict Officer Sarabia. Specifically, Lieutenant Lesters report stated the first officers to arrive on scene when the chase finally ended were Gomes and Harper, whereas Sarabia stated he and Hawkinson were the first to arrive. Lieutenant Lester also stated that Sarabia went back to the scene of the pursuit on Bamford Drive twice, whereas Sarabia stated he went back only once.[3]

Defense counsel explained she decided not to call Lieutenant Lester after interviewing her outside the hall that morning. Counsel tried to speak with Lieutenant Lester the previous week, but counsel was not able to get in contact with her so [she] went through liaison and had [Lieutenant Lester] here this morning.

Lieutenant Lester indicated to [counsel] that when [Lester] took Officer Sarabia back to the scene, [Sarabia] just sort of showed her where things happened. [Lester] couldnt remember any exact locations. [] She indicated a few other things that [counsel] found would -- after Sergeant Stigerts,^[[4]^] [counsel] felt, gave [the defense] some good information on the stand, [and counsel] felt like her testimony was going to be more damaging than helpful. [] And there was nothing that [counsel] got from her that [the defense] didnt get in a better way from another witness . . . . So counsel let her go this morning. Counsel did not find that the benefits of her testimony were outweighed by the detriment that would be caused.

The court denied defendants Marsden motion, finding that counsel had at all times properly represented the defendant.

On appeal, defendant contends the hallway discussion did not constitute an adequate investigation on counsels part under Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674], which sets forth the standard for ineffective assistance of counsel. He argues that calling Lester as a witness in the trial, and subjecting her to cross[-]examination is an entirely different venue than a brief chat in the courthouse hallway . . . .

Defendant further contends impeaching Officer Sarabias testimony was crucial because the officer changed his story at trial from his report on the single most important piece of evidence in the entire case. Specifically, at trial, Sarabia testified there was a large amount of space for defendant to drive away from the Bamford residence, but in an interview to an investigating officer he testified there had been only a limited amount of space for defendant to drive away from the Bamford residence.[5] Both of defendants contentions do not show abuse of discretion in the courts refusal to discharge counsel. (People v. Jones (2003) 29 Cal.4th 1229, 1245 [standard of review].)

As to defendants first contention, counsels performance was not deficient because regardless of the venue in which the interview with Lieutenant Lester occurred, counsel investigated Lester as a witness and then made a reasonable tactical decision not to call her. (People v. Lucas (1995) 12 Cal.4th 415, 436; Strickland v. Washington, supra, 466 U.S. 668 at p. 689 [80 L.Ed.2d at pp. 694-695]; In re Jones (1996) 13 Cal.4th 552, 564-565.) Lieutenant Lester could not remember the exact locations of where Officer Sarabia told her things had taken place on Bamford Drive and she indicated a few other things that led counsel to believe the lieutenants testimony would be more damaging than helpful. Moreover, it was reasonable for counsel to defer to her assessment of the witness and not simply put the lieutenant on the stand, as defendant suggests on appeal, so counsel could take a gamble that the lieutenants testimony would unfold favorably to defendant. In light of counsels investigation, not having Lester take the stand was a reasonable tactical choice. Disagreements about tactical matters are insufficient to compel discharge of appointed counsel where there is no complete breakdown in the attorney-client relationship. (People v. Crandell (1988) 46 Cal.3d 833, 859-860.) Here, there had not been a complete breakdown of that relationship.

As to defendants second contention, it too lacks merit because it was a reasonable tactical decision not to call Lieutenant Lester as a witness to impeach Officer Sarabia, and there was no complete breakdown of the attorney-client relationship because of it. Officer Sarabia was impeached by his contradictory statements regarding the space of egress defendant had from the Bamford residence. Counsel could have reasonably decided that impeaching Sarabia on peripheral matters such as which officers were the first to arrive on scene would be a net loss, given counsels assessment there were downsides to calling Lester as a witness. On this record, there was no error, constitutional or otherwise, in denying defendants Marsden motion.

III

The Trial Court Did Not Abuse Its Discretion

In Denying The Pitchess Motion

Defendant requests we review the sealed transcript and documents in connection with his motion to compel disclosure of peace officer personnel records filed pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535-540. We have reviewed the transcript that contains a description of the documents examined by the trial court to determine if the trial court abused its discretion in denying the Pitchess motion. It did not. (See People v. Hughes (2002) 27 Cal.4th 287, 330.)

IV

Presentence Credits

The recent amendments to Penal Code section 4019 do not operate to modify defendants entitlement to credit, as he was required to register as a sex offender, committed for a serious or violent felony, and/or had a prior conviction(s) for a serious or violent felony. (Pen. Code, 4019, subds. (b)(1), (2) & (c)(1), (2); Stats. 2009, 3d Ex. Sess., ch. 28, 50.

DISPOSITION

The judgment is affirmed.

ROBIE , Acting P. J.

We concur:

BUTZ , J.

CANTIL-SAKAUYE , J.

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[1] The parties stipulated the officer had probable cause to initiate the traffic stop.

[2] Defendant makes no separate factual argument why the prior acts were inadmissible to prove intent and why they were inadmissible to prove common scheme or plan. As he focuses on common scheme or plan, we do the same. Defendant does make an argument, which we address, that the prior acts could not come in to show intent and common scheme or plan for the evading charges because defendant chose not to contest those charges.

[3] Defendant was wrong on this point, as Officer Sarabia testified he went back twice to the Bamford residence.

[4] Sergeant Marnie Stigerts joined the car pursuit of defendant after she overhear[d] radio traffic that a suspect vehicle was fleeing two CHP officers and shots had been fired.

[5] At trial, Officer Sarabia explained that during the interview, he did not realize how wide the driveway really was.