People v. Wright CA1/2 ( 2022 )

Filed 12/14/22 P. v. Wright CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A160784
v.
DIONTAE STEPHVON WRIGHT, (Mendocino County Super. Ct.
No. SCUKCRCR1792125)
Defendant and Appellant.
Defendant Diontae Stephvon Wright appeals from his conviction after a
jury found him guilty of first degree robbery and reckless driving while
evading a peace officer. Wright contends the trial court abused its discretion
in denying his Pitchess1 motion to discover information in police personnel
files. In denying the motion, the trial court held that Wright failed to make
the requisite showing of good cause in setting forth any plausible scenario of
police misconduct. We agree, but remand the matter for the limited purpose
of resentencing under amended Penal Code section 1170, subdivision (b)(6).2
1 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
All further statutory references are to the Penal Code unless
2
otherwise specified.
1
BACKGROUND
In 2017, Sally Gurule shared a home in Willits with her adult son, Van
Slagle (Van). Gurule’s other adult son, Justin Slagle (Justin), occasionally
stayed there.3 Gurule grew marijuana at the property and stored the
harvested marijuana in both her garage and inside the house. On
October 27, 2017, at around midnight, Justin came to stay over after working
all day. Gurule was sleeping in her room and Van was taking a shower.
Justin promptly fell asleep on the couch and was awoken by someone
pointing a shotgun at his face and telling him to get down on the floor. Justin
later identified this person as Wright. Wright was accompanied by two other
individuals who were later identified as Christopher Bradford and Michael
Taylor. They ordered Gurule and Van at gunpoint to get down on the floor as
well. The intruders went through the house and asked where the cash and
cell phones were. Gurule responded she did not have any cash. They then
took two large bins of marijuana from a bedroom closet and ordered Gurule
and her sons to go into the closet, which they did. Shortly after, Justin came
out and went to the back door, which was next to the driveway. He saw the
three men dumping the marijuana into garbage bags and putting them in the
back of a red or orange Jeep, before driving off.
After this robbery was reported at around 1:30 a.m., police officers
Curtis Labus and Justin D’Orazio positioned their patrol cars at an
intersection that the Jeep would likely be driving through. After spotting the
Jeep, Labus and D’Orazio activated their lights and sirens and pursued it.
The Jeep accelerated to up to 70 miles per hour and then slowed down and
ran a stop sign. As the Jeep slowed down, Bradford and Taylor jumped out of
To avoid confusion, we refer to the Slagle brothers by their first
3
names and mean no disrespect in doing so.
2
it. Labus continued to pursue Wright in the Jeep while D’Orazio pursued
Bradford and Taylor.
During his pursuit, Officer Labus saw the Jeep slow down at one point
as the driver’s side door began to open. To prevent Wright from jumping out,
Labus pulled his vehicle alongside the Jeep. As he did so, the Jeep turned
into his patrol vehicle, causing Labus to sideswipe the Jeep. Wright then
opened his driver’s door into Labus’ moving vehicle, which caused the door to
the Jeep to break. Wright then ran off. Shortly after, Labus and Deputy
Jack Woida detained Wright after someone reported a black male adult lying
in the corner in a yard behind their apartment. Wright’s wallet and
identification were found in the driver’s side door of the Jeep. Another officer
brought Justin to where Wright was to make an in-field identification.
Justin identified Wright as the one who had held a shotgun to his face.4
After Bradford and Taylor jumped out of the Jeep, they ran through an
opening in a fence. Officer D’Orazio, who was pursuing them in his vehicle,
turned toward the fence but was unable to brake in time and struck the
fence. He continued his pursuit, lost sight of Bradford, but detained Taylor.
Bradford was later detained by Officer Michael Bennett after being seen
walking on the side of the road with debris and fresh tears on his clothing.
Bradford’s appearance was consistent with the description that Bennett was
provided earlier of this fleeing suspect.
Wright and Bradford were charged with three counts of kidnapping to
commit robbery (§ 209, subd. (b)(1); counts one to three), first degree robbery
in concert with two or more individuals (§§ 211, 213, subd. (a)(1)(A);
count four), three counts of assault with a firearm (§ 245, subd. (a)(2);
4 At trial, Wright maintained that he remained in the Jeep on the
night of the robbery and did not hold a shotgun to Justin’s face.
3
counts five to seven), reckless driving while evading a peace officer (Veh.
Code, § 2800.2, subd. (a); count eight), driving on a highway against traffic
while evading a peace officer (Veh. Code, § 2800.4; count nine), and assault
with a deadly weapon other than a firearm on a peace officer (§ 245, subd. (c);
count ten).5 Counts one to seven included a special allegation of personal use
of a firearm (§ 12022.53, subd. (b), 12022.5, subd. (a)).
Prior to trial, Wright filed a Pitchess motion to discover the personnel
files of eight peace officers: five from the Mendocino County Sheriff’s Office
and three from the Willits Police Department. The motion alleged that the
officers engaged in dishonesty and racial bias, falsified police reports and
used excessive force. The trial court heard and denied the motion in its
entirety.
Following a jury trial, Wright was found guilty of first degree robbery,
assault with a firearm, reckless driving while evading a peace officer, and
driving against traffic while evading a peace officer (counts four to nine). The
jury found not true the firearm allegations with respect to counts four to
seven. The jury further found Wright not guilty of assault with a deadly
weapon on a peace officer (count ten). The jury was unable to reach a verdict
as to the three kidnapping counts and a mistrial was declared as to counts
one to three. The prosecution subsequently dismissed these charges
pursuant to a negotiated plea in exchange for Wright’s agreement to a special
arming allegation pursuant to section 12022, subdivision (a)(1).
On June 14, 2019, the trial court sentenced Wright to an aggregate
term of eight years and eight months in state prison.
5 Taylor was charged with robbery in the original complaint but
entered into a plea before the preliminary hearing.
4
Wright’s appeal was deemed constructively and timely filed by this
court.
DISCUSSION
I.
Standard of Review
A Pitchess motion provides that “a criminal defendant [can] ‘compel
discovery’ of certain relevant information in the personnel files of police
officers by making ‘general allegations which establish some cause for
discovery’ of that information and by showing how it would support a defense
to the charge against him.” (Warrick v. Superior Court (2005) 35 Cal.4th
1011, 1018-1019 (Warrick).) “A motion for discovery of peace officer
personnel records is addressed to the sound discretion of the trial court” and
is reviewed only for abuse of discretion. (Alford v. Superior Court (2003)
29 Cal.4th 1033, 1039.)
II.
Pitchess Motion Requirements
The discovery of a police officer’s personnel files by a criminal
defendant involves a two-step procedure. A defendant must first file a
motion that describes the type of records sought, supported by “[a]ffidavits
showing good cause for the discovery or disclosure sought, setting forth the
materiality thereof to the subject matter involved in the pending litigation
and stating upon reasonable belief that the governmental agency identified
has the records or information from the records.” (Evid. Code, § 1043,
subd. (b)(3).) If the trial court finds good cause for discovery, it proceeds to
the second step and “reviews the pertinent documents in chambers and
discloses only that information falling within the statutorily defined standard
of relevance.” (Warrick, supra, 35 Cal.4th at p. 1019.)
5
To show good cause under the first step, “defense counsel’s declaration
in support of a Pitchess motion must propose a defense or defenses to the
pending charges. The declaration must articulate how the discovery sought
may lead to relevant evidence or may itself be admissible direct or
impeachment evidence . . . .” (Warrick, supra, 35 Cal.4th at p. 1024.) The
declaration “must also describe a factual scenario supporting the claimed
officer misconduct” that establishes “a plausible factual foundation” for the
misconduct. (Id. at pp. 1024-1025.) Where the trial court has pertinent
documents such as police reports and witness statements in addition to
defense counsel’s affidavit, the court “determines whether defendant’s
averments, ‘[v]iewed in conjunction with the police reports’ and any other
documents, suffice to ‘establish a plausible factual foundation’ for the alleged
officer misconduct and to ‘articulate a valid theory as to how the information
sought might be admissible’ at trial.” (Id. at p. 1025.) A plausible scenario
“presents an assertion of specific police misconduct that is both internally
consistent and supports the defense proposed to the charges.” (Id. at
p. 1026.)
A defendant “need not present a factual scenario that is reasonably
likely to have occurred or is persuasive or even credible.” (People v.
Thompson (2006) 141 Cal.App.4th 1312, 1318.) However, a court is
permitted “to apply common sense in determining what is plausible, and to
make determinations based on a reasonable and realistic assessment of the
facts and allegations.” (Id. at pp. 1318-1319.) For example, our Supreme
Court found that good cause was shown where a defendant alleged a specific
factual scenario that police officers used excessive use in arresting him. This,
combined with the fact that the police reports indicated that considerable
force was used, was enough to establish a plausible factual foundation for an
6
allegation of misconduct. (City of Santa Cruz v. Municipal Court (1989)
49 Cal.3d 74, 85-86 (Santa Cruz).)
III.
The Trial Court Did Not Abuse Its Discretion
in Denying Wright’s Motion.
Wright argues that the trial court abused its discretion in denying his
Pitchess motion.6 We disagree. Wright’s motion alleged various misconduct
against eight peace officers. We summarize and discuss each alleged
instance of misconduct below.
A. Sergeant Cromer
Wright alleged that Sergeant Quincy Cromer was dishonest in his
police report because he purposefully omitted that Justin used the word
“n- - - - r” during his in-field identification of Taylor. During this in-field
identification, which was also audiotaped, Justin commented that he
recognized Taylor by his sweatshirt and “his dreadlocks or whatever they are,
those n- - - - r braids hanging out from his hat, underneath [h]is hood.”
Cromer’s report stated that “Justin said he was able to positively identify the
suspect by his hair and his sweatshirt with writing.” The report however,
also noted that the audio recording of this identification was booked into
evidence.
The trial court held Wright had not alleged a plausible scenario of
misconduct. The court noted that Cromer had recorded the in-field
identification and that an officer cannot be expected to include everything
said in a recording in his report. The court further stated it did not attribute
6 On appeal, Wright broadly argues that the trial court abused its
discretion given the low threshold showing of good cause needed for a
Pitchess motion but provides little analysis as to how his allegations against
each officer established a plausible factual foundation for peace officer
misconduct.
7
any racist statement or motives Justin may have had to Cromer. We agree
with the trial court’s reasoning. Wright has not alleged a plausible factual
foundation that Cromer attempted to conceal Justin’s racist remark where
Cromer not only recorded the in-field identification but booked it into
evidence and referenced the recording in his report. These facts present an
internal inconsistency with Wright’s allegation of misconduct against
Cromer.
B. Deputy Woida
Wright alleged that Deputy Woida: (1) lied in his report that Justin
identified Wright after Wright was removed from the police vehicle; (2) lied in
his report that Justin recognized Wright by his clothing; (3) struck and
interrogated Wright after handcuffing him; and (4) fabricated a statement
that dispatch had located Wright’s driver’s license in order to justify his
detention of Wright.
As to the first allegation, Wright’s motion argued that in the recording
of Justin’s in-field identification, Justin identified Wright before he was
removed from the police vehicle, but Woida falsely wrote in his report that
Justin identified Wright after he was removed from the vehicle.
In the transcript of the recording, Justin stated, before the sound of a door
opening was noted, “I can tell you right now it’s him.” After the door opened
and 15 seconds were noted to have passed, Justin confirmed, “Yup, that’s
him.” The trial court held that there was no plausible scenario of misconduct
based on Woida’s report and the transcript. It was simply that not every
statement from the transcript was included in the report. We agree. Justin
affirmatively identified Wright after Wright was removed from the police
vehicle, which was what Woida included in his report. That Justin may have
8
been eager to make his identification does not support any dishonesty or
misconduct by Woida.
As to the second allegation, Wright argued that Woida’s report falsely
stated that Justin recognized Wright by his clothing when Justin made no
such statement during the in-field identification. The report stated that
Justin identified Wright as “suspect number one based on seeing [Wright’s]
face and remembering the clothing he was wearing (refer Deputy Byrnes case
report 17-31567).” Deputy Clint Byrnes had interviewed Justin at the
residence immediately after the robbery and then drove him to where Woida
and Wright were for the in-field identification. Byrnes’ report noted that
Justin described Wright (“Suspect #1”) as wearing “a black hooded
sweatshirt . . . black pants, and black Nike shoes.”
The trial court held a plausible scenario had not been alleged that
Woida intended to lie or to mislead. We agree. Wright failed to establish a
plausible factual foundation to support that Woida fabricated in his report
that Justin had commented on Wright’s clothing during his identification.
Woida’s report did not state this but only noted that Justin’s identification of
Wright was aided by his recollection of what Wright was wearing. The report
specifically referenced Byrnes’ report with respect to Justin’s recollection of
Wright’s clothing. Woida’s report also included that the audio recording of
the in-field identification was booked into evidence, which further negates the
allegation that he intended to fabricate something that the recording did not
include.
The third allegation of misconduct was that Woida struck and
interrogated Wright after handcuffing him. Wright’s only support for this
was that Woida stated in his report that he asked Wright information about
his identity after handcuffing him but did not record this conversation. At
9
the hearing for the motion, Wright’s counsel did not bring this point up as a
basis for misconduct against Woida. The trial court nonetheless denied the
motion in its entirety based on Wright’s failure to establish any plausible
scenario of misconduct. We see no abuse of discretion. Wright failed to
describe a specific factual scenario of misconduct as required under the first
step of a Pitchess motion. (Warrick, supra, 35 Cal.App.4th at p. 1025.) There
were no documents cited to support his allegation, and to hold that the
absence of a recording alone plausibly meant that excessive force was used is
an unreasonable conclusion.
Lastly, the motion alleged that before Woida found Wright’s driver’s
license in the Jeep, he “fabricated the statement that dispatch informed him
that they had Diontae Wright’s Driver’s License in order to justify his
detention of Mr. Wright while he searched the Jeep.” In opposition to the
motion, the Mendocino County Sheriff’s Office clarified this was simply a
misreading of Woida’s report. The report noted that dispatch had “located” a
driver’s license that matched Wright’s name. This did not mean that
dispatch physically located Wright’s driver’s license, but only that it had
located the license in its computer system. Wright did not challenge this
point at the hearing. Accordingly, we find no plausible scenario of
misconduct.
C. Detective Lima
The motion next argued that Detective Zemanuel Lima omitted from
his report that Wright said he wanted to stop talking and get an attorney
during their interview. The report itself however, stated, “Wright mentioned
his attorney and he was specifically asked if he remembered his rights and
wanted to continue talking. Wright said he did want to continue talking and
asked why the interview was continuing if we had all the information.”
10
In the transcript of the recorded interview, Wright stated at one point
that he “want[ed] to stop talking and get a lawyer.” He then continued
talking without any questions being posed to him, and the detective asked
Wright multiple times whether he wanted to continue talking. Wright
responded, “Well I want to make that decision as we talk more.” The
detective then stated, “That’s not how it works” to which Wright replied, “I
haven’t even stated I want a lawyer present, I’m just saying like, the more we
talk, then I’ll know.” The interview then proceeded and Wright answered the
rest of the detectives’ questions.
The trial court held that the above did not rise to misconduct or an
attempt to conceal any misconduct. We agree. In the context of the whole
interview, the trial court noted that after Wright referenced getting an
attorney, the detectives had a lengthy discussion with him to clarify whether
he wanted to have an attorney, before proceeding with the interview. Wright
expressly stated, somewhat contrary to his earlier statement, that he had not
stated he wanted an attorney present.7 Similar to the allegations of falsity
against Cromer and Woida, Wright has not established a plausible factual
foundation for alleged misconduct where Lima’s report accurately
summarized but merely did not include everything contained in the
transcript of the interview. The video and audio recordings of the interview
were also placed into evidence and are inconsistent with the allegation that
Lima lied in an attempt to conceal any violation of Wright’s Fifth
Amendment rights.
7 The trial court reasoned this was because Wright “was attempting to
get the detectives to show their hand or tell him what evidence they had in
order to facilitate his decision in terms of whether or not he wanted to be
represented by counsel.”
11
D. Sergeant Porter
Wright’s motion briefly alleged that “when Sergeant [Andrew] Porter
“removed Diontae Wright from the vehicle for his in-field identification, he
struck Mr. Wright and dragged him out of the vehicle with excessive force.”
At the hearing on the motion, Wright’s counsel argued that this allegation
was supported by a recording of Justin’s in-field identification of Wright with
Woida. The transcript of the recording noted that as Porter took Wright out
of his patrol vehicle from a distance for the in-field identification, there was
“sound of shuffling and door opening; 15 seconds pass.” After confirming that
Wright was not charged with resisting arrest, the trial court denied the
motion as to Porter and stated, “The idea that Sergeant Porter struck Mr.
Wright comes out of the whole cloth here.”
We find no abuse of discretion. To establish a plausible factual
foundation for misconduct, a specific factual scenario must be described and
is considered in conjunction with pertinent documents such as police reports.
(Warrick, supra, 35 Cal.App.4th at p. 1025.) In Santa Cruz, supra, 49 Cal.3d
at page 79, the defendant alleged in support of his claim of excessive force
that the officers grabbed his hair, threw him to the ground, and stepped on
his head when they arrested him. The police reports likewise stated that the
officers struck defendant and wrestled him to the ground. (Id. at p. 93.) Our
Supreme Court concluded, “Viewed in conjunction with the police reports,
counsel’s averments establish a plausible factual foundation for an allegation
of excessive force . . . .” (Id. at p. 86.) By contrast, a general allegation that
officers did not obtain “knowing and voluntary consent to enter” defendant’s
residence, unsupported by any police reports, “failed to provide a ‘specific
factual scenario’ establishing a ‘plausible factual foundation’ for this
12
allegation.” (City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135,
1147.)
Here, Wright made a general allegation that Porter used excessive
force and struck him as he was getting out of the patrol car. Wright provided
no further details as to what this excessive force entailed or the
circumstances of the alleged strike. There were no police reports that
supported the use of excessive or considerable force against Wright. A
reasonable and realistic assessment of the notes of “shuffling” and 15 seconds
having passed in the recording does not support that Porter used any
excessive force or hit Wright. Indeed, there was another note of “shuffling
sounds” in the transcript when Woida handed Justin some paperwork to sign.
This is inconsistent with the allegation that “shuffling” should plausibly be
interpreted as the sound of a physical alteration or struggle.
E. Deputy Byrnes
Wright alleged that Deputy Byrnes: (1) omitted from his report the
identity of a witness, “Josh” who had previously been to Gurule’s residence to
buy marijuana and “[knew] who committed the robbery”; (2) omitted certain
statements in his report made by Justin regarding his recollection of the
robbery; (3) instructed Justin to lie about previously seeing Josh so as not to
expose Gurule’s illegal marijuana activity; and (4) concealed information
regarding Gurule’s marijuana business to protect her credibility as a witness.
As to the first allegation, in the recording of Byrnes’ interview with
Gurule and her sons, “Josh” was first mentioned by Van, who stated, “They
were running around with Josh’s 40 Glock.” Later in the interview, Justin
stated, “Whoever that other guy that came up here with Josh was the other
guy.” Byrnes’ report did not mention “Josh.” In denying the motion as to
Byrnes, the trial court concluded, “So the narrative section of the police
13
report is about eight pages. And I understand the point that not everything
that is said in the transcripts, the recordings of three separate individuals,
over 50 pages, is going to be included in the summary.” For the same reasons
discussed above, we find no abuse of discretion where the police report was
only meant to be a summary and the recording of the full interview was
placed into evidence.
Likewise, that Byrnes did not include every single statement made by
Justin during the interview regarding his recollection of what occurred
during the robbery does not create a plausible scenario of misconduct. The
report itself noted that a disk containing the victims’ statements was placed
into evidence. This is not internally consistent with an allegation that
Byrnes attempted to conceal certain statements made by Justin. (See
Warrick, supra, 35 Cal.4th at p. 1026.)
The final two allegations were that Byrnes attempted to conceal certain
information so as not to expose Gurule’s illegal marijuana business and
diminish her credibility. The trial court was not persuaded and stated, “I
think it’s obvious from everything I read that it was a marijuana robbery
from the get-go and that the victims were engaged in illegal activity, at least
two of them.” We agree. In his report, Byrnes noted Gurule’s statement that
the suspects took “two gray-colored Rubbermaid type bins” that were in her
bedroom closet. The first bin “had about 2-3 pounds of processed marijuana
bud and the other bin was about half full of marijuana shake.” The report
then noted that Gurule advised him that she sold “several pounds of
marijuana for $700 per pound.” This again, is plainly inconsistent with any
allegation that Byrnes was attempting to conceal that Gurule grew or sold
marijuana.
14
F. Officer D’Orazio
Wright alleged that during the pursuit of Bradford and Taylor, Officer
D’Orazio attempted to strike these two with his patrol car as they ran
through a fence opening. D’Orazio’s report stated that when he saw Bradford
and Taylor run through the fence opening, he “turned towards the fence and
applied the brakes to [his] patrol vehicle.” His report then noted he “was
unable to stop [his] patrol vehicle and struck the fence.” Wright argued that
based on what was included in this report, “the only explanation” for why
D’Orazio drove towards the fence was because he intended to hit the two
suspects.
The trial court concluded it did not “see any plausible scenario relating
to the defense that has been made out against Officer D’Orazio’s conduct.”
The court reasoned, “When there’s a high-speed chase after a felony is
committed and people are possibly armed and drive recklessly through a
populated area in the middle of the night, it’s not at all surprising that
something like this might happen.” The court further noted that there was
an “extra judicial statement of another one of the co-defendants who largely
corroborates what was said by the various officers in this case.”
This allegation of misconduct does not appear to relate to any defense
in Wright’s case, since Wright was not involved in this incident. In any
event, we find no abuse of discretion in the trial court’s conclusion that the
circumstances surrounding the chase, including that it occurred late at night,
combined with D’Orazio’s explanation in his report as to why he accidently
hit the fence, does not create a plausible scenario that D’Orazio purposefully
tried to hit Bradford and Taylor. The trial court’s reference to the
corroborating extra judicial statement made by Taylor, as set forth in the
Willits Police Department’s opposition to the motion, further supports the
15
court’s conclusion that a plausible factual foundation for misconduct had not
been established.8
G. Officer Labus
Wright argued that during the other high-speed chase in which he was
involved, Officer Labus “deliberately rammed the Jeep to seriously injure the
driver, and then fabricated the statements about the Jeep’s driving in order
to justify the damage he caused to the Jeep.” Labus’ report stated that the
Jeep was driving erratically and at one point turned into Labus’ vehicle,
which caused Labus to sideswipe the Jeep. The trial court questioned how
this allegation was relevant to Wright’s case since Wright denied that he was
even in the Jeep at this time. Wright’s counsel responded that the allegation
did not relate to excessive force but was relevant to Labus’ dishonesty as a
witness.
The trial court found that Wright had not established a plausible
scenario that Labus intentionally rammed his vehicle into the Jeep. The
court reasoned that this was a dangerous and high-speed chase in a
populated area following an armed robbery, and that “some slight collision or
damage to one or more of the vehicles isn’t at all surprising.” We find no
abuse of discretion in this reasonable and realistic assessment of the facts,
especially given the chaotic setting of the chase and Wright’s erratic actions
in attempting to flee. Indeed, as the report noted, Wright opened his driver’s
door into Labus’ moving vehicle at the end of the chase so he could escape,
causing the door to the Jeep to break off.
8The opposition argued that Taylor made a series of in-custody
admissions, none of which included that D’Orazio tried to run him over or
otherwise used excessive force in apprehending Taylor.
16
H. Officer Bennett
Finally, Wright argued that “the suspect who fled the Jeep was merely
described to Officer Bennett as a black male adult, and Officer Bennett
dishonestly wrote [in his report] that he was informed that the suspect was
light-skinned and wore dark clothes because that was consistent with the
way Christopher Bradford looked when he stopped him.” Bennett’s report
stated he was advised of a fleeing suspect wearing dark clothing and
“described as being a light skinned, black, male adult.” Several hours later,
Bennett observed Bradford, who matched this description, walking on the
side of the street. Bennett detained Bradford and asked for his name.
Bradford responded with a fake name and became defensive when he was
asked to provide his middle name. After Bradford’s identity was confirmed,
Bennett placed him under arrest for false identification to a police officer.
The trial court found no plausible scenario that Bennett falsified
anything in his report. The trial court stated, “whether you describe
somebody as a light-skinned African American wearing dark clothes or a
Black male adult, I’m not seeing that as a rising to some level of misconduct.”
We find no abuse of discretion. Aside from Bennett’s police report, there is no
evidence in the record indicating precisely who dispatched Bennett or what
phrase that individual used to describe the fleeing suspect, and Wright’s
suggestion it was “black male adult” is speculation. Nor does the description
Bennett’s report states he was given conflict with references in other reports
that some of the suspects were adult African-American men. It is plain from
the police reports in this case that there was ongoing communication between
the officers who responded to the scene of the crime and interviewed the
victims and those who were dispatched to other areas seeking to apprehend
the suspects.
17
Moreover, Justin, who was interviewed by Officer Byrnes at his
mother’s home while these events were ongoing, described one of the suspects
as “a lighter skinned black male adult” and a second suspect as “a Hispanic
or dark skinned white male adult” to Byrnes. Wright was later identified as
the first suspect and Bradford as the second suspect. Thus, Wright’s
assertion that none of the reports described the fleeing suspect as “anything
but just an African American male” is belied by Byrnes’s police report.
Finally, Bradford was seen walking on the side of the road at 5:30 a.m.
wearing dark clothing, which matched the description Bennett’s report stated
he was given. This provided Bennett reasonable grounds to detain Bradford
for questioning. (See People v. Souza (1994) 9 Cal.4th 224, 241 [“The time of
night is another pertinent factor in assessing the validity of a detention”].)
Bennett thus had no reason or motivation, based on the record, to bolster the
validity of his detention of Bradford. In light of this record, Wright failed to
allege a plausible scenario of Bennett fabricating information contained in his
report.
In sum, we do not find that the trial court abused its discretion in
denying the Pitchess motion because Wright failed to meet his burden to
present a plausible factual scenario to support any claimed police misconduct.
IV.
Resentencing Following Senate Bill No. 567
In his supplemental brief, Wright argues he is entitled to resentencing
based on a recent amendment to section 1170, subdivision (b) which became
effective on January 1, 2022.9 We agree.
The People agree that remand for resentencing is warranted based on
9
amended section 1170, subdivision (b).
18
Section 1170, subdivision (b)(6) currently provides: “[U]nless the court
finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the
interests of justice, the court shall order imposition of the lower term if any of
the following was a contributing factor in the commission of the offense:
[¶] . . . [¶] (B) The person is a youth, or was a youth as defined under
subdivision (b) of Section 1016.7 at the time of the commission of the offense.”
(§ 1170, subd. (b)(6)(B).) A youth is defined as “any person under 26 years of
age on the date the offense was committed.” (§ 1016.7, subd. (b).)
Wright was sentenced to a midterm of six years for first degree robbery
(count four). He was 24 years old at the time of the robbery and his judgment
was not yet final at the time the amendment took effect. Therefore, the
ameliorative change in section 1170, subdivision (b), applies retroactively to
him. (See In re Estrada (1965) 63 Cal.2d, 740, 746.)
DISPOSITION
This matter is remanded for the limited purpose of resentencing under
section 1170, subdivision (b)(6). In all other respects, the judgment is
affirmed.
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STEWART, P.J.
We concur.
RICHMAN, J.
MILLER, J.
People v. Wright (A160784)
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