P. v. Diaz

Filed 1/30/07 P. v. Diaz CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Patrick T. Meyers, Judge. Affirmed.

Roderick W. Leonard, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Tita Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Pedro J. Diaz (defendant) of one count of resisting an executive officer (Pen. Code, 69).[1]We hold that (1) the trial court did not abuse its discretion by refusing to grant a continuance to permit defendant to conduct Pitchess[2]discovery, and (2) the trial court did not err in admitting evidence relating to a set of car keys found in defendants possession. We therefore affirm defendants conviction.

BACKGROUND[3]

A.Factual Background

On August 14, 2005, at approximately 10:30 p.m., Officer Albert Carrillo of the South Gate Police Department was on patrol near the intersection of Atlantic Avenue and Firestone Boulevard in the City of South Gate. He was wearing a gang uniform, consisting of a polo shirt, jeans and a standard police gun belt. His badge was pinned to his belt. On the left breast of his polo shirt, he wore a badge-shaped patch that said, POLICE. Though his patrol car was unmarked, it had numerous antennae on it, a cage visible from outside the car, spotlights, and a blue-and-red light on the dashboard.

As Officer Carrillo neared the Gateway Inn on Atlantic Avenue, he was flagged down by the motel clerk. The clerk told Officer Carrillo that a suspicious-looking person had been walking between the cars in the motel parking area a few minutes earlier. The clerk described the individual and told Officer Carrillo that the individual was walking northbound on Firestone Boulevard.

Officer Carrillo headed in the direction indicated by the motel clerk. Within a few minutes, he saw defendant, walking with another man toward a gas station at the corner of Firestone and Atlantic. Defendant matched the description given by the motel clerk. Defendant and his companion went into the convenience store at the gas station. Officer Carrillo pulled his car up to the entrance of the store, and waited for defendant to come out. The area was well lit.

When defendant came out of the store, Officer Carrillo got out of his car and approached defendant. Before Officer Carrillo said anything, defendant said, Who the hell are you? Officer Carrillo responded by asking defendant if he was on probation or parole. Defendant said that he was on parole. Officer Carrillo told defendant to put his hands on top of the patrol car. Defendant did not. Officer Carrillo grabbed defendants left elbow and began to push him toward the patrol car. Defendant cursed at Officer Carrillo and tried to turn toward him. Officer Carrillo attempted to put defendants hands behind defendants back, but defendant stiffened his arms.

Concerned for his safety, Officer Carrillo took the radio from his belt to call for help. Defendant swung his arm in an attempt to break Officer Carrillos grip on his elbow, and in doing so knocked Officer Carrillos radio out of his hand. Officer Carrillo immediately attempted to put a carotid hold on defendant. As he tried to do so, defendant pushed his weight backwards, knocking Officer Carrillo off balance. The two of them fell to the ground, with Officer Carrillo gripping defendant in a reverse bear hug.

Defendant continued to struggle and threatened that Officer Carrillo was going to get it. Officer Carrillo was able to get one hand free to reach his radio, and he called for assistance. He kept defendant pinned to the ground until two other officers arrived and took defendant into custody.

When defendant was arrested, he had a black bag with him. The bag was searched by Officer Rodriguez, one of the two officers who had responded to Officer Carrillos call for assistance. In defendants bag, Officer Rodriguez found a ring containing seven keys for various makes of automobile. Defendant explained that they were just extra keys [he had] collected throughout the years[.]

B. Procedural Background

The trial court held a preliminary hearing on August 30, 2005, at which Officer Carrillo testified. Defendant was bound over for trial. On September 13, defendant was charged in a one-count information with resisting an executive officer in violation of section 69.[4] At defendants arraignment, the trial court set trial for November 8, 2005. The November 8 trial date was confirmed on defense motion at a pretrial conference on October 20.[5]

On November 4, 2005 four days before the case was scheduled to go to trial defendant filed a motion for Pitchess discovery seeking, among other things, the disciplinary records of and citizen complaints regarding Officer Carrillo. Although a Declaration of Service by Mail on the South Gate Police Department is attached to the motion, the declaration is neither dated nor executed. When the case was called on November 8, defendant informed the trial court that he had made a Pitchess motion and requested a continuance. The People did not object. Defendant waived his right to a speedy trial, and the trial court continued the matter for a hearing on the Pitchess motion and to commence trial on December 2 on a 0 of 10 basis.

No one from the South Gate Police Department responded to defendants Pitchess motion or appeared for the hearing on December 2. The trial court again continued the matter until December 7, day 5 of 10.

Again on December 7, no one from the South Gate Police Department appeared for the Pitchess hearing. Defense counsel represented to the trial court that he had contacted the South Gate Police Department, which denied receiving a copy of the motion. Defense counsel requested a further continuance to permit him to effect personal service of the motion on the South Gate Police Department, but defendant refused to waive his right to a speedy trial. The trial court explained to defendant that his refusal to waive his speedy-trial right meant we would have to proceed to trial [in five days] without the Pitchess motion. Defendant confirmed that he did not want to waive his speedy-trial right, and that he understood the consequences of his decision. The trial court concluded that it could not grant defense counsels request for a continuance over his own clients objection. Accordingly, the trial court ordered the Pitchess motion off calendar and set the case for trial on December 12, 10 of 10.

On December 12, both parties appeared in the calendar department at the Norwalk courthouse and announced that they were ready for trial. The case was transferred to a trial department.[6] When the matter was called in the trial department, defense counsel explained to the trial judge that defendant had changed his mind since December 7, and was willing to waive his speedy-trial right so that defense counsel could obtain the Pitchess discovery. Defense counsel orally requested a three or four-week continuance to permit him to effect personal service of the Pitchess motion on the South Gate Police Department, and to obtain the discovery materials. The People objected on the ground that they were ready to proceed to trial. The trial court denied the motion, noting that defendant should have sought a continuance on December 7 or in the calendar court, and had made no evidentiary showing . . . at all to justify a continuance.

The jury convicted defendant on December 15. On February 14, 2006, the trial court tried defendants priors, and found true the allegation of one prior strike conviction ( 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)), and two prior prison terms ( 667.5, subd. (b)). The trial court sentenced defendant to five years in state prison, consisting of the middle term of two years, doubled to four years, plus a one-year prior-prison-term enhancement. The trial court struck the second prior-prison-term enhancement, pursuant to section 1385. Defendant timely appealed.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Denying Defendants Request for a Continuance to Conduct Pitchess Discovery

Defendant argues that the trial court abused its discretion when it denied his oral request for a continuance after the case was transferred to the trial department on December 12. We disagree.

In criminal cases, continuances are granted only upon a showing of good cause. (Pen. Code, 1050, subd. (e); People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The trial court has broad discretion to determine whether good cause exists. (People v. Roldan (2005) 35 Cal.4th 646, 670.) Such discretion, however, may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) To effectuate the constitutional rights to counsel and to due process of law, an accused must . . . have a reasonable opportunity to prepare a defense and respond to the charges. (People v. Bishop (1996) 44 Cal.App.4th 220, 231.) Nevertheless, [d]efendant bears the burden of establishing that denial of a continuance request was an abuse of discretion. (People v. Panah (2005) 35 Cal.4th 395, 423.) A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence. (People v. Roldan, supra, 35 Cal.4th at 670, quoting People v. Jenkins, supra, 22 Cal.4th at p. 1037.)

Defendant and his attorney knew from the outset of the case that Officer Carrillos testimony at trial would be significant. Officer Carrillo was the sole witness at defendants preliminary hearing on August 30, and Officer Carrillo was the only person other than defendant mentioned by name in the information.

Defendant, however, did not diligently pursue Pitchess discovery relating to Officer Carrillo. The November 8 trial date was set nearly two months in advance, on September 13. Defense counsel knew or should have known that a party seeking Pitchess discovery must file a written motion and, if service is effected by mail, notify the government agency in custody of the records 21 days prior to the hearing on the motion. (Evid. Code, 1043, subd. (a); Code Civ. Proc., 1005, subds. (a)(6), (b).) Yet, defendant waited until November 4four days before trialto file his Pitchess motion. Further, the record does not establish that the motion was served properly on the South Gate Police Department. The only proof of service in the record is neither signed nor dated, and the South Gate Police Department apparently denied receiving defendants motion.

Further still, knowing that he could not obtain his Pitchess discovery prior to the November 8 trial date, defendant never submitted a written motion for a continuance. Instead, he appeared the morning the trial was scheduled to commence, and made an oral request for a continuance that was unsupported by any competent evidence to establish good cause. Defendant did not explain to the trial court why he had delayed in filing the motion, whether he had grounds to expect that his motion would yield evidence to impeach Officer Carrillo, or how long it would take him to evaluate and further investigate any Pitchess materials that he might obtain. Notwithstanding defendants failure to establish good cause on November 8, the trial court granted a continuance to December 2.

No one from the South Gate Police Department appeared for the Pitchess hearing that morning, however. The best explanation defense counsel could offer was that he had not seen or heard from anybody yet. Defense counsel did not establish that, in the absence of any response from the South Gate Police Department, he had been diligent either in serving the Pitchess motion on the department or in verifying that the department had received it. Nevertheless, the trial court granted a second continuance to December 7.

By December 7, defense counsel had ascertained that the South Gate Police Department denied receiving the motion. Yet, defendant did not seek an order from the trial court compelling the department to respond to the motion, or for any other relief. Instead, defense counsel sought additional time to re-calendar the motion. He did not explain why he chose that course of action or why, if he intended to re-calendar the motion, he had not already done so. Although the trial court appeared willing to grant defense counsel the time he sought, defendant refused to waive his speedy-trial right. Even after the trial court advised defendant of the consequences of his decision, defendant elected to proceed to trial without the Pitchess material. The trial court therefore ordered the Pitchess motion off calendar.

On the morning of December 12, defendant appeared in the calendar department and reported that he was ready to proceed to trial. Defense counsel did not raise the issue of the Pitchess discovery or his desire for a continuance in the calendar department. It was not until the case was called in the trial department that defense counsel made an oral request for a continuance. Defense counsel did not explain why he had reported that the case was ready for trial earlier that morning, or why, if he wished to proceed with Pitchess discovery, he had not re-calendared his Pitchess motion or sought some other relief before the case was called for trial. Based on all of these circumstances, the trial court did not abuse its discretion when it concluded that defendant had made no evidentiary showing . . . at all to support a finding of good cause for the continuance.

Defendant relies on People v. Fontana (1982) 139 Cal.App.3d 326, and Hughes v. Superior Court (1980) 106 Cal.App.3d 1. Neither case helps defendants cause. In People v. Fontana, supra, 139 Cal.App.3d at pp. 332-33, defense counsel supported his request for a continuance by explaining in considerable detail . . . not only what had been taking up his working hours (a trial of a difficult case and in the week previous a homicide trial) but also what he believed he had to accomplish before he could proceed [with defendants probation revocation hearing] in a competent manner (e.g., reading the 150-page packet of materials including the 70-page preliminary hearing transcript, discussion with his client, reading his clients lengthy statement to his trial counsel, comparing the police report to the testimony given at the preliminary hearing and reviewing suggestions made by his client.) Defendant in this case made no such showing. The record does not establish that defendant diligently pursued Pitchess discovery, and his Pitchess motion was ultimately taken off calendar because defendant himself refused to waive his speedy-trial right.

In People v. Hughes, supra, 106 Cal.App.3d at p. 3, an assistant public defender was assigned two complex cases for trial on the same day, denominated the Body case and the Holloway case. Relying on a statement from the master calendar department that the Holloway case would be tried first, the public defender diligently prepared both cases, but gave the Holloway case precedence. On the morning of the trial, the trial court instead proceeded to try the Body case because the prosecution had transported an incapacitated witness from Los Angeles to San Francisco to testify. The public defender moved for a continuance. His motion was denied. The public defender thereafter refused to proceed with the trial on the ground that he was unprepared on a serious psychiatric issue in the case. The trial court held the public defender in contempt. (Ibid.) The court of appeal issued a writ of prohibition, holding that the public defender had demonstrated sufficient reason for refusing to obey the trial courts order to proceed with the trial. (Id. at p. 5.) These facts bear no resemblance to defendants case. We therefore conclude that the trial court did not abuse its discretion in denying defendants oral request for a continuance to seek Pitchess discovery.

B. The Trial Court Did Not Abuse Its Discretion in Denying Defendants Motion to Exclude the Ring of Automobile Keys

Defendant contends that the trial court erred in denying his motion under Evidence Code section 352[7]to exclude evidence relating to the ring of seven automobile keys discovered in the black bag defendant was carrying when he was arrested. Specifically, defendant contends that such evidence was irrelevant because the keys were discovered after defendants criminal conduct (i.e., resisting Officer Carrillo) was completed, and that such evidence was unduly prejudicial because it imputed to appellant the intent to commit additional crimes[.]

We review the trial courts decision to admit or exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 824.) All relevant evidence is admissible unless specifically excluded by statute or by the federal or California Constitution. (Evid. Code, 351.) Evidence Code section 210 states that relevant evidence is evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (People v. Scheid (1997) 16 Cal.4th 1, 13[].) Relevant evidence may be excluded pursuant to Evidence Code section 352 if the trial court in its discretion concludes its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Minifie (1996) 13 Cal.4th 1055, 1069-1070[].) (People v. Basuta (2001) 94 Cal.App.4th 370, 386.)

In applying section 352, prejudicial is not synonymous with damaging. (People v. Brogna (1988) 202 Cal.App.3d 700, 710.) Rather, evidence creates a substantial danger of undue prejudice under Evidence Code section 352 if, broadly stated, it imposes an intolerable risk to the fairness of the proceedings or the reliability of the outcome[.] (People v. Jablonski, supra, 37 Cal.4th at p. 824, quoting People v. Waidla (2000) 22 Cal.4th 690, 724.) In other words, such evidence must tend[] to evoke an emotional bias against the defendant (People v. Crew (2003) 31 Cal.4th 822, 840), such that it is unfair and tend[s] to cause the trier of fact to decide the case on an improper basis. (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 285.)

Applying these principles, we conclude that the evidence regarding the keys was relevant. The prosecutor did not proffer any evidence regarding the keys in her case in chief. The prosecutor first brought the keys to the jurys attention when cross-examining defendant, who had testified on direct examination that he had cooperated with Officer Carrillo until the officer, essentially without provocation, twisted defendants arm behind his back, grabbed defendant by the neck and threw defendant to the ground. Defendant also testified that it was Officer Carrillo, rather than Officer Rodriguez, who searched defendants bag. Evidence regarding the keys and the manner of their discovery, when combined with defendants conduct immediately prior to the confrontation, was relevant because it tended to prove that defendant had a motive to resist Officer Carrillo, that defendants version of the events was not credible, and that Officer Carrillo had acted reasonably in detaining defendant. (See People v. Marks (2003) 31 Cal.4th 197, 229 [where defendant explained his possession of [a] gun by asserting that he was transporting the weapon in exchange for payment, evidence of defendants parole status was relevant to cast doubt upon that explanation by informing the jury that defendants status as a parolee meant that his mere possession of the weapon could prompt his return to prison].)

We further conclude that evidence relating to the keys was not unduly prejudicial. The keys themselves were not inherently inflammatory. The prosecutor presented no evidence that the keys could be used for an improper purpose, nor were the keys offered to prove defendants criminal disposition. (Cf. Evid. Code, 1101, subd. (b).) Even if the jury might have inferred from defendants possession of the keys that he was engaged in criminal activity, that alone does not render such evidence unduly prejudicial: [E]vidence to prove a relevant or material fact is not deemed inadmissible merely because it discloses the commission of another crime [citations]. And, because a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence. (People v. Lopez (1969) 1 Cal.App.3d 78, 85, citing People v. Sykes (1955) 44 Cal.2d 166; see, e.g., People v. Roldan, supra, 35 Cal.4th at pp. 705-07 [evidence of prior crimes admissible when relevant to establish defendants identity, intent and motive]; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1549-1551 [evidence of gang affiliation admissible to show motive].)

Although the evidence relating to the keys was thus probative, its potential for undue prejudice was slight. Officer Carrillo testified that the motel clerk told him about a suspicious-looking person walking in between the cars in the motel parking area; that defendant matched the description given by the motel clerk; and that Officer Carrillo had come upon defendant near the motel, walking in the direction indicated by the motel clerk. As a result, the evidence implied to the jury that defendant was the suspicious-looking person from the motel parking area even before the keys were introduced. In addition, defendant testified in this case. In both his testimony and his argument to the jury, defendant proffered explanations of what the keys were and why he had them in his bag. Accordingly, any additional prejudice to defendant from evidence relating specifically to the keys was minimal.

Defendants reliance on People v. Harris (1998) 60 Cal.App.4th 727, is unavailing. In that case, a male mental health nurse was accused of the non-violent, sexual molestation of two patients under his care. (Id. at pp. 730-733.) At trial, the trial court admitted evidence that 23 years earlier, while he was the assistant manager of an apartment building, the defendant had let himself into a tenants apartment and committed a brutal sexual assault that left the victim unconscious and bleeding from her mouth and vagina. Defendant was discovered hiding nearby with blood on his shirt, the inside of his clothing and his penis. He was subsequently convicted of first degree burglary with the infliction of great bodily injury. (Id. at pp. 734-735.)

The court of appeal reversed, holding that the trial court had abused its discretion under Evidence Code section 352 in admitting the evidence of the prior crime. First, the court concluded, the evidence of the prior crime was inflammatory in the extreme. (People v. Harris, supra, 60 Cal.App.4th at 738.) The worst defendant had done in the case on trial was to lick[] and fondle[] his victims. Although such conduct was criminal, it was significantly different than the violent and perverse attack on a stranger that had been described in an incomplete and distorted form to the jury. (Ibid.) Further, the fact that defendant had been convicted of burglary, rather than rape, could well confuse the jury, who might conclude that defendant had escaped appropriate punishment for his acts. (Ibid.) In addition, the prior crime occurred 23 years before, and was thus remote in time. (Id. at p. 739.) Finally, the evidence was not probative of defendants disposition to commit the crimes charged: The prior conduct evidence is . . . totally dissimilar to the current allegations . . . . [W]hile heavy with undue prejudice and dangerous in the hands of a jury [such evidence] was not particularly probative of the defendants predisposition to commit these breach of trust sex crimes. (Id. at pp. 740-741.)

Simply to describe People v. Harris, supra, 60 Cal.App.4th 727, is to demonstrate that it is totally dissimilar to the present case. We conclude that the trial court did not abuse its discretion in admitting evidence relating to the keys.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

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

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

[3]To the extent the trial evidence is in conflict, we view the record in the light most favorable to the jurys verdict. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)

[4]Section 69 provides: Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.

[5]The Hon. Michael A. Cowell presided over pretrial proceedings on October 20, November 8, and December 2, 7 and 12.

[6]The Hon. Patrick T. Meyers presided over trial proceedings.

[7]Evidence Code section 352 provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.