The People v. White CA4/2 ( 2013 )

Filed 8/28/13 P. v. White 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055529
v. (Super.Ct.No. RIF10004243)
CRAIG KEYON WHITE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Elisabeth Sichel and
Michael B. Donner, Judges. Affirmed.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha
Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant and appellant Craig Keyon White (defendant) guilty of
four counts of first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)),1 two counts of
attempted robbery (§§ 644, 211) and one count of first degree burglary (§ 459). After
defendant admitted the allegations that he had two strike priors within the meaning of the
three strikes law (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)) and that he had
served a prior term in prison (§ 667.5, subd. (b)), the trial court sentenced him under the
three strikes law to serve four consecutive terms of 25 years to life in state in prison.2
In this appeal defendant challenges the jury’s guilty verdicts on the ground, first,
that by sustaining the prosecutor’s objection to a statement defendant’s attorney made
during closing argument, the trial court violated various rights guaranteed to defendant
under the federal constitution, including his right to a fair trial and his right to the
effective assistance of counsel. Next, defendant contends the trial court abused its
discretion by denying defendant’s so-called Pitchess3 motion. Finally, defendant
contends the trial court abused its discretion by denying defendant’s oral motion for
release of juror identifying information.
We conclude defendant’s claims are meritless. Therefore, we will affirm the
judgment.
1 All statutory references are to the Penal Code unless indicated otherwise.
2 The trial court sentenced defendant to serve one year in state prison on the
section 667.5, subdivision (b), prior prison term, and then struck that sentence.
3 Pitchess v. Superior Court (1974) 11 Cal.3d 531(Pitchess).
2
FACTS
What happened in this case is undisputed—four men, one of whom was armed
with a chrome handgun, entered a house and initially robbed four people, taking items
from them personally and also taking things found in the house, including a Sony
PlayStation®3. Defendant was arrested three weeks after the robbery, when he tried to
pawn the PlayStation®3. The only issue at trial was whether defendant was one of the
robbers.
The four initial robbery victims were Dennis Estevez and Arian Valdez,4 who
lived together in the house where the robbery occurred, Patricia Alvarado, who is
Estevez’s girlfriend, and Marcus Harden, a friend of Estevez and Valdez. During the
robbery, Tyler Gonzalez and Jose Reyes, who are both friends of Valdez and Estevez,
came to the house. Before they could be warned away, Gonzalez and Reyes were
directed into the house by one of the robbers, later identified as defendant, who was
holding a gun to the back of Estevez’s head as Estevez stood at the open door. Defendant
directed them both to lie down on the floor with the three other victims, all of whom had
been directed to cover their heads and not look at defendant or the other robbers. When
the robbers’ attention was diverted, Reyes got up and ran from the house to a
convenience store where he convinced the clerk to call the police.
4 Valdez also apparently was referred to at trial as Arian Ibarra.
3
The robbers left the house before the police arrived, but after taking three of the
remaining five victims into the bathroom and directing them to count to 100. After they
determined the robbers had left the house, one of the victims ran next door and also
called 911.
Estevez, Valdez, Harden, and Alvarado each identified defendant from a
photographic lineup prepared by Deputy Jonathan Bodnar. Although only some of them
identified defendant as the gunman, they all said defendant was one of the robbers.
To support his defense of misidentification, defendant presented an alibi (that he
had been at the hospital on the night of the robbery visiting his recently born son, then at
his mother’s house for the rest of the night and until the next morning) and the testimony
of an expert on memory and suggestibility, which involves the influence that new
information obtained after an event has on one’s memory of that event. The expert,
Mitchell Eisen, who has a doctorate in psychology, and is the director of the graduate
program in forensic psychology at California State University, Los Angeles, testified
about the many things that affect the reliability of memory and that influence the outcome
of a lineup. Among other things, Dr. Eisen testified, when the interviewer knows which
photo is that of the suspect, the interviewer can inadvertently or unconsciously affect the
outcome of the photographic lineup; the viewer of a photographic lineup brings certain
expectations to the process including the expectation that one of the photographs will be
of the suspect and that the interviewer expects the viewer to identify someone;
identification based on the witness’s actual memory typically happens quickly, within
10 to 12 seconds after seeing a lineup; once a witness identifies someone as the suspect,
4
the witness incorporates that image into his or her actual memory of the event and then
reconstructs the event around the person identified; and that the most accurate memories
of an event are those recounted right after the event.
Additional facts pertinent to the issues defendant raises in this appeal will be
recounted below.
DISCUSSION
1.
VIOLATION OF DEFENDANT’S VARIOUS CONSTITUTIONAL RIGHTS
INCLUDING THE RIGHT TO PRESENT A DEFENSE
During her closing argument, defense counsel stated, “And if you believe that
Miss Alvarado, Mr. Estevez, and Mr. Valdez sharing a household together, all of these
individuals being friends, go through this terrifying traumatic incident and never speak a
word of it . . . .” The prosecutor interrupted objecting that the argument was based on
speculation. The trial court sustained that objection. Defendant contends the trial court
effectively precluded him from arguing, due to the close relationship between the three
victims, that it was likely they had talked with each other about the robbery and the
criminal investigation. In other words, defendant contends the trial court precluded him
from attacking the credibility of the victims’ testimony regarding what happened during
the robbery and the validity of their ability to independently identify defendant as one of
the robbers.
5
The right to present a closing argument is not in dispute in this appeal. (See
Herring v. New York (1975) 422 U.S. 853, 858-860.) What is disputed is defendant’s
characterization of the effect of the trial court’s ruling. That characterization is
inaccurate. Therefore, even if the trial court’s ruling was incorrect it did not affect
defendant’s ability to present his defense of mistaken identification.
The record discloses that defense counsel did not miss a beat. Despite the
prosecutor’s objection and the trial court’s ruling, defense counsel completed her
argument that it was “unreasonable” for the jury to believe the victims had not talked
with each other about the robbery. Before the prosecutor asserted the speculation
objection, defense counsel had pointed out that one of the victims, Tyler Gonzalez, not
only “admitted that he wouldn’t be able to ID anybody from the get go. . . . But even
more importantly, Mr. Gonzales [sic] told us something else: He told us how many times
these witnesses had talked to each other.” As defense counsel stated, Tyler Gonzalez
“said something like he had been asked so many questions over and over again, he was
confusing the details himself. He couldn’t remember what he personally remembered
anymore versus what someone else had told him.”
Defense counsel argued at great length and in detail why the victims’
identifications of defendant from a photo lineup were tainted and consequently
unreliable. Not only did defense counsel point out that the victims presumably had talked
with each other, but also that before they were shown the lineups, Arian Valdez and
Dennis Estevez had read the police reports, “[p]olice reports that include[d] witness
statements.” Defense counsel made similar arguments regarding each of the victims. For
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example, he argued that Marcus Harden, as well as Valdez and Estevez, knew defendant
was the pawnshop suspect at the time Deputy Bodnar showed him the photo lineup that
included defendant’s photo.
With respect to Patricia Alvarado, defense counsel argued Deputy Bodnar must
have shown her defendant’s photo before she identified him from the photo lineup.
Otherwise, it was just too coincidental that Deputy Bodnar had a photograph of defendant
smiling and revealing his crooked teeth, and produced that photo when Miss Alvarado
said she would be more confident of her identification if she could see the teeth of the
person she had just identified.
In addition to pointing out the defects and inconsistencies in the testimony of the
victims, defense counsel correlated those defects and deficiencies to Dr. Eisen’s
testimony. For example, defense counsel reminded the jurors that Dr. Eisen had talked
about contamination, which results when a witness is exposed to other people’s versions
of an event. Defense counsel also reminded the jurors that Dr. Eisen had explained the
concept of expectancy and how it affects the validity of identification from a
photographic lineup: the viewer knows he or she is expected to identify someone and
that expectancy can result in an incorrect identification.
We will not recount anymore details of defense counsel’s closing argument. From
the noted examples, and our review of the record, we are persuaded defendant was able to
fully and completely present his defense of misidentification both in cross-examination of
witnesses and in closing argument. Because defendant’s initial assertion is incorrect, we
will not address the remainder of his argument. In short, by sustaining the prosecution’s
7
objection that defense counsel’s argument was based on speculation, defendant was not
precluded from presenting his defense or otherwise adversely affected and therefore if the
trial court erred the error was harmless. (People v. Watson (1956) 46 Cal. 2d 818, 836.)
2.
DENIAL OF DEFENDANT’S PITCHESS MOTION
Defendant filed a motion for discovery of the personnel records of Riverside
County Sheriff’s Deputy Bodnar, the deputy who prepared the photographic lineups and
showed those lineups to the robbery victims. Defendant asserted in his motion that the
deputy’s personnel records were discoverable under Evidence Code section 1043 et seq.,
which codifies the Supreme Court decision in Pitchess. The trial court denied
defendant’s motion after finding defendant had not made the required showing.
Defendant contends in this appeal that he established the required plausible factual
scenario, which in turn triggered the trial court’s obligation to conduct an in camera
review of the deputy’s personnel file to determine if it contains material relevant to
defendant’s claim. We disagree with defendant’s assertion.
The pertinent legal principles are well settled. A criminal defendant is entitled to
discovery of a police officer’s confidential personnel records if those files contain
information that is potentially relevant to the defense. (Pitchess, supra, 11 Cal.3d at
pp. 537-538; Evid. Code, §§ 1043-1045.) To obtain discovery, the defendant must file a
motion, supported by affidavits “showing good cause for the discovery or disclosure
sought, setting forth the materiality thereof to the subject matter involved in the pending
litigation.” (Evid. Code, § 1043, subd. (b)(3).) If good cause is shown, the trial court
8
then reviews the records in camera to determine if any of them are relevant to the
proposed defense. (Evid. Code, § 1045, subd. (b).)
The good cause showing that triggers the trial court’s in-chambers review is
“relatively low.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal. 3d 74, 83.) The
defendant must present a specific factual scenario of officer misconduct that is plausible,
i.e., one that could or might have occurred. (Warrick v. Superior Court (2005) 35 Cal. 4th
1011, 1018-1019 (Warrick); see also California Highway Patrol v. Superior Court (2000)
84 Cal. App. 4th 1010, 1017.) The defendant must also demonstrate how the discovery
would support the defense or how it would impeach the officer’s version of events.
Because the information discoverable under a Pitchess motion is limited to “instances of
officer misconduct related to the misconduct asserted by the defendant,” (Warrick, supra,
35 Cal.4th at p. 1021) the defendant must also specifically describe that misconduct. On
appeal we review a trial court’s ruling on a Pitchess motion for abuse of discretion.
(Alford v. Superior Court (2003) 29 Cal. 4th 1033, 1039.)
In this case, defendant’s trial attorney offered the following factual scenario to
support defendant’s Pitchess motion: Defendant was at his mother’s house, not at the
scene of the crime, on the night in question; defendant did not participate in the crimes,
nor did he have any knowledge that the Sony PlayStation®3 was stolen property; Deputy
Bodnar assumed defendant had participated in the robberies once the deputy learned
defendant had pawned the stolen Sony PlayStation®3; Deputy Bodnar’s “overzealousness
to turn [defendant] into a robbery suspect caused [defendant] to be wrongfully identified
by witnesses who were unable to identify any suspect, or otherwise would not have
9
identified [defendant] as a suspect”; Deputy Bodnar “falsified his reports regarding the
conversations and conduct of himself and of the witnesses surrounding alleged
identifications of [defendant] as a suspect”; Bodnar stated in his reports that he had
recorded the witness interviews and booked those recordings into evidence, but then he
destroyed those recordings in an effort to prevent his misconduct from being discovered;
and the “Riverside County District Attorney’s Office and Riverside County Sheriff’s
Department have both had reason to question [Deputy] Bodnar’s veracity and conduct as
an officer in this and other cases, thus prompting investigations from both agencies.” In a
supplemental declaration, defense counsel acknowledged that Deputy Bodnar’s recorded
witness interviews had been located but that his reports of what the witnesses said when
they identified defendant in the photo lineups conflicted with the recorded interviews.
In short, defendant’s factual scenario is that he was not one of the robbers; he was
at his mother’s house on the night of the robbery; Deputy Bodnar must have done
something untoward in connection with the photo lineups, such as tampering with the
evidence or unduly influencing the victims, which explains why the victims identified
defendant; and the deputy destroyed the recordings of those interviews in order to cover
up his misconduct. That is a specific factual scenario. The remaining issue is whether
that scenario is plausible.
To determine plausibility, i.e., whether the scenario could have or might have
occurred, we look to the evidence defendant submitted to support his claim. Defendant’s
factual scenario was plausible only until Deputy Bodnar located the recordings of his
interviews with the victims. Once the recordings were located, and defense counsel
10
submitted transcripts of those recordings to the court to support defendant’s motion, the
plausibility of defendant’s factual scenario turned on the content of the transcripts which
showed what actually occurred. The trial court found defendant’s factual scenario was
not plausible because the police reports and transcribed witness interviews of what
actually happened contradicted defendant’s scenario that Deputy Bodnar had somehow
influenced their selection of defendant from the photo lineup.
We agree with the trial court that the evidence does not support, and in fact
refutes, defendant’s scenario that Deputy Bodnar improperly influenced the victims’
identification of defendant from the photo lineups. In arguing otherwise, defendant cites
discrepancies between the recordings of the interviews and Deputy Bodnar’s written
reports. For example, defendant notes Deputy Bodnar’s police report does not disclose
that when Valdez a.k.a. Ibarra selected defendant’s photograph from the so-called six-
pack photo lineup he said, “This guy looks closer, but I don’t think it was him. The other
guy looked older.”5 That fact does not establish defendant’s claim that Deputy Bodnar
influenced Ibarra to identify defendant from the photo lineup. It only shows Ibarra was
less than 100 percent certain about that identification, a fact Deputy Bodnar included in
his report when he stated Ibarra indicated he was 50 percent sure defendant entered the
house and committed the robbery.
5 The transcript of the recorded interview shows Ibarra also stated, “the whole
face structure, very similar. I mean it’s been over a month, you know.” After Deputy
Bodnar said, “Mm-hm,” Ibarra continued, “So, it’s pretty hard for me to tell, but number
six [defendant’s photo] looks like he has that, you know, facial features, but . . . .”
11
Similarly, the transcript of Deputy Bodnar’s interview of Dennis Estevez does not
support defendant’s assertion that the deputy prompted Estevez to pick defendant’s
photograph. The transcript discloses that the deputy asked, “Okay. Is there anyone that
looks similar, ‘cause I see you—it kinda looks like you keep paying attention to one
photograph to me. You keep looking back at the one.” Estevez identified a photograph
(“Maybe this one with the du-rag”) and indicated he was 50 percent positive about the
identification.
We will not address each witness identification because defendant has
demonstrated only that the recordings of the interviews differ in some respects from some
of Deputy Bodnar’s reports; they do not show that he improperly influenced any of the
victims into selecting defendant’s photograph from the photo lineups. In short, we know
from the evidence what actually occurred when Deputy Bodnar interviewed each of the
witnesses, and that evidence shows defendant’s scenario is not plausible. Therefore, the
trial court did not abuse its discretion when it denied defendant’s Pitchess motion based
on defendant’s failure to establish good cause for the requested discovery.
3.
DISCLOSURE OF JUROR INFORMATION
Defendant filed a motion for new trial in which he asserted jury misconduct,
among other things. According to the declaration of his attorney submitted in support of
the new trial motion, after trial concluded and the trial court discharged the jury, about
two-thirds of the jury panel stayed and discussed the case with the attorneys; during that
discussion the jurors “collectively stated,” among other things, that when the jurors were
12
unable to reach verdicts after several days of deliberations, they discussed their
observations that throughout the trial, defense counsel would talk to defendant after
cross-examining prosecution witnesses; “[t]he jurors . . . opined that discussion between
[defense counsel] and the defendant would have been unnecessary if the defendant had
not been one of the robbers”; and after the jury’s discussion, at least one juror changed
her verdict from not guilty to guilty.
In its opposition the prosecution asserted, first, that defense counsel’s declaration
was hearsay to the extent it purported to recount what a juror had said, and in any event,
defense counsel’s version of what the juror said was wrong. According to the prosecutor,
who was present and also talked with the jurors after they had been discharged, the
attorneys had asked for constructive criticism. One juror responded that she did not think
it was wise, if they were claiming defendant was not there, for defense counsel to ask
defendant after each witness testified whether there was anything else defense counsel
needed to ask. That juror thought it “seemed strange if the defendant was claiming he
wasn’t there.” According to the prosecutor, the juror did not say they discussed this
during their deliberations and she did not say that they changed their verdicts as a result.
The trial court heard defendant’s new trial motion in conjunction with defendant’s
sentencing hearing. At that hearing, the trial court asked defense counsel to address the
issue of whether her declaration was inadmissible hearsay. Defense counsel responded,
“Well, your Honor, if the Court feels as though it needs more factual information, then I
would request to unseal the juror information so that a questionnaire or something of the
sort could be sent to the jurors so that the Court can receive the information that it’s
13
seeking.” The trial court denied that request and ultimately denied defendant’s new trial
motion.
On appeal, defendant characterizes the statement quoted above as a motion under
Code of Civil Procedure section 237 for disclosure of juror identifying information. We
do not agree, but we will not belabor the point, because even if we were to agree,
defendant has not demonstrated error.
After the jury’s verdict is recorded in a criminal case, the personal identifying
information about the jurors who served on the trial is sealed. (Code Civ. Proc., § 237,
subd. (a)(2).) A defendant or the defendant’s attorney may request access to that
information in order to “communicate with jurors for the purpose of developing a motion
for new trial or any other lawful purpose.” (Code Civ. Proc., § 206, subd. (g).) The
procedure for obtaining that information is set out in Code of Civil Procedure section
237, subdivision (b): “Any person may petition the court for access to these records. The
petition shall be supported by a declaration that includes facts sufficient to establish good
cause for the release of the juror’s personal identifying information. The court shall set
the matter for hearing if the petition and supporting declaration establish a prima facie
showing of good cause for the release of the personal juror identifying information . . . .”
On appeal, we review a trial court’s denial of a petition to disclose juror identifying
information for abuse of discretion. (People v. Carrasco (2008) 163 Cal. App. 4th 978,
991.)
14
The trial court denied defendant’s request for disclosure of juror identifying
information in part because defendant had not been diligent in making his request. As the
trial court observed, defendant had an opportunity to complete his investigation in order
to file a new trial motion. The fact defense counsel waited until the hearing on that
motion to request disclosure of juror information suggests that information would not aid
defendant in developing his juror misconduct claim.
Defense counsel learned of the purported jury misconduct on the last day of trial,
when she spoke with the jurors outside the courtroom. Despite that knowledge, defense
counsel did not immediately report the purported misconduct to the trial court, nor did
she ask for contact information from the juror who reputedly revealed the misconduct.
Despite the obvious differences, the circumstances here are equivalent to those in People
v. Carrasco, in which the court stated, in holding the trial court did not abuse its
discretion in denying disclosure of juror identifying information, “What strikes us even
more is that defense counsel learned about the claimed juror misconduct during the trial,
before a verdict was entered, and had an opportunity to try to rectify any problem she
perceived. Defense counsel could have proposed an additional line of inquiry to the trial
court if she believed jury misconduct had occurred which the court was overlooking. She
did not.” (People v. Carrasco, supra, 163 Cal.App.4th at p. 991.)
15
Because defense counsel did not take any action with respect to the jury’s
purported misconduct other than cite it in a motion for new trial, we suspect the
prosecutor’s version more accurately describes what happened when the attorneys talked
with the jurors. In any event, we conclude the trial court did not abuse its discretion by
denying defendant’s request to disclose identifying information about the trial jurors.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.
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