P. v. Garcia
Filed 6/11/13 P. v. Garcia CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
EDWIN OMAR GARCIA,
Defendant and Appellant.
B237195
(Los Angeles
County
Super. Ct.
No. VA120179)
ORDER TO MODIFY OPINION,
REHEARING DENIED
[NO CHANGE IN JUDGMENT]
COURT:
It is ordered that the opinion
filed herein on May 21, 2013,
be modified by adding the following.
1. After
the first full paragraph on page 17, add a new paragraph at line 17 as
follows:
The trial court did not abuse its discretion. The declaration of defense counsel in support
of the Pitchess motion only refers to
Office Bojorquez making false statements—not to Sergeant Maretti. At no time before or during the hearing did
defense counsel specify why the motion should be granted as to Sergeant
Maretti.5 Officer Bojorquez
drafted the police report.
2. Move the footnote 5 mark from page 17,
line 18, after Maretti
new paragraph on page 17.
3. On
page 17, line 17, delete Assuming,
without deciding, that and add, Even
if.
4. Add
the following to page 18, line 2, after the close of the citation:
Whether an error is prejudicial because a defendant made a showing of
good cause in support of his Pitchess request
under Warrick, supra, 35 Cal.4th
1011, is determined under the standard of People
v. Watson (1956) 46 Cal.2d 818, 836 (People
v. Samuels (2005) 36 Cal.4th 96, 110.)
Defendant has not shown the prosecutor failed to disclose exculpatory evidence
known to it in violation of Brady v.
Maryland (1963) 373 U.S. 83 and that there is a reasonable probability of a
different result if the government’s suppression of evidence “‘undermines
confidence in the outcome of the trial.’â€
(Kyles v. Whitley (1995) 514
U.S. 419, 434; In re Williams (1994)
7 Cal.4th 572, 611.) It should be noted
that the Pitchess procedure “is the
only avenue by which citizen complaints may be discovered.†(People
v. Gutierrez, supra, 112 Cal.App.4th at p. 1475.) Because under Alford v. Superior Court (2003) 29 Cal.4th 1033, the prosecutor
does not generally have the right to possess and does not have access to
confidential peace officer files, the prosecutor has no duty to review the
files of all police officer witnesses for purposes of Brady. (See
1475.)
5. On
page 33, lines 6-7, delete
836 and add People v. Watson, supra, 46 Cal.2d at p. 836.
Petition for
Rehearing is denied. There is no change
in judgment.
MOSK,
J. TURNER,
P. J.
Filed
5/21/13 P. v. Garcia CA2/5 (unmodified
version)
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
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
EDWIN OMAR GARCIA,
Defendant and Appellant.
B237195
(Los Angeles County
Super. Ct. No. VA120179)
APPEAL from
a judgment of the Superior Court of the County of Los Angeles, Roger Ito and
Lori Ann Fournier, Judges. Affirmed as
modified and remanded.
Tamara
Zivot, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Marc A. Kohm and Steven E.
Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and
appellant Edwin Omar Garcia (defendant) was convicted of carrying a concealed
dirk or dagger. (Pen. Code, former §
12020, subd. (a)(4)
title="">[1]). On appeal, defendant contends that the trial
court erred by denying his motion to suppress evidence, failing to instruct the
jury on intent to conceal, ordering that he be restrained during trial,
imposing a prior prison term enhancement pursuant to section 667.5, subdivision
(b), failing to instruct the jury about lawful, transitory or momentary
possession of the dirk or dagger, admitting into evidence defendant’s three
prior convictions for impeachment purposes, and instructing the jury under
CALCRIM 226, as modified. Defendant also
contends that there is insufficient evidence to support the jury’s finding that
the knife recovered on his person was a dirk or dagger, the prosecutor engaged
in prejudicial misconduct by presenting false and misleading information and
argument, and he is
entitled to additional days of custody credit.
In addition, defendant contends that the trial court erred in
denying his Pitchess motion as to one
law enforcement officer, and requests that we conduct an independent review of
the in camera hearing regarding a second law enforcement officer to determine
whether it discloses error by the trial court.
We order that defendant’s abstract
of judgment be corrected to provide that he is entitled to additional custody
credits. We otherwise affirm the
judgment.
Factual
Background
1. Prosecution
Evidence
Huntington Park Police Department Officer Mario Bojorquez
testified that on June 9, 2011, he responded to a 911 call concerning a
domestic dispute at a residence in Huntington Park. Officer Bojorquez was the first officer to
arrive at the scene. Huntington Park
Police Department Sergeant Richard Maretti testified that he also responded to
the 911 call, and arrived at the scene after Officer Bojorquez arrived there.
Officer
Bojorquez testified that he saw defendant, who fit the description of a man
described in the 911 call, outside the door of the apartment, talking to a
woman—later determined to be defendant’s ex-girlfriend—on the other side of the
apartment door.
Officer
Bojorquez testified that he asked defendant whether he had any weapons or
anything illegal in his possession.
Officer Bojorquez asked defendant permission to search him. Sergeant Maretti testified that upon his
arrival at the scene he heard Officer Bojorquez ask defendant if defendant had
any weapons on his person and ask for permission to search him. Neither officer drew his weapon. Sergeant Maretti saw Officer Bojorquez search
defendant.
Officer
Bojorquez and Sergeant Maretti testified that Officer Bojorquez found a
fixed-blade knife on defendant’s person and handed it to Sergeant Maretti. Officer Bojorquez testified that he located
the knife in the left front pocket of defendant’s pants. Before Officer Bojorquez searched defendant
and found the knife in defendant’s pocket, he could not see any part of the
knife sticking out of defendant’s pocket, and he could not otherwise see that
defendant had a knife in his pocket.
Sergeant
Maretti testified that the total length of the knife found on defendant’s
person was about five inches long, and Officer Bojorquez testified that it was
about five and one half inches long.
Officer Bojorquez and Sergeant Maretti testified that the knife had a
two and one-half inch fixed blade and was capable of being used as a stabbing
weapon. Sergeant Maretti testified that
the knife had a pointed tip, a hand guard, and was sharp enough to penetrate
flesh. Two photographs of the knife in
question were introduced into evidence, and one of the pictures included the
knife next to a ruler.
Evidence
Defendant
admitted that in 2007 and 2008 he was convicted of three felony convictions for
crimes of moral turpitude. On June 9,
2011, defendant went to the apartment of Ayissa Navarro, his then girlfriend,
in Huntington Park. When he went inside
the apartment, she started screaming at him, stating “Get the fuck out,†and “I
hate you. I don’t want to be with you no
more.†Navarro pushed defendant out of
the apartment and they continued to argue.
Navarro said to defendant that she knows he had been cheating on her and
that the relationship was over, and she went back inside the apartment. Defendant told her he would not leave until
they spoke. When defendant tried to go
inside the apartment, Navarro came back outside with a knife in her hand. When asked to describe the knife, defendant
testified, “it was a dirk and dagger.â€
Navarro jabbed the knife toward defendant, and told defendant, “Get the
fuck out of here.â€
Defendant
was worried at first, but then became “pissed off.†He testified that, “I grabbed her hand and
end up snatching the knife away from her.â€
Defendant used his right hand to reach for the knife and put the knife
in his pocket. He did not throw it on
the ground because Navarro could have picked it up and used it against
him. Defendant told Navarro, “we need to
talk,†and began to follow Navarro back into the apartment in an effort to talk
with her.
At that
time, Officer Bojorquez “grabs†defendant by the arm and tells him, “Come over
here . . . and put your hands behind your head.†Officer Bojorquez searched defendant. Officer Bojorquez did not ask defendant if he
had anything on his person, and did not ask for permission to search him. Officer Bojorquez searched defendant and
found the knife. As Officer Bojorquez
found the knife, defendant repeatedly said, “I just took it away from my
crazy-ass girlfriend.†Officer Bojorquez
said, “Be quiet, dude.†Defendant sat
down and noticed that he was bleeding from a small cut on his hand, and said to
Officer Bojorquez, “Look, I can prove to you I just took the knife away from my
girlfriend,†but Officer Bojorquez was on his walkie-talkie and “pretty muchâ€
ignored defendant. Defendant was placed
in a patrol car, asked Officer Bojorquez why he was being arrested, and told
the officer to look at his hand. Defendant
introduced into evidence a photograph taken about one week after the June 9,
2011, incident depicted a cut on defendant’s hand.
On
cross-examination, defendant said the knife had been measured improperly, and
that the photograph of the knife next to a ruler had been forged—“[t]hey added
an extra inch.†Defendant acknowledged,
however, that the knife could be used as a stabbing weapon, stating, “It almost
was on me.â€
Rebuttal Evidence
During
rebuttal, the prosecution called one witness—Officer Bojorquez. Officer Bojorquez testified that after
defendant denied having any weapons or anything illegal, Officer Bojorquez
asked defendant, “Is it okay for me to search you?,†and defendant said,
“Yes.†When Sergeant Maretti asked
defendant if the knife they found on him was his, defendant said that it
was. Defendant told the officers, “I
thought it was legal. It’s under 4
inches.†Sergeant Maretti told defendant
that it was illegal to carry a fixed blade, and when Sergeant Maretti asked
defendant why he had the knife in his possession, defendant responded, “Because
I do.†Defendant did not say anything to
the officers about Navarro having the knife, or attempting to stab him with the
knife. Defendant was not bleeding when
he was taken into custody, and Officer Bojorquez saw defendant’s hands but did
not see any cuts on them.
B.
Procedural
Background
The District Attorney of Los
Angeles County filed an information charging defendant with carrying a
concssealed dirk or dagger in violation of section 12020, subdivision
(a)(4). The District Attorney alleged
that defendant had one prior “strike†conviction within the meaning of sections
1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i),
and had served four prior prison terms within the meaning of section 667.5,
subdivision (b).
The trial court denied defendant’s
motion pursuant to section 1538.5 to suppress evidence. The trial court partially granted defendant’s
motion pursuant to Pitchess v. Superior
Court (1974) 11 Cal.3d 531 (Pitchess),
and after conducting an in camera hearing, found that there were no records to
disclose. Following a trial, the jury
found defendant guilty of carrying a concealed dirk or dagger in violation of
section 12020, subdivision (a)(4). The
trial court found true the prior conviction allegation, and that defendant had
served two, not four, prior prison terms.
The trial court sentenced defendant
to state prison for a term of six years, consisting of a middle term of two
years—doubled for the prior strike conviction—plus two years for the prior
prison terms. The trial court awarded
defendant 182 days of custody credit consisting of 122 days of actual custody
credit and 60 days of conduct credit.
DISCUSSION
to Suppress
Defendant
contends that the trial court violated his rights under the Fourth Amendment
against unreasonable searches and seizures by denying his motion to suppress
evidence because there was not substantial evidence that he consented to the
search. We disagree.
1. Standard
of Review
“‘The
standard of appellate review of a trial court’s ruling on a motion to suppress
is well established. We defer to the
trial court’s factual findings, express or implied, where supported by
substantial evidence. In determining
whether, on the facts so found, the search or seizure was reasonable under the
Fourth Amendment, we exercise our independent judgment. [Citations.]’
(People v. Glaser (1995) 11
Cal.4th 354, 362 [45 Cal.Rptr.2d 425, 902 P.2d 729]; see People v. Jenkins (2000) 22 Cal.4th 900, 969 [95 Cal.Rptr.2d 377,
997 P.2d 1044].) In determining whether
substantial evidence supports the trial court’s findings, ‘[i]f there is
conflicting testimony, we must accept . . . the version of
events most favorable to the People, to the extent the record supports them.’ (
[327,] 342.)†(People v. Boulter (2011) 199 Cal.App.4th 761, 767.)
Law
“The Fourth
Amendment to the United States Constitution guarantees freedom from
unreasonable search and seizure. (U.S.
Const., 4th Amend.; U.S. Const., 14th Amend.; People v. Rogers (2009) 46 Cal.4th 1136, 1156 [95 Cal.Rptr.3d 652,
209 P.3d 977]; see Cal. Const., art. I, § 13.)
A warrantless search and seizure is presumptively unreasonable under the
Fourth Amendment. (People v. Rogers, supra,
46 Cal.4th at p. 1156.) An ‘established
exception to the warrant requirement is when consent is given by one authorized
to give it. [Citations.] By consenting to a warrantless search, one
waives the right protected by the Fourth Amendment. [Citations.]
[¶] . . . [¶] . . . [C]onsent to enter and
search may be express or implied . . . . [Citations.]’
(People v. Superior Court (
1011-1012 [139 Cal.Rptr.3d 298].)†(
194, 199.) A defendant may file a motion
under section 1538.5 to suppress evidence obtained as a result of a warrantless
and unreasonable search or seizure. (
476.)
3. Background and
Procedural Facts
On September 30, 2011, the trial
court considered defendant’s motion to suppress evidence filed under section
1538.5 seeking to suppress as evidence the knife Officer Bojorquez recovered
from defendant. Defendant contended that
Officer Bojorquez’s search of his person was illegal.
a. Prosecution Evidence
At the hearing on defendant’s motion
to suppress, Officer Bojorquez testified that on June 9, 2011, he responded to
a dispatch call about a man arguing with his girlfriend at an apartment complex
in Huntington Park. Officer Bojorquez
was the first officer to arrive at the scene, and upon his arrival he saw
defendant, who fit the description provided to Officer Bojorquez by the
dispatch operator, near a closed apartment door and talking to a woman on the
other side of the door. No officers had
arrived at the scene before Officer Bojorquez contacted defendant. Officer Bojorquez “asked [defendant] if he
had any weapons on him or anything illegal on his possession. [Defendant] said, No. [Officer Bojorquez] asked [defendant] if
[Officer Bojorquez] could search [defendant].
[Defendant] said, Yes.†That
conversation between took about two seconds.
Officer Bojorquez testified that
Sergeant Maretti arrived at the scene and was present when defendant gave his
consent to search. Defendant was not
handcuffed or in the patrol car when he gave Officer Bojorquez permission to
search him, and Officer Bojorquez did not touch defendant before beginning the
search. Officer Bojorquez then
“conducted a search [of defendant’s person], [and] located a fixed blade in
[defendant’s] front left pants pocket.â€
b. Defendant’s Evidence
At the hearing on defendant’s motion
to suppress, defendant testified that while he was talking to his girlfriend,
Officer Bojorquez “grabbed me by the arm, told me: Come over here; told me put my hands behind
my head, and started searching me.â€
Officer Bojorquez never asked defendant for permission to search him,
and defendant never gave consent to Officer Bojorquez to be searched.
c. Trial Court’s Ruling
The trial court denied defendant’s
motion to suppress, stating, “Based on the testimony I heard, the 1538.5 motion
is denied. I find there was a consensual
encounter in that the officer had consent to search [defendant].â€
4. Analysis
Officer
Bojorquez testified that defendant denied that he “had any weapons on him or
anything illegal on his possession.â€
Officer Bojorquez also testified that he then asked defendant if Officer
Bojorquez could search him, and defendant replied “Yes.â€
Defendant
contends that Officer Bojorquez’s testimony that defendant consented to the
search was not credible because defendant, knowing that he had a knife in his
pocket, would not have consented to a search of his person. Although it may have been unwise for
defendant to consent to the search, it does not follow that Officer Bojorquez’s
testimony that defendant had done so was not credible and should be
disregarded.
Citing
Cal.App.2d 645 (Dickerson), defendant
contends that the trial court erred in adopting Officer Bojorquez’s version of
the events over that of defendant’s version because his version was “equally
credible†to Officer Bojorquez’s version.
In that case, the trial court, confronted with two conflicting versions
of whether the defendant gave the law enforcement officers consent to search,
stated that it “‘must believe one or the other.’†(Id.
at pp. 650-651.) The court rejected the
trial court’s assertion that in the face of conflicting testimony, it had to
believe one or the other, stating, “The court’s statement that it ‘must believe
one or the other’ simply is not correct.
If the court found itself unable to determine whether Officer Helvin or
Miss Jones were speaking the truth, it was perfectly free to draw the legal
consequence from its inability, that is to say, to hold that the prosecution
had not carried its burden of proof.
Since the court’s finding was made pursuant to a nonexisting compulsion,
it must be deemed erroneous.†(
does preclude a trial court, as occurred here, from relying on an officer’s
testimony that a suspect consented to a search because it conflicts with
defendant’s testimony.
trial court here did not state that it must believe Officer Bojorquez or
defendant. Here the trial court did not
suggest that it was unable to determine who was speaking the truth.
Defendant
contends that Officer Bojorquez’s testimony that defendant consented to the
search should be rejected because Officer Bojorquez’s testimony that during his
two-second conversation with defendant Sergeant Maretti arrived at the scene
and was present when defendant gave his consent to search, was not
credible. Notwithstanding defendant’s
contention to the contrary, it is reasonable to conclude that Sergeant Maretti
arrived at the scene during the two-second conversation between Officer
Bojorquez and defendant.
Defendant
contends that assuming defendant consented to the search based on the testimony
of Officer Bojorquez, Officer Bojorquez exceeded the scope of that search
because Officer Bojorquez testified that defendant gave consent to a search
only after denying that he had “any weapons.â€
Defendant argues therefore that his consent to a search was necessarily
limited to a patdown search pursuant to Terry
v. Ohio (1968) 392 U.S. 1.
name="_ftnref2" title="">[2] According to defendant, “When the officer
reached into [defendant’s] pocket for the knife, he strayed well outside the
scope of [defendant’s] alleged consent,†and there was no testimony that
Officer Bojorquez felt something in defendant’s pocket or otherwise justified
the officer’s search of defendant’s pocket.
We disagree.
Under Terry
v. Ohio, supra,
suspect, the officer may pat down the suspect’s outer clothing if the officer
has a reason to believe the suspect may be armed. (Id.
at p. 30; see People v. Lopez (2004)
119 Cal.App.4th 132, 135-136.) Unless as
a result of the patdown search the officer detects that a suspect’s pocket
contains an object of “incriminating character†that is “immediately apparent,â€
an officer may not search the suspect’s pocket to retrieve the object. (Minn.
v. Dickerson (1993) 508 U.S. 366, 375; People
v. Collins (1970) 1 Cal.3d 658, 662; People
v. Dickey (1994) 21 Cal.App.4th 952, 957.)
“The standard for measuring the scope of a suspect’s consent under the
Fourth Amendment is that of ‘objective’ reasonableness—what would the typical
reasonable person have understood by the exchange between the officer and the
suspect? [Citations.]†(Florida
v. Jimeno (1991) 500 U.S. 248, 251.)
As noted
above, a limited patdown search of a suspect’s clothing under
when the officer has reason to believe the suspect may be armed. (Id.
at p. 30.) Officer Bojorquez testified
that defendant gave consent to a search after he denied having “any weapons on
him†or anything illegal on his possession.
Defendant’s consent to the search was not expressly limited to a
“patdown†search. He consented to being
searched, and that consent does not reasonably imply that it was limited to a
patdown search pursuant to Terry v. Ohio,
supra, 392 U.S. 1. It was reasonable
for the trial court to conclude that defendant’s consent was consistent with
the search undertaken by Officer Bojorquez—reaching into defendant’s pocket and
retrieving the knife.
B. Sufficiency
of Evidence in Support of True Finding That the Knife Was
a Dirk or Dagger
Defendant
contends that there is insufficient evidence to support the jury’s finding that
the knife recovered on his person was a dirk or dagger. We disagree.
1. Standard
of Review
“‘In
reviewing the sufficiency of evidence under the due process clause of the
Fourteenth Amendment to the United States Constitution, the question we ask is
“whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.â€â€™ ([People v.] Rowland
[(1992)] 4 Cal.4th [238,] 269 . . . .) We apply an identical standard under the
California Constitution. (
‘In determining whether a reasonable trier of fact could have found
defendant guilty beyond a reasonable doubt, the appellate court “must view the
evidence in a light most favorable to respondent and presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.â€â€™ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606
P.2d 738].)†(People v. Young (2005) 34 Cal.4th 1149, 1175.) In reviewing the sufficiency of the evidence,
“a reviewing court resolves neither credibility issues nor evidentiary
conflicts. [Citation.] Resolution of conflicts and inconsistencies
in the testimony is the exclusive province of the trier of fact. [Citation.]â€
(Id. at p. 1181.) We will reverse for insufficient evidence
only if ‘“‘“upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’â€â€™â€
(People v. Manriquez (2005) 37
Cal.4th 547, 577.)
There is
sufficient evidence to support the finding that the knife recovered on
defendant’s person was a dirk or dagger.
Section 12020 stated: “(a) Any
person in this state who does any of the following is punishable by
imprisonment in a county jail not exceeding one year or in the state
prison: [¶] . . . [¶] (4) Carries concealed upon his or her person
any dirk or dagger.†The statute defined
a dirk or dagger as “a knife or other instrument with or without a handguard
that is capable of ready use as a stabbing weapon that may inflict great bodily
injury or death. A nonlocking folding
knife, a folding knife that is not prohibited by Section 653k [(i.e., a
switchblade)], or a pocketknife is capable of ready use as a stabbing weapon
that may inflict great bodily injury or death only if the blade of the knife is
exposed and locked into position.†(§ 12020, subd. (c)(24)
The
trial court instructed the jury with CALCRIM No. 2501, which provides in part
that, “Great bodily injury means
significant or substantial physical injury.
It is an injury that is greater than minor or moderate harm.â€
Sergeant
Maretti testified that the total length of the knife was about five inches
long. Officer Bojorquez testified that
it was about five and one half inches long.
Officer Bojorquez and Sergeant Maretti testified that the knife was
capable of being used as a stabbing weapon, and had a two and one-half inch
fixed blade. Sergeant Maretti testified
that the knife had a pointed tip and was sharp enough to penetrate flesh. Two photographs of the knife were introduced
into evidence. Defendant described the
knife as “a dirk and dagger,†and he testified that the knife could be used as a
stabbing weapon, stating, “It almost was on me.†Defendant also testified that he did not
throw the knife on the ground because Navarro could have picked it up and used
it against him.
C. Failure to Instruct Jury Regarding
Intent to Conceal
Defendant
contends that his right to a jury trial and due process of law under the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution were
violated by the trial court in failing to instruct the jury on intent to
conceal in connection with his conviction for carrying a concealed dirk or
dagger in violation of section 12020, subdivision (a)(4). We disagree.
1. Standard
of Review
We review
claims of instructional error de novo. (
702, 707; People v. Burch (2007) 148
Cal.App.4th 862, 870.)
As noted above, section 12020
stated: “(a) Any person in this state
who does any of the following is punishable by imprisonment in a county jail
not exceeding one year or in the state prison:
[¶] . . . [¶] (4)
Carries concealed upon his or her person any dirk or dagger.†The trial court instructed the jury with CALCRIM No. 2501,
stating, inter alia, “The defendant is
charged with unlawfully carrying a concealed dirk or dagger, in violation of
Penal Code section 12020(a). [¶] To prove that the defendant is guilty of this
crime, the People must prove that:
[¶] 1. The defendant carried on his person a dirk or
dagger; [¶] 2. The defendant knew that he was carrying it;
[¶] 3.
It was substantially concealed on the defendant’s person; [¶] AND [¶]
4. The defendant knew that it
could readily be used as a stabbing weapon.
[¶] The People do not have to
prove that the defendant used or intended to use the alleged dirk or dagger as
a weapon.â€
Defendant
contends that intent to conceal the dirk or dagger is an element of a violation
of section 12020, subdivision (a)(4), and the trial court erred in failing to
instruct the jury on intent to conceal the instrument. Defendant, however, does not cite to any
authority to support his contention, and acknowledges that the Supreme Court in
People v. Rubalcava (2000) 23 Cal.4th
322 “left open the question of whether carrying a concealed dirk or dagger
requires that the defendant intend to conceal the instrument.†(Id.
at p. 338, fn. 1 (conc. opn. of Werdegar, J.).)
Defendant
quotes Justice Werdegar’s concurring opinion that, “Imposing an
intent-to-conceal requirement would . . . be an effective way of
narrowing the statute’s overbroad scope; the carpenter who puts an awl in his
pocket, or the parent carrying a kitchen knife to the PTA potluck, would
probably not be found to have intentionally concealed the instrument.†(People
v. Rubalcava, supra, 23 Cal.4th
at p. 338, fn. 1 (conc. opn. of Werdegar, J.).)
Justice Werdegar acknowledged that “Neither the statutory language nor
the legislative history is explicit on this point. Reading an intent-to-conceal element into the
statute may not be consistent with its overall purposes, as carrying a
concealed dagger is dangerous to public safety whether or not the bearer
purposely concealed the weapon.†(
Because the offense does not include a requirement that defendant intend
to conceal the instrument from other persons, the trial court had no duty to
instruct on this element. (
Even if the
trial court erred by not giving the instruction, the error was harmless. “[A]n erroneous instruction that omits an
element of an offense is subject to harmless error analysis under
[17 L.Ed.2d 705, 87 S.Ct. 824].
[Citations.] In general, the
“beyond a reasonable doubt that the error complained of did not contribute to
the verdict obtained.â€
[Citations.]’ [Citation.]†(People
v. Gonzalez (2012) 54 Cal.4th 643, 663.)
Defendant
testified that immediately before Office Bojorquez arrived at the scene,
defendant put the knife in his pocket.
Officer Bojorquez testified that defendant denied having any
weapons. The knife was concealed in
defendant’s pocket—Officer Bojorquez could not see any part of the knife
sticking out of defendant’s pocket, and he could not otherwise see that
defendant had a knife in his pocket.
Defendant told the officers that the knife belonged to him. Any error by the trial court in failing to
instruct the jury on intent to conceal the dirk or dagger was harmless beyond a
reasonable doubt.
Because we
conclude that the trial court did not err in not instructing the jury on intent
to conceal, and even if it did err it was harmless error, we do not reach the
Attorney General’s contention that defendant forfeited his contention.
Defendant
contends that the trial court erred in denying his Pitchess motion as to Sergeant Maretti, and requests that we
conduct an independent review of the in camera hearing regarding the review of
Officer Bojorquez’s personnel
records to determine whether it discloses error by the trial court. The Attorney General contends that the trial
court did not err in denying defendant’s Pitchess
motion as to Sergeant Maretti, and agrees with defendant that we should review
the in camera proceedings to determine whether the trial court erred.
of the Pitchess Motion as to Sergeant Maretti
a. Standard of Review
We review
the trial court’s ruling on the Pitchess
motion for abuse of discretion. (
1286; see also People v. Hughes (2002)
27 Cal.4th 287, 330 [“A trial court’s ruling on a motion for access to law
enforcement personnel records is subject to review for abuse of discretionâ€].) “[T]rial courts have broad discretion in
ruling on motions to discover police personnel records . . . .†(Alford
v. Superior Court (2003) 29 Cal.4th 1033, 1043; People v. Samayoa (1997) 15 Cal.4th 795, 827.)
b. Background
Facts
On August 11, 2011, defendant filed
a pretrial discovery motion pursuant to Pitchess,
supra, 11 Cal.3d 531 (
of confidential personnel records for Sergeant Maretti and Officer
relating to “fabrication of reasonable suspicion and/or probable cause, illegal
search/seizure, . . . writing of false police
reports, . . . and any other evidence of misconduct amounting to
moral turpitude . . . .â€
As to Sergeant Maretti, defendant’s counsel declared in support of the
giving consent to any peace officer to search his person, and “Sgt. Maretti
searched the defendant after making contact with him without any reasonable
suspicion or probable cause to do so.â€
The trial court denied the Pitchess
motion with regard to Sergeant Maretti and, as discussed below, granted it with
regard to Officer Bojorquez.
c. Discussion
“Evidence
Code sections 1043 through 1045 codify Pitchess[,
directly conflicting interests: the peace officer’s just claim to
confidentiality, and the criminal defendant’s equally compelling interest in
all information pertinent to the defense.’
(City of San Jose v. Superior
Court (1993) 5 Cal.4th 47, 53 [19 Cal.Rptr.2d 73, 850 P.2d 621].) The legislation achieves this balance
primarily through a procedure of in camera review, set forth in section 1045,
subdivision (b), whereby the trial court can determine whether a police
officer’s personnel files contain any material relevant to the defense, with
only a minimal breach in the confidentiality of that file.†(People
v. Jackson (1996) 13 Cal.4th 1164, 1220.)
“To initiate discovery, the
defendant must file a motion supported by affidavits showing ‘good cause for
the discovery,’ first by demonstrating the materiality of the information to
the pending litigation, and second by ‘stating upon reasonable belief’ that the
police agency has the records or information at issue. ([Evid. Code,] § 1043, subd. (b)(3).) This two-part showing of good cause is a
‘relatively low threshold for discovery.’
[Citation.]†(
Cal.4th 1011, 1019 (Warrick);
179 [“A showing of good cause is measured by ‘relatively relaxed standards’
that serve to ‘insure the production’ for trial court review of ‘all
potentially relevant documents.’
[Citation.]â€].)
“To show good cause as required by
section 1043, defense counsel’s declaration in support of a
or defenses to the pending charges. . . . [¶]
Counsel’s affidavit 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.
[¶] . . . [¶] [A] plausible scenario of officer misconduct
is one that might or could have occurred.
Such a scenario is plausible because it presents an assertion of
specific police misconduct that is both internally consistent and supports the
defense proposed to the charges. A
defendant must also show how the information sought could lead to or be
evidence potentially admissible at trial.
Such a showing ‘put[s] the court on notice’ that the specified officer
misconduct ‘will likely be an issue at trial.’
[Citation.] Once that burden is
met, the defendant has shown materiality under section 1043.†(Warrick,
supra, 35 Cal.4th at pp. 1024-1026.)
Assuming,
without deciding, that the trial court erred in not granting defendant’s
Maretti,
prejudiced. “Finding the trial court
erred in failing to provide an in camera review does not end the analysis;
appellant must also demonstrate he was prejudiced from the denial of
discovery. [Citation omitted.]†(People
v. Hustead (1999) 74 Cal.App.4th 410, 418.)
The standard of prejudice is whether “there is a reasonable probability
that the discovery sought . . . would have led to admissible
evidence helpful to appellant in his defense.†(Ibid., citing People v. Gill (1997)
60 Cal.App.4th 743, 750-751.)
Officer
Bojorquez’s testimony was largely duplicative of Sergeant Maretti’s
testimony. Officer Bojorquez testified
that he asked defendant whether he had any weapons or anything illegal in his
possession, and asked defendant for permission to search him. Sergeant Maretti testified that he heard
Officer Bojorquez ask this of defendant.
Both Officer Bojorquez and Sergeant Maretti testified that Officer
Bojorquez found a fixed-blade knife on defendant’s person and handed it to
Sergeant Maretti. Both Officer Bojorquez
and Sergeant Maretti testified that the total length of the knife was
approximately five inches. And both
Officer Bojorquez and Sergeant Maretti testified that the knife had a two and
one-half inch fixed blade and was capable of being used as a stabbing
weapon. It, therefore, is not reasonably
probable that the discovery sought from Sergeant Maretti’s personnel file would
have led to admissible evidence helpful to defendant in his defense. (People
v. Hustead, supra, 74 Cal.App.4th
at p. 418.)
Camera Hearing
“When a trial court concludes a
defendant’s Pitchess motion shows
good cause for discovery of relevant evidence contained in a law enforcement
officer’s personnel files, the custodian of the records is obligated to bring
to the trial court all ‘potentially relevant’ documents to permit the trial
court to examine them for itself. ([
(1989)] 49 Cal.3d [74,] 84.) A law
enforcement officer’s personnel record will commonly contain many documents
that would, in the normal case, be irrelevant to a Pitchess motion, including those describing marital status and
identifying family members, employment applications, letters of recommendation,
promotion records, and health records.
(See Pen. Code, § 832.8.)
Documents clearly irrelevant to a defendant’s Pitchess request need not be presented to the trial court for in
camera review. But if the custodian has
any doubt whether a particular document is relevant, he or she should present
it to the trial court. Such practice is
consistent with the premise of Evidence Code sections 1043 and 1045 that the
locus of decisionmaking is to be the trial court, not the prosecution or the
custodian of records. The custodian
should be prepared to state in chambers and for the record what other documents
(or category of documents) not presented to the court were included in the complete
personnel record, and why those were deemed irrelevant or otherwise
nonresponsive to the defendant’s Pitchess
motion. A court reporter should be
present to document the custodian’s statements, as well as any questions the
trial court may wish to ask the custodian regarding the completeness of the
record. (See People v. Jackson, supra, 13 Cal.4th at p. 1221, fn. 10 [explaining
that this court ‘reviewed the sealed record of the in camera
proceeding’].)†(People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.)
“The trial court should then make a
record of what documents it examined before ruling on the Pitchess motion. Such a
record will permit future appellate review.
If the documents produced by the custodian are not voluminous, the court
can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list
of the documents it considered, or simply state for the record what documents
it examined. Without some record of the documents examined by the trial court,
a party’s ability to obtain appellate review of the trial court’s decision,
whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer’s privacy,
the examination of documents and questioning of the custodian should be done in
camera in accordance with the requirements of Evidence Code section 915, and
the transcript of the in camera hearing and all copies of the documents should
be sealed. (Fn. omitted.) (See People
v. Samayoa[, supra,] 15 Cal.4th
[at p.] 825 [] [after ruling on the Pitchess
motion, ‘[t]he magistrate ordered that all remaining materials be copied and
sealed’].)†(People v. Mooc, supra, 26
Cal.4th at pp. 1229-1230.)
The trial court granted defendant’s
Pitchess motion with regard to
Officer Bojorquez “for claims of
false police reports, fabrication of probable cause, [and] false claims of
consent to search,†and held an in camera hearing to review his personnel
file. After conducting the in camera
hearing, the trial court stated on the record that, “There are no records of
the nature sought to be disclosed . . . .â€
The sealed court reporter’s
transcript of the trial court’s in camera review was included in the record on
appeal. However, copies of the documents
reviewed by the trial court, but not disclosed to defendant, were not
included. After reviewing that
transcript, we requested that the record be augmented to include copies of the
materials reviewed by the trial court that were not disclosed to defendant. We appointed the trial court to act as referee
to conduct record correction proceedings.
Pursuant to our appointment of the
trial court to act as referee, the trial court conducted a further in camera
proceeding. The sealed reporter’s
transcript of that proceeding was lodged with this court, along with copies of
the documents reviewed by the trial court at the record correction proceeding
and the trial court’s minute order of the proceedings.
We have reviewed the transcript of
the record correction proceeding and all the documents filed under seal with
this court that were reviewed by the trial court at the record correction
proceeding. Based on that review, as
well as our prior review of the original in camera proceeding, we conclude that
the trial court did not abuse its discretion by withholding any personnel
records that it reviewed.
Belt Restraint and Other Security Measures
Defendant
contends that the trial court erred by requiring that he be restrained during
trial, and ordering additional security measures, in violation of his rights of
a fair trial and due process under the Fifth and Fourteenth Amendments to the
United States Constitution. We disagree.
Law
“‘[A]
defendant cannot be subjected to physical restraints of any kind in the
courtroom while in the jury’s presence, unless there is a showing of a manifest
need for such restraints.’
[Citation.]†(
1216; see People v. Virgil (2011) 51
Cal.4th 1210, 1270.) “Similarly, the
federal ‘Constitution forbids the use of visible shackles . . .
unless that use is “justified by an essential state interestâ€â€”such as the
interest in courtroom security—specific to the defendant on trial.’ [Citation.] . . . [¶] ‘In
deciding whether restraints are justified, the trial court may “take into
account the factors that courts have traditionally relied on in gauging
potential security problems and the risk of escape at trial.†[Citation.]
These factors include evidence establishing that a defendant poses a
safety risk, a flight risk, or is likely to disrupt the proceedings or
otherwise engage in nonconforming behavior.’
[Citation.] Although the court
need not hold a formal hearing before imposing restraints, ‘the record must
show the court based its determination on facts, not rumor and innuendo.’ [Citation.]â€
(People v. Lomax (2010) 49
Cal.4th 530, 559.)
“[E]ven when special court security
measures are warranted, a court should impose the least restrictive measure
that will satisfy the court’s legitimate security concerns.†(People
v. Mar, supra, 28 Cal.4th at p.
1206.) “[I]n any case where physical
restraints are used those restraints should be as unobtrusive as possible,
although as effective as necessary under the circumstances.†(People
v. Duran (1976) 16 Cal.3d 282, 291, fn. omitted.) The Supreme Court has “consistently held that
courtroom shackling, even if error, was harmless if there is no evidence that
the jury saw the restraints, or that the shackles impaired or prejudiced the
defendant’s right to testify or participate in his defense.†(People
v. Anderson (2001) 25 Cal.4th 543, 596; see People v. Combs (2004) 34 Cal.4th 821, 838-839.)
2. Background Facts
At the commencement of the trial,
outside the presence of the jury, the trial court stated that defendant “was escorted
out into the courtroom wearing civilian clothing. He has been restrained in, they call, a
stealth belt, a device which is unseen to the public; however, it is an item
that is underneath his suit coat, which basically locks him into the
defendant’s chair. [¶] The court had took this extraordinary
measure—I should say, once again, this is unseen to the public. The court took this extraordinary measure
asking the bailiffs to put him in a stealth belt because he has a pretty
extensive history of violence and unruly and disruptive behavior on prior
occasions that the defendant has been in custody. [¶]
The court estimates that this is the least-restrictive alternative to
having the defendant properly restrained and to maintain courtroom
security. The court has had numerous
reports that on prior custody situations the defendant on those occasions—in
one such occasion, March of ‘07—apparently slipped his chain, his chain
security—he slipped his T.S.T. chain and used it as a weapon against one of the
fellow inmates causing a laceration to the inmate’s forehead. That was in March of ’07. [¶] On
also in March of ’07 the defendant allegedly—or, I should say, the defendant
was reported to have, I think the term was, gassed a deputy by using some item
from outside of the cell toilet and throwing it on one of the sheriff’s
deputies that was providing security at that location. [¶] On
a prior—the location in ’05 the defendant had been challenging the various
sheriff’s deputies to fight and had an
open matter, apparently been exposing himself and masturbating. [¶] On
another occasion in ’05 the defendant apparently drew down his pants and
exposed his penis and told the detective or the deputy that he was going to
sodomize him. [¶] And in another occasion in October of ’05,
the defendant’s cell was searched, and it was a loose razor that was
recovered. [¶] And on another such occasion in that same
remand period in ’05 the defendant had a shank recovered from his person, that
being a stabbing instrument that was crudely fashioned out of some eating
utensils and so forth. [¶] So based on this long history of assaultive,
violent conduct and unruly conduct, the court finds a manifest need to have him
placed in the stealth belt. I want to
say, for the record, this is an item that is unseen to the jury. This court’s going to take this measure. [¶] I
should say also, there is a deputy who is seated in the regular location that
the deputy’s always seated and one additional deputy that’s seated in the area
about 10 to 12 feet away from the defendant, is not in immediate contact with
the defendant, and is in between the defendant and the bench, once again, in
this court’s estimation, not providing an extraordinary display of any kind of
extraordinary restraints. [¶] The court has also directed that [defendant]
not be provided with any writing utensils and instruments. If he wants to confer with counsel during the
course of the proceedings, he’s invited to let [his counsel] know, who can then
let us know about what any issues are so [defendant] has a chance to confer
with [his counsel–the trial court is] not preventing that activity.â€
Defendant’s counsel objected to the
trial court’s ruling on the grounds that it was not based on defendant’s
current custody behavior, and requested that the trial court consider allowing
defendant to have some sort of writing instrument, including a dull pencil or a
felt-tip pen, during the trial. The
trial court responded that the incidents referred to “may have been a few years
past [but they occurred] while [defendant] was in the custody situation. [¶]
This court is finding that [it] is not appropriate to provide
[defendant] with any instruments that could be used as a stabbing instrument
whatsoever, which includes a pencil.
[¶] I want to say, [defendant’s
counsel], I will be happy to accommodate if [defendant] has any issues or
comments, he wants to confer with you, he may absolutely do so. We’ll stop the proceedings . . . at
an appropriate time . . . so [defendant] can confer with
[defendant’s counsel], and I don’t want to interfere with [the] attorney-client
relationship.â€
Before defendant testified, the
trial court stated outside the presence of the jury, without objection, that
when defendant has completed his testimony, “I’ll have [the jury] step outside
into the jury room and take [defendant] down.
I don’t want them to see [defendant] restrained, Okay.†Defendant’s counsel requested that the court
instruct the jury that it is the policy of the trial court that a deputy be
seated 15 feet from where a defendant is seated in the witness stand, and in
front of the jury, whenever any defendant testifies. Defendant’s counsel agreed with the trial
court response that, “I can say as a matter of court policy a deputy is situated
about 15 feet away where the defendant is sitting in the witness stand, they’re
not to take anything of this one way or another, and that this is simply court
policy at this juncture.â€
The trial court instructed the jury,
“Before we get started, ladies and gentlemen, by way of clarification,
[defendant] is obviously in the witness stand.
There is a sheriff about 15 to 20 feet away from him. I don’t want you to take any reference to
that at all. That is a court policy in
this case. I don’t want you to be overly
concerned that you should be—it should affect your decision in any
way. [¶] Everybody okay with that? Everyone’s head’s nodding in the
affirmative.â€
At the conclusion of defendant’s
testimony, the trial court instructed the jury that “I’d like you to step into
the jury room real quick.†Outside the
presence of the jury, the trial court said, “Okay. You want to have [defendant] step back to his
seat.â€
Defendant
contends that the trial court erred by requiring that he be restrained during
trial, and ordering additional security measures, because the trial court did
not do so based on a manifest need. The
trial court, however, based the imposition of the security measures on substantial
evidence of such a need. As the trial
court described it, reciting from “numerous reports†that during prior custody
situations, defendant had a “long history of assaultive, violent conduct and
unruly conduct,†and expressly found “a manifest need to have [defendant]
placed in the stealth belt.â€
Defendant
contends that the trial court also erred because the measures chosen were not
the least obtrusive that would still be effective. The trial court, however, found that the
“stealth belt†and the other security measures were the least obtrusive that
would still be effective, stating, “The court estimates that [the “stealth
beltâ€] is the least-restrictive alternative to having the defendant properly
restrained and to maintain courtroom security.
[¶] . . . . [¶] This court is
finding that this [it] is not appropriate to provide [defendant] with any
instruments that could be used as a stabbing instrument whatsoever, which
includes a pencil.†The trial court did
not abuse its discretion in finding that the security measures imposed were the
least obtrusive that would still be effective because the record relied upon by
the trial court provided that on one occasion while in custody defendant
slipped his security chain and used it as weapon, and on another occasion
defendant fashioned a stabbing instrument out of eating utensils.
As noted
above, “courtroom shackling, even if error, was harmless if there is no
evidence that the jury saw the restraints, or that the shackles impaired or
prejudiced the defendant’s right to testify or participate in his
defense.†(People v. Anderson, supra,
25 Cal.4th at p. 596; see People v. Combs,
supra, 34 Cal.4th at pp.
838-839.) Defendant does not argue that
the “stealth belt†or any of the other security measures impaired or prejudiced
his right to testify or participate in his defense. And defendant admits, “[i]t is not clear from
the record whether or not the jury was aware of this restraint [i.e., the
“stealth beltâ€].â€
Defendant contends that because he
did not have any writing utensils, there was an additional sheriff posted next
to him in the courtroom, and he did not walk to and from the witness stand in
the presence of the jury like the other witnesses, it is reasonable to conclude
that the jury believed that he had been placed in a physical restraint during
the trial. There is no evidence that the
jury noticed these circumstances, but even if the jury did notice them, it is
not reasonable to conclude that therefore the jury believed that defendant had
been placed in a physical restraint. In
addition, the trial court specifically instructed the jury not to form any
conclusions based on the fact that defendant was already on the stand and there
was a sheriff located about 15 to 20 feet away from him. We presume the jury followed the trial
court’s instructions. (
719; People v. Bennett (2009) 45
Cal.4th 577, 596; People v. Johnson
(2009), supra, 180 Cal.App.4th at p.
710.)
Defendant
contends that the trial court erred because it may not simply rely upon “the
judgment of law enforcement or court security officers or the unsubstantiated
comments of others.†The trial court
relied upon what it described as “numerous reports on prior custody
situations.†Defendant has not shown the
source of these reports, including whether they were comprised of the judgments
of law enforcement or court security officers, or unsubstantiated comments of
others.
Misconduct
Defendant
contends that the prosecutor engaged in prejudicial misconduct by presenting false
and misleading information and argument in violation of his right to due
process and a fair trial. Defendant
forfeited this contention.
“To
preserve a claim of prosecutorial misconduct for appeal, a criminal defendant
must make a timely and specific objection and ask the trial court to admonish
the jury to disregard the impropriety.
[Citations.]†(
1201.)
Although
defense counsel objected at trial to only one portion of the prosecutor’s
argument to the jury that he now contends constitutes prosecutorial misconduct,
he did not object to most of the alleged instances of prosecutorial misconduct,
nor did he ask for the trial court to admonish the jury to disregard the
purported impropriety as to any of the alleged misconduct. Defendant asserts that objections would have
been futile, the misconduct was egregious, and that we should reach the issu
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