People v. Lemmons CA4/2 ( 2014 )

Filed 4/10/14 P. v. Lemmons CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057076
v. (Super.Ct.No. RIF140496)
KYLE EVERETT LEMMONS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. W. Charles Morgan,
Judge. (Retired judge of the Riverside Super. Ct., assigned by the Chief Justice pursuant
to art. VI, § 6, of the Cal. Const.) Affirmed.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and
Respondent.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, and Meredith S.
White, Deputy Attorneys General, for Plaintiff and Respondent.
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I
INTRODUCTION1
Defendant Kyle Everett Lemmons tried unsuccessfully to cash a stolen check at a
bank. On a street outside the bank, he engaged in a gun battle with a police officer.
A jury convicted him of one count of attempted murder of a peace officer, which
was not willful, deliberate or premeditated. (§§ 187, subd. (a), and 664, subd. (e).) The
jury further found that defendant personally and intentionally discharged a firearm in the
commission of the attempted murder (§ 12022.53, subd. (c), and 1192.7, subd. (c)(8)).
The jury also convicted defendant of one count of burglary (§ 459), and one count of
receiving stolen property (§ 496, subd. (a)). The court sentenced defendant to an
indeterminate term of seven years to life plus 20 years on count 1 and concurrent
sentences on the other two counts.
On appeal, defendant argues the court committed Pitchess2 error and failed to give
a unanimity instruction. (CALCRIM No. 3500.) We hold there was no prejudicial error
and affirm the judgment.
1 All statutory references are to the Penal Code unless stated otherwise.
2 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
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II
STATEMENT OF THE FACTS
A. Prosecution Evidence
Defendant admitted counts 2 and 3 (burglary and stolen property) based on
defendant’s unsuccessful attempt to cash a check for $18,295.64 that he had stolen from
his workplace.
About 9:00 a.m. on December 6, 2007, on the street outside Union Bank in
downtown Riverside, a Riverside police officer, Miguel Rivera, responded to a 911 call
about an African-American man armed with a gun. When Officer Rivera exited his
squad car, defendant took off running. Defendant reached into his pants, pulled out a
gun, aimed and fired at Rivera. Rivera ducked behind his vehicle and called for help.
Defendant continued running and fired a second shot. Rivera continued his pursuit,
pulled out his handgun, and returned fire. Defendant continued running while aiming and
shooting at Rivera.
A woman was in her car with the driver’s door open when she heard gun shots.
She grabbed her car keys, and fled back to her workplace, leaving the car door standing
open. Defendant intended to steal the car but there were no keys.
Defendant crouched behind the open car door and fired additional shots at Rivera
who was coming toward defendant. As the officer fired one last shot, defendant ran
through a parking structure. Eventually, defendant was arrested and taken into custody.
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The gun battle lasted about four minutes. Defendant had fired multiple bullets.
His gun was empty when it was recovered.
Several witnesses confirmed that Rivera had announced he was a police officer
before defendant initiated the gun fight. While trying to escape, defendant continued to
aim and fire at the officer.
B. Defense Evidence
Defendant’s pastor, neighbor, and two friends testified as character witnesses that
defendant was peaceful and nonviolent.
In defendant’s trial testimony, he admitted trying to cash the stolen check. When
he left the bank, he ran from the officer because he did not want to get caught. He
admitted firing first at Rivera but he claimed he was not aiming at him or intending to kill
him. Instead, he fired “upward” to scare the officer. Defendant admitted a gun could be
deadly and he had fired in the direction of the officer. Earlier defendant had admitted to
detectives that he was aiming at the officer.
III
PITCHESS MOTION
Defendant filed two Pitchess motions which the court deemed insufficient and
denied. On appeal, defendant argues the trial court abused its discretion in denying the
motion.
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A. Background
On December 19, 2007, about two weeks after the gun battle, Rivera became
involved in an off-duty altercation at a night club. After Rivera lied during the internal
affairs investigation, he was terminated from the police department. In August 2008,
Rivera was convicted of disturbing the peace for fighting in public. (§ 415, subd. (a).)
Based on the nightclub incident, defense counsel filed a Pitchess motion for the
discovery of Rivera’s personnel file from the Riverside Police Department. The motion
sought to obtain any information regarding complaints made against Rivera for “acts . . .
constituting racial prejudice, dishonesty, false arrest, the fabrication of charges,” or, “any
act involving morally lax character,” or finally, any “aggressive behavior, acts of
violence and/or attempted violence, acts of excessive force and/or attempted excessive
force.” The supporting declaration asserted that defense counsel believed Rivera may
have fabricated the charges against defendant. The declaration also asserted that Rivera
had used excessive force in arresting defendant.
The Riverside City Attorney opposed the motion, arguing that defendant had
failed to establish good cause warranting an in camera review of Rivera’s personnel file.
On March 23, 2012, the court denied the motion as facially insufficient.
Defense counsel filed a second Pitchess motion, similar to the first. The
supporting declaration stated that the discovery was necessary to locate witnesses and
investigate Rivera’s character for dishonesty, aggressiveness, and use of excessive force.
The new declaration added the following allegation, “Officer Rivera was the one who
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first pulled out the gun and shot at the Defendant. . . . As a result of excessive force used
by Officer Rivera the Defendant used force to protect himself.” The declaration again
asserted that Rivera had fabricated the charges against defendant.
The court denied the second Pitchess motion, explaining, “I believe it’s deficient
on its face, once again. Though the police report’s attached and there’s a different
declaration, there’s no scenario laid out here that would merit going in camera and
examining the peace officer’s personnel file.”
B. Discussion
The trial court determines whether there is good cause for the disclosure of the
personnel record of a police officer. (Evid. Code, §§ 1043, 1045.) Good cause for
discovery exists when the defendant demonstrates (1) materiality of the requested
material to the pending action, and (2) a reasonable belief the agency has the type of
information sought. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016-1019.)
Absent a showing of good cause, an officer’s personnel records are not relevant. (People
v. Collins (2004) 115 Cal.App.4th 137, 151.) The trial court’s broad discretion will not
be disturbed absent an abuse of that discretion. (Alford v. Superior Court (2003) 29
Cal.4th 1033, 1039; People v. Mooc (2001) 26 Cal.4th 1216, 1228.) Furthermore,
reversal is not required unless the defendant can show the error was prejudicial. (People
v. Samuels (2005) 36 Cal.4th 96, 110.)
In Warrick v. Superior Court, supra, 35 Cal.4th 1011, the California Supreme
Court clarified that, although the standard of good cause has a “‘relatively low
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threshold,’” the materiality inquiry nonetheless requires “not only a logical link between
the defense proposed and the pending charge, but also to articulate how the discovery
being sought would support such a defense or how it would impeach the officer’s version
of events.” (Id. at pp. 1019, 1021.) A plausible scenario of officer misconduct is one that
might have occurred because it describes specific police misconduct that is both
internally consistent and supports the proposed defense. (Id. at pp. 1025-1026.) To show
good cause, defendant needed to present a factual scenario which was 1) sufficiently
specific, 2) plausible, 3) internally consistent, and 4) supportive of the defense offered
against the charges. The affidavit showing good cause may be on information and belief
and does not have to be based on personal knowledge but the information must be
requested with “sufficient specificity to preclude the possibility of a defendant’s simply
casting about for any helpful information.” (People v. Mooc, supra, 26 Cal.4th at p.
1226.)
Defendant’s supporting declaration offered two factual scenarios: 1) that
excessive force was used in his arrest when Officer Rivera fired his weapon first and
defendant acted in self-defense and 2) that the charges were entirely fabricated.
Defendant did not specify what constituted excessive force except Rivera purportedly
fired first. However, all the eyewitnesses confirmed that defendant fired multiple times
before Rivera unholstered his gun. Accordingly, the officer’s use of his weapon was
entirely justified and not excessive force. Defendant’s proposed factual scenario was not
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plausible or internally consistent. It also did not support the defense that defendant had
no intent to kill. At trial, defendant never claimed self-defense.
The additional allegation that the charges were entirely fabricated also fails.
Defendant did not explain how Rivera had lied about the shooting. Defendant admitted
shooting his weapon and firing many times, contradicting any contention that the charges
were entirely fabricated. Defendant’s admissions were consistent with the eyewitness
testimony and the physical evidence. Therefore, it was not plausible that the officer
fabricated the charges against defendant. Also Rivera’s character for dishonesty or
aggressiveness would have no bearing on whether defendant acted with an intent to kill.
As explained above, defendant’s Pitchess motion did not establish good cause for
the discovery of Rivera’s personnel file. The trial court properly exercised its discretion
in denying the Pitchess motion because the declaration contained only general allegations
of misconduct and did not offer any plausible scenario about how the evidence supported
defendant’s defense. (People v. Sanderson (2010) 181 Cal.App.4th 1334, 1340.)
Furthermore, defendant cannot show prejudice. (People v. Memro (1985) 38
Cal.3d 658, 684, overruled on another point in People v. Gaines (2009) 46 Cal.4th 172,
181, fn. 2.) To establish prejudice, defendant must show that there was a reasonable
probability that the outcome of the case would have been different had information been
disclosed to the defense. Here the jury rejected defendant’s claim he did not intend to kill
Rivera, an issue which was not affected by Rivera’s history. In addition, Rivera was
impeached when he was questioned about being fired for lying about the off-duty
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incident. It is not reasonably probable that additional impeachment evidence would have
caused a better outcome for defendant. The testimony of Rivera, the eyewitnesses, and
defendant was consistent. Everyone agreed defendant fired first, aiming in Rivera’s
direction. In view of the overwhelming evidence of defendant’s intent to kill, the denial
of the Pitchess motion was not prejudicial.
Because the trial court did not abuse its discretion in denying the Pitchess motion
and because defendant cannot show prejudice, there was no due process violation.
(People v. Gaines, supra, 46 Cal.4th at p. 183.) Absent prejudice, defendant also cannot
establish ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S.
668, 688.) For the foregoing reasons, we also reject defendant’s request for a remand to
conduct an in camera inspection of defendant’s file. (Gaines, at p. 180.)
IV
UNANIMITY INSTRUCTION
Finally, defendant contends that the trial court erred when it did not instruct the
jury sua sponte with a unanimity instruction. (Cal. Const., art. I, § 16; People v. Jones
(1990) 51 Cal.3d 294; People v. Thompson (1995) 36 Cal.App.4th 843, 850.) No
unanimity instruction was required because the continuous course of conduct exception
applies. Furthermore, any error was harmless.
As a general rule, when the evidence establishes several criminal acts, any one of
which could constitute the crime charged, either the state must elect the act upon which it
relied for the allegation of the information, or the jury must be instructed that it must
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agree unanimously upon which act to base a verdict of guilty. (People v. Jennings (2010)
50 Cal.4th 616, 679; People v. Maury (2003) 30 Cal.4th 342, 423; People v. Russo (2001)
25 Cal.4th 1124, 1132.) However, a unanimity instruction is not required when the
alleged acts are so closely connected as to form a continuous course of conduct.
(Jennings, at p. 679; People v. Napoles (2002) 104 Cal.App.4th 108, 115.)
The exception applies “when the defendant offers essentially the same defense to
each of the acts, and there is no reasonable basis for the jury to distinguish between
them.” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) “In deciding whether to give
the instruction, the trial court must ask whether (1) there is a risk the jury may divide on
two discrete crimes and not agree on any particular crime, or (2) the evidence merely
presents the possibility the jury may divide, or be uncertain, as to the exact way the
defendant is guilty of a single discrete crime. In the first situation, but not the second, it
should give the unanimity instruction.” (People v. Russo, supra, 25 Cal.4th at p. 1135.)
CALCRIM No. 35003 was not required because the attempted murder charge was
based on an ongoing gun battle lasting about four minutes. Defendant admitted shooting
but denied having an intent to kill. The shooting could not reasonably be divided into
discrete criminal events. As explained in Russo, although the evidence presented the
3 CALCRIM No. 3500 provides: “The People have presented evidence of more
than one act to prove that the defendant committed this offense. You must not find the
defendant guilty unless you all agree that the People have proved that the defendant
committed at least one of these acts and you all agree on which act (he/she) committed.”
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possibility that the jury could divide on the issue of when defendant formed the intent to
kill, there was no risk that the events could be viewed as discrete crimes with some jurors
reaching a guilty verdict on one event, and some jurors reaching a guilty verdict on
another event. In such a scenario, a unanimity instruction is not required. (People v.
Russo, supra, 25 Cal.4th at p. 1135.)
Defendant mischaracterizes the prosecutor’s argument as making an election of a
single shot as the basis for the murder charge. Instead, when read in its entirety, the
prosecutor’s closing argument describes the entire attack—as a continuous event—as the
basis for the charge: “Here’s the reasons why we know that the defendant was intending
to kill the officer. He shot at him 10 times. . . . Each of those shots, he aimed at the
officer and shot the gun. He tracked Officer Rivera with the gun. . . . He is tracking that
officer with the gun while he’s shooting. . . . [¶] He aims in the direction of the police
officer and fires multiple times. He shoots until the gun’s empty. . . . The defendant
continued to shoot the gun at the officer, shoot a bullet . . . over and over and over and
over.” At the conclusion of her argument, the prosecutor reiterated that defendant had
“repeatedly fired over and over and over and over [¶] . . . [¶] . . . shooting and aiming
and tracking with that officer until his gun was empty and he couldn’t shoot anymore.”
No unanimity instruction was required because the events constituted a continuous
course of conduct and the prosecutor relied on that conduct in arguing defendant’s guilt.
Furthermore, any error was harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 24; People v. Wolfe (2003) 114 Cal.App.4th 177, 188.)
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“Where the record indicates the jury resolved the basic credibility dispute against the
defendant and therefore would have convicted him of any of the various offenses shown
by the evidence, the failure to give the unanimity instruction is harmless.” (People v.
Curry (2007) 158 Cal.App.4th 766, 783.) The only dispute in this case was whether
defendant intended to kill Rivera when he fired at him. The jury did not find defendant to
be credible. Any error in not giving a unanimity instruction is harmless beyond a
reasonable doubt.
V
DISPOSITION
There was no Pitchess error, instructional error, or prejudice. We affirm the
judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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