People v. Hughley CA2/8 ( 2020 )

Filed 12/14/20 P. v. Hughley CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B298565
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. MA072407)
v.
RICHARD WAYNE
HUGHLEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daviann Mitchell, Judge. Affirmed.
James M. Crawford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Richard Hughley was convicted of battery on a nonconfined
person by a prisoner (Pen. Code,1 § 4501.5). On appeal, he asks
us to review independently the personnel records of law
enforcement officers involved in the case to determine whether
any more records should have been turned over to him in
discovery. He also argues (1) the court erroneously denied his
request for a continuance; (2) the prosecutor committed
misconduct; (3) the court failed to give necessary jury
instructions; and (4) the court should have granted his motion for
juror identification information. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Hughley, a prison inmate, was charged with battery on a
nonconfined person, correctional officer Fredy Ulloa. Before trial,
Hughley moved for discovery of personnel records of six
correctional officers under Pitchess v. Superior Court (1974)
11 Cal.3d 531 (Pitchess). The court conducted a lengthy in
camera hearing with two custodians of records and ultimately
ordered disclosure of records of three officers.
On the day before trial was to begin, Hughley moved for a
continuance on the ground his attorney Robert Nadler had been
in trial and needed more time to investigate potential witnesses.
On the morning of trial, Nadler told the court he needed a
continuance for an additional reason: He had just discovered the
inmates he had last ordered out of prison six months earlier for a
court appearance were not still in local custody. Nadler told the
court he did not know inmates were sent back to their prisons if
1 All undesignated statutory references are to the Penal
Code.
2
they did not have a future local court date; he thought once
inmates were ordered in, they remained in local custody
indefinitely. The court did not believe Nadler’s representation,
found Hughley had not exercised diligence to secure the
witnesses’ attendance by legal means, and denied the request for
a continuance because Hughley had not shown no good cause to
delay the trial.
Although the court denied the continuance, after Nadler
advised the court the three inmates had given “detailed written
statements” in which they said Hughley had been attacked and
assaulted by correctional officers after having done nothing
wrong, the court intervened to assist in securing the presence of
the inmate Nadler identified as most important to the defense.
The court ordered the Department of Corrections to transport the
inmate, Larry Ridge, to the courthouse the following day.
The next morning, however, Ridge refused to come to court.
At this point, Nadler admitted to the court he had never spoken
with Ridge and did not know if he was willing to testify. Nadler
also disclosed that the inmates’ previously described written
statements were actually “to whom it may concern” letters
provided by Hughley, and neither Nadler nor his investigator had
ever spoken with the inmates or confirmed the inmates wrote the
letters. The court said this development confirmed its prior
ruling denying the continuance and agreed with Nadler that his
next step was to see Ridge as soon as possible.
The People presented a series of correctional officer
witnesses who testified Hughley had resisted when Ulloa
attempted to handcuff him, striking Ulloa in the chest with his
elbow. The two men ended up in a punching brawl that ended
when other officers intervened. The prosecution, however,
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elected to rely only on the initial elbow to Ulloa’s chest as the
alleged battery.
Hughley did not present any evidence or witnesses. The
jury convicted Hughley as charged. After trial, the court denied
Hughley’s motion to unseal juror identification information.
Hughley was sentenced to the upper term of four years in prison,
doubled pursuant to the “Three Strikes” law (§§ 667, subds. (b)-
(j), 1170.12, subds. (a)-(d)). He appeals.2
DISCUSSION
I. Review of Personnel Records
Pursuant to Pitchess, Hughley requested discovery of the
personnel records of the correctional officer (Ulloa) who was the
alleged victim of the battery and five other correctional officers.
The court granted the motion as to all six officers with respect to
records relating to falsehoods, fabrication, false details,
dishonesty, perjury, and falsification of reports over the prior five
years; additionally, for two officers, the court granted the motion
as to incidents involving allegations of excessive force. Hughley
requests we review the record of the in camera proceedings for
error.
2 Separately, Hughley filed a petition for writ of habeas
corpus on December 16, 2019 (Case No. B303008). The petition
will be decided by separate order.
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We have reviewed the sealed record of the proceedings.
(People v. Mooc (2001) 26 Cal.4th 1216, 1229.) At the in camera
proceedings the custodians of records testified under oath they
had searched in all possible locations for documents responsive to
the court’s ruling. Except for one inadvertently produced
document that was on its face nonresponsive to the scope of the
court’s inquiry, the court ordered the disclosure of every matter
identified as potentially relevant to the Pitchess inquiry. We
conclude the trial court appropriately exercised its discretion
regarding the disclosure of material from the officers’ personnel
files. (Mooc, at p. 1229.)
II. Denial of Continuance
Hughley argues the trial court abused its discretion when it
denied his motion for a continuance. A party seeking a
continuance has the burden of showing he or she “exercised due
diligence in securing the witness’s presence, that the expected
testimony was material, noncumulative, and could be secured
within a reasonable period of time, and that the facts to which
the witness was expected to testify could not otherwise be
proven.” (People v. Mora and Rangel (2018) 5 Cal.5th 442, 509.)
Hughley failed to establish he had exercised due diligence in
securing the presence of his desired witnesses: Nadler failed to
subpoena his prospective witnesses or ensure they were ordered
out and remained in local custody. Moreover, Nadler had never
interviewed the prospective witnesses and therefore could not
establish the witnesses would provide material testimony. As
Hughley did not demonstrate good cause for the continuance, the
trial court did not abuse its discretion in denying his request.
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III. Alleged Prosecutorial Misconduct
The prosecutor asked three correctional officer witnesses a
series of questions about the consequences they would face if they
falsified their reports and whether they would lie to protect
another officer. Hughley argues the prosecutor committed
misconduct by asking these questions, which he describes as
impermissible vouching “insinuating the correctional officers
would not lie or they would face the threat of losing their careers
and benefits and likely even suffer imprisonment.” While the
parties disagree about whether Hughley preserved this claim for
appeal, we need not resolve that issue because the claim fails on
its merits.
Improper vouching occurs when a prosecutor “either
(1) suggests that evidence not available to the jury supports the
argument, or (2) invokes his or her personal prestige or depth of
experience, or the prestige or reputation of the office, in support
of the argument.” (People v. Anderson (2018) 5 Cal.5th 372, 415.)
Typical vouching claims focus on prosecutors’ closing arguments,
but here Hughley argues the act of asking questions designed to
elicit information about the negative consequences of
untruthfulness constituted vouching.
The prosecutor did not commit misconduct with this line of
questioning designed to elicit evidence to support the witnesses’
credibility. The prosecutor’s questions were straightforward
inquiries about what the officers stood to lose if they lied and
whether they would lie in reports or on the witness stand. The
existence or nonexistence of a bias, interest, or other motive is
relevant to the jury’s determination of the credibility of a witness.
(Evid. Code, § 780, subd. (f).) Asking these questions did not
amount to vouching. In fact, the questions were necessary to
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avoid vouching in closing argument. Unless evidence of the
negative consequences for lying is in the record, a prosecutor
improperly vouches for law enforcement witnesses by suggesting
officers were credible because they had so much to lose
professionally if they lied. (People v. Rodriguez (2020) 9 Cal.5th
474, 482–483 [“When a prosecutor argues beyond the record
about the career risks of untruthful testimony, the prosecutor
invites the jury to fill in gaps in the evidentiary record by
reference to the jury’s own surmise based on the special
reputation of law enforcement agencies and officers for veracity,
as well as suppositions about the special insight prosecutors may
have into law enforcement disciplinary procedures. The
prosecutor thus ‘invite[s] the jury to rely on the prestige of the
government and its agents rather than the jury’s own evaluation
of the evidence’ ”].) Here, the prosecutor’s questions properly
elicited the evidence necessary to support his closing argument.
Hughley has not demonstrated misconduct.
IV. Jury Instructions
Hughley contends the trial court had a sua sponte duty to
instruct the jury on the defense of accident and on the
prosecution’s burden to prove Ulloa was lawfully performing his
duties and did not use excessive force. The trial court must
instruct on general principles of law relevant to the issues raised
by the evidence and necessary for the jury’s understanding of the
case. (People v. Brooks (2017) 3 Cal.5th 1, 73.) This “duty to
instruct extends to defenses ‘if it appears . . . the defendant is
relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent
with the defendant’s theory of the case.’ ” (Ibid.)
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A. Instruction on Defense of Accident
Although he did not request such an instruction in the trial
court, Hughley argues the trial court had a sua sponte duty to
instruct on accident because his defense theory at trial was the
elbowing conduct was accidental and did not constitute a battery.
The jury was properly instructed on the requirement that a
touching be willful in order to constitute a battery: CALCRIM
No. 2723, given at trial, informed the jury that to find Hughley
guilty of battery on a nonconfined person, the People had to prove
he “willfully touched” Ulloa. It further advised the jury a person
commits an act willfully “when he or she does it willingly or on
purpose.” Had the jury believed Hughley touched Ulloa
inadvertently or by accident, then, applying CALCRIM No. 2723,
it would have found the touching not to have been willful and
would have acquitted him of the charged offense. Because this
point of law was addressed by the instructions given to the jury,
the trial court had no sua sponte obligation to further instruct on
accident in the absence of a request from counsel. A trial court
“has no sua sponte duty to revise or improve upon an accurate
statement of law without a request from counsel [citation], and
failure to request clarification of an otherwise correct instruction
forfeits the claim of error for purposes of appeal.” (People v. Lee
(2011) 51 Cal.4th 620, 638.)
Hughley contends if the court had no sua sponte obligation
to instruct the jury on accident, then his trial counsel’s failure to
request an instruction on accident constituted ineffective
assistance of counsel within the meaning of Strickland v.
Washington (1984) 466 U.S. 668. To establish ineffective
assistance of counsel, Hughley must demonstrate “the defendant
must first show counsel’s performance was deficient, in that it fell
8
below an objective standard of reasonableness under prevailing
professional norms. Second, the defendant must show resulting
prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have
been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009
(Mai).) A conviction may be reversed on direct appeal for
ineffective assistance only if the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or
omission, counsel was asked for a reason and failed to provide
one, or there simply could be no satisfactory explanation. (Ibid.)
Here, the record does not affirmatively disclose defense
counsel lacked a rational purpose for failing to request an
instruction on the defense of accident. And counsel was not
asked to explain his decision. Counsel could reasonably have
concluded there was no need to request a pinpoint instruction on
accident because the instructions as given allowed him to rebut
the element of willfulness without directly contradicting the
primary defense argument that Hughley had not elbowed Ulloa
at all. Because the record does not demonstrate the absence of
any rational tactical purpose for the failure to request an
instruction on accident, Hughley’s claim must be denied on direct
appeal. (Mai, supra, 57 Cal.4th at p. 1009.)
Moreover, even if counsel’s failure to request the
instruction constituted representation falling below an objective
standard of reasonableness for professional representation, it also
cannot be determined on this record whether the result would
have been more favorable to Hughley if counsel had asked for a
limiting instruction. Proof of these matters requires a showing
beyond the scope of the record on appeal. For this reason, the
California Supreme Court has held claims of ineffective
9
assistance of counsel based on counsel’s alleged failure to act in a
particular manner should be raised in habeas corpus proceedings.
(People v. Mickel (2016) 2 Cal.5th 181, 198; People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266–267 [a claim of ineffective
assistance of counsel relating to why counsel acted or failed to act
in a specific manner “is more appropriately decided in a habeas
corpus proceeding”].) As Hughley has neither established his
counsel’s performance fell below an objective standard of
reasonableness nor demonstrated a reasonable probability the
result would have been different had the instruction been
requested and given, we decline to reverse his conviction on this
ground on direct appeal.
B. Instruction on Use of Force
Hughley argues the court should have instructed the jury
sua sponte with CALCRIM No. 2670. This instruction advises
the jury that the People have the burden of proving beyond a
reasonable doubt the correctional officer was lawfully performing
his or her duties, an officer is not lawfully performing his or her
duties if he or she uses excessive force, and a person may lawfully
use reasonable force to defend himself or herself if an officer uses
excessive force.
Because the officer’s lawful performance of his or her duties
is not an element of the crime charged here, the court did not err
when it did not instruct the jury with CALCRIM No. 2670. The
elements of battery on a nonconfined person are “(1) [t]he
defendant was confined in a state prison; (2) while confined, the
defendant willfully touched the victim in a harmful or offensive
manner; and (3) the victim was not confined in a state prison.”
(People v. Flores (2009) 176 Cal.App.4th 924, 930–931.) The
cases on which Hughley relies are inapposite because they
10
involve offenses in which an officer’s lawful performance of his or
her duties is an element of the crime. (See People v. White (1980)
101 Cal.App.3d 161; People v. Olguin (1981) 119 Cal.App.3d 39.)
To the extent Hughley claims this instruction should have
been given for the purpose of advising the jury of his right to
defend himself from excessive force, the court did not err. The
only act alleged to have constituted a battery was Hughley’s
initial action of striking Ulloa with his elbow. There was no
evidence to support an inference Ulloa used excessive or
unreasonable force on Hughley before Hughley elbowed him. On
this evidence, the court was not required to give this instruction.
V. Motion for Disclosure of Juror Information
Before sentencing, Hughley filed a motion to unseal juror
identification information. The motion was supported by defense
counsel’s declaration that during a hallway conversation between
counsel and jurors after the jurors had concluded their service,
“several jurors indicated that even if the touching between the
defendant’s elbow and the chest area of [O]fficer Ulloa was
accidental then that would still be enough for conviction.”
Hughley sought jurors’ contact information so his investigator
could interview them to determine whether they misunderstood
the law. The court denied the motions. Hughley asserts this was
error.
Following a verdict, a defendant may “petition the court for
access to personal juror identifying information within the court’s
records necessary for the defendant 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 petition
shall be supported by a declaration that includes facts sufficient
to establish good cause for the release of the juror’s personal
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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
requested information. (Code Civ. Proc., § 237, subd. (b).) To
demonstrate good cause, the party seeking disclosure must “ ‘set[]
forth a sufficient showing to support a reasonable belief that jury
misconduct occurred, that diligent efforts were made to contact
the jurors through other means, and that further investigation is
necessary to provide the court with adequate information to rule
on a motion for new trial.’ ” (People v. Carrasco (2008)
163 Cal.App.4th 978, 990.)
The trial court correctly concluded Hughley had not shown
sufficient cause under Code of Civil Procedure section 237 to
warrant a hearing. The only line of inquiry opened by Hughley’s
motion was whether any jurors misunderstood the law. Pursuit
of this topic with the jurors would require exploring the mental
processes and rationales which led them to the guilty verdict, an
investigation prohibited by Evidence Code section 1150. (People
v. Jones (1998) 17 Cal.4th 279, 316; Evid. Code, § 1150, subd. (a)
[“any otherwise admissible evidence may be received as to
statements made, or conduct, conditions, or events occurring,
either within or without the jury room, of such a character as is
likely to have influenced the verdict improperly. No evidence is
admissible to show the effect of such statement, conduct,
condition, or event upon a juror either in influencing him to
assent to or dissent from the verdict or concerning the mental
processes by which it was determined”]; In re Manriquez (2018)
5 Cal.5th 785, 799 [“ ‘Evidence of a juror’s mental process—how
the juror reached a particular verdict, the effect of evidence or
argument on the juror’s decisionmaking—is inadmissible’ ”].) As
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the evidence Hughley intended to develop through interviewing
jurors would have been inadmissible under Evidence Code
section 1150, Hughley did not make a prima facie showing of
good cause for a hearing on disclosure of jurors’ identifying
information. (Jones, at pp. 316–317 [no abuse of discretion to
deny motion for juror information where only avenue of inquiry
concerning juror misconduct is barred by Evid. Code, § 1150];
People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322 [no showing of
good cause to justify a hearing on release of juror information
where, although jury was hung at one point, decision was
ultimately reached and the only evidence of misconduct was a
comment by one juror before the verdict that the jury was hung
and a single juror’s question to district attorney asking if that
was all the evidence he had].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J. WILEY, J.
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