P. v. Berry

Filed 1/2/08 P. v. Berry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County. Charles C. Lee, Judge. Affirmed.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Paul Berry was charged with one count of second degree burglary, four prison priors, and three prior robbery convictions that qualified as strikes under the Three Strikes law. A jury found him guilty of the burglary charge. At bifurcated proceedings, the prosecutor presented evidence of two prior convictions, which the trial court found to be true. At the sentencing hearing at the Peoples request, the court struck one of the two strikes. Appellant was sentenced to the upper term of three years, doubled to six years under the Three Strikes law.

Appellant filed a notice of appeal. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. Appellant was notified that he could file his own brief and did so. He contends: (1) He was denied a fair trial because defense counsel was not permitted to refresh a witnesss recollection with the witnesss statement in the police report. (2) The court erred in shackling him during the sentencing hearing. (3) The court erred in ruling that his prior out-of-state convictions qualified as strikes. (4) Imposition of the upper term violated his federal constitutional rights to proof beyond a reasonable doubt and to trial by jury. (5) His Fifth Amendment right to a fair trial was violated when, on the morning of trial, police officers found a saw in the backpack that had been taken from him when he was arrested.

After reviewing the record, we requested supplemental briefing on these questions: Was there prosecutorial misconduct, or were there any errors in the trial courts rulings, regarding the belated finding of the saw in the backpack? If so, was there prejudice?

Following review of all the briefing in this case, we find that no prejudicial error occurred. We therefore affirm appellants conviction.

FACTS

Around 11:00 p.m. on April 12, 2005, Andres Rubalcava, Jr., the manager of a Staples store in Burbank, heard someone running across the roof towards the next store, a check-cashing establishment called Cash Plus. Ten or 15 minutes later, he heard someone run back across the roof in the opposite direction.

Officer Brian Gordon arrived in front of the Cash Plus store at 11:05 p.m., because the burglar alarm had gone off there. The alarm was not a silent one. In the parking lot, Gordon saw a truck, later identified as appellants truck. Its lights were on and its engine was running. As it drove off, Gordon asked another police unit to stop it. He then spoke to Rubalcava and received information from the police departments air ship, indicating there was something suspicious on the roof.

The owner of the Cash Plus store arrived. Gordon climbed with him onto the stores roof via a ladder on the side of the building. They observed that somebody had sawed a 14- by 14-inch hole in the roof, large enough for a person to climb through. On top of the hole was a pile of plywood, drywall, insulation, and roofing paper. From the nature of the wood debris nearby, it appeared that the plywood had been recently cut by a hand saw.

Meanwhile, Officers Theresa Geier and Michael Reyes had stopped appellant in the truck. He was the only person in it. He had a Nevada drivers license. There were wood chips or shavings all over his clothing. He said that he lived in Las Vegas, and the wood chips came from his work at a machine shop.

Items in appellants truck included rope, a black knit cap, a backpack, a nylon stocking (sometimes used by burglars to disguise facial features), composite roofing material, gloves, wood chips, a flashlight, and an assortment of hand tools.

Inside of appellants room at a nearby hotel, the police found a receipt from a market next to the Cash Plus store. The receipt had the same date as the incident. There also was a computer printout that listed the addresses of about 10 check-cashing businesses. The Cash Plus stores address was at the top of the list.

During the trial, Officer Reyes and the investigating officer, Detective Wallace Schilling, described finding for the first time, just before the trial started, a saw at the bottom of the backpack.

DISCUSSION

1. Restriction on Cross-examination

In the supplemental brief filed by appellant in propria persona, appellant argues that the court denied him his Fifth Amendment right to a fair trial when it precluded defense counsel from refreshing Rubalcavas recollection by showing him his statement to the police in which he said he thought he heard more than one person run across the roof. We do not discuss the issue in detail because, assuming arguendo that any error occurred, there was no possible prejudice. Appellant was convicted because of a combination of circumstantial evidence, including his presence near the store when the burglar alarm went off, his driving away when the police arrived, the match between the wood chips on his clothes and the wood chips on the roof, the connections between the items found in his truck and the hole in the roof, and the suspicious items found in his motel room. Whether Rubalcava heard one person or multiple persons on the roof made no possible difference.

2. Shackling

Appellants supplemental brief further argues that the trial court erred in shackling him during the sentencing hearing.

Defense counsel objected to the shackling, as appellant had not been in handcuffs during the trial and had caused no problems. The bailiff told the judge he had been informed that appellant was very upset when he arrived that morning. The bailiff himself had observed that appellant was very upset. The bailiff also said that appellant had already been convicted, and there was no jury in the courtroom to see him, so it was the policy of the sheriffs department to keep him in handcuffs. Based on that explanation, the court denied the request to remove the handcuffs.

The decision whether to shackle a defendant is discretionary; a reviewing court will uphold the courts decision absent an abuse of discretion. (Tiffany A. v. Superior Court (2007) 150 Cal.App.4th 1344, 1354.) We find no abuse of discretion here, due to the information presented to the trial court.

3. The Prior Convictions

At a bifurcated court trial, the court found that appellant had been convicted of two robberies in Nevada, based on documentary evidence and testimony by a fingerprint expert. Appellants in propria persona briefing contends that the trial court erred and should not have found that those convictions qualified as strikes. We do not agree. Under People v. McGee (2006) 38 Cal.4th 682, 688 (McGee), a Nevada robbery is not a strike under California law, absent further proof, because there are differences in the states definitions of the crime that make it theoretically possible that a Nevada robbery conviction involved conduct that would not be a robbery under California law. McGee went on to uphold trial court findings that specific Nevada robbery convictions qualified as strikes in California, because the trial court had examined the record of the Nevada proceedings to verify the nature of the crimes.

Under McGee, it is appropriate for the trial court to examine court records pertaining to a defendants prior conviction to determine the nature or basis of the conviction. (McGee, supra, 38 Cal.4th at p. 709.) That is what the trial court did here. Therefore, appellants contention lacks merit.

4. Imposition of the Upper Term

The prosecutor asked the trial court to impose the upper term, but strike one of the strike convictions so that the case would be a two strikes case. The trial court followed that procedure. As a basis for the upper term, it stated: The factors in aggravation outweigh the factors in mitigation. The factors in aggravation include the manner in which the crime was carried out, indicated planning, sophistication, professionalism. The crime involved attempted taking of a large amount of money. The defendant was attempt[ing] to steal money from . . . a store whose only asset was cash. The defendant has previously engaged in a pattern of conduct of a violent nature which indicates a serious danger to society. He has numerous prior conviction[s], in fact, he was on parole when he committed this offense. He has served prior prison terms and, obviously, his performance on parole has been poor. There appear to be no factors in mitigation.

Some of the above aggravating factors appear to violate the requirements of Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]. We do not analyze the issue in greater detail for two reasons: (1) Appellant got the benefit of the prosecutors decision to proceed with the case as an upper term, two strikes case, instead of a three strikes case. (2) Under People v. Black (2007) 41 Cal.4th 799, 816, imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance . . . is justified based upon the defendants record of prior convictions. The fact of the prior convictions, one of the aggravating factors cited by the trial court, was sufficient to justify the upper term here.

5. The Belatedly Discovered Saw

This issue, raised by appellant in propria persona, caused us to request supplemental briefing from his counsel.

A. The Record

The trial began on April 24, 2006. Proceedings that morning included opening statements, Officer Gordons testimony, and direct examination from the owner of the Cash Plus store. During his testimony, Gordon said he had experience in construction work and thought the hole he saw on the roof was made by a hand saw.

At the start of the afternoon session, defense counsel told the court that when she had returned from lunch, the prosecutor had handed her a new police report. The report stated that Detective Schilling had found a saw in appellants backpack when he looked inside the backpack that morning. This was the first time defense counsel had heard about a saw. She complained that the incident had occurred a year earlier, and her investigation had been based on the police reports and photographs she had received through discovery. She thought the belated finding of the saw was fishy. She also wondered why she had not received the information until after lunch. She said that if she had previously known about the saw, she would have made a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and would have sought fingerprint analysis of the saw.

The prosecutor responded that she did not intend to introduce evidence about the saw. She wanted it removed from the backpack to avoid tainting the jury. She believed it had been in the backpack since appellants arrest, but had not been discovered because it was hidden underneath a bottom compartment. It was not mentioned in the inventory of items taken from appellants truck, and Detective Schilling had never seen it before that morning. Schillings report about the saw had been given to defense counsel as soon as it was written, after the inventory list had been checked to see if the saw was on it. Moreover, the backpack had always been available for inspection by the defense.

Defense counsel argued that the case had to be treated as if the saw was never found. She wanted Schilling to testify that he never found a saw, and she planned to argue to the jury that the absence of the saw was a fact that contradicted appellants guilt. The prosecutor and trial court rejected that proposed remedy. The court decided to proceed with cross-examination of the stores owner and testimony by Rubalcava, who heard the footsteps on the ceiling. Proceedings would then be recessed for the day, so defense counsel would have time to prepare for cross-examination of Schilling on the following day.

Later that afternoon, defense counsel made an oral motion under Pitchess and Brady v. Maryland (1963) 373 U.S. 83, 86-87. She asked for records of previous complaints about Shilling. The court told the prosecutor to contact the Burbank City Attorneys Office.

Defense counsel also asked that the prosecutor be sanctioned for not mentioning the saw at the start of that mornings proceedings. The prosecutor insisted that she had done nothing wrong. At 8:30 or 8:45 that morning, Schilling had shown her the saw at the bottom of the backpack. In proceedings that morning, she had mentioned that the saw was in the backpack. The court responded that it must have missed any reference to the saw during the mornings proceedings.^[1] The prosecutor insisted that Schillings report had been prepared, and she had given it to defense counsel as soon as she verified with Officer Reyes that he had not previously seen the saw.

The court denied the request for sanctions, but it wanted to see Schillings file.

The following day, a representative from the Burbank City Attorneys Office was in the courtroom. She said there had never been a complaint against Schilling during his 18-year career as a police officer. Her office later sent a fax that confirmed her representation.

The trial court denied a request by defense counsel to question Schilling at an Evidence Code section 402 hearing. The backpack, containing the saw, was handed to defense counsel for inspection. She again complained that the prosecutor should not have waited until after lunch the previous day to tell her about the saw.

Officer Reyes testified before the jury that, around lunchtime on the previous day, Detective Schilling had asked him to look inside the backpack. When he did so, he was surprised to see a hand saw under a padded pouch at the bottom of the backpack. He had looked through the backpack when the evidence was booked on the night of the incident, but had overlooked the saw. He did not put it into the backpack.

Schilling testified that he found the saw around 8:30 or 9:00 a.m. the previous day, when he and the prosecutor were examining the backpack. He denied putting the saw into the backpack. He checked the inventory list in the courtroom and verified that the saw was not mentioned. Either side could have inspected the backpack.

Later, over the prosecutors objection, the court decided to give a jury instruction on late discovery.^[2]

In final argument, defense counsel maintained that Schilling had planted the saw in the backpack, as it was totally unbelievable that the saw had not previously been found. The prosecutor argued that the officers told the truth about the saw and, in any event, there was abundant evidence of guilt without the saw.

Appellants counsel subsequently moved for a new trial based on prosecutorial misconduct through late discovery.

B. Analysis

 A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.  (People v. Hoyos (2007) 41 Cal.4th 872, 923, quoting People v. Morales (2001) 25 Cal.4th 34, 44.)

Certain facts stand out. Either side could have inspected the backpack prior to the trial. According to the officers, the saw had simply been overlooked until it was discovered in its hiding place in the backpack just before the trial started. The trial court proceeded very carefully by giving the instruction on late discovery and by seeking information about the possibility of prior complaints against Detective Schilling. Even so, we do not understand why the prosecutor did not immediately disclose the saws existence to defense counsel, instead of waiting until after lunch, following a morning that included opening statement and testimony from witnesses.

In any event, a finding of no prejudice is appropriate, as it is not reasonably probable that the result would have been different if the saw had been disclosed to the defense before the trial started. (See In re Brown (1998) 17 Cal.4th 873, 886.) Despite all the fuss about the saw, it was not necessary for the Peoples case. The evidence of appellants guilt was overwhelming, regardless of the saw. He was in the parking lot outside the check cashing store around 11:00 at night, when the surrounding stores were closed. He drove away when the police arrived, shortly after the burglar alarm went off. An employee next door had heard somebody walking across the roof. Over the check cashing store, on the roof, there was a covered-over hole, big enough for a man to pass through. There were wood chips near the hole, and appellant was covered with wood chips when his truck was stopped. The truck contained rope and an assortment of tools that would have enabled appellant to make the hole and climb into the store. There was a list of check cashing stores in his hotel room, beginning with this particular store. There also was a receipt, which showed appellant had been in the area earlier that day.

We therefore conclude that none of the events or rulings about the saw constituted a deprivation of appellants due process right to a fair trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J. RUBIN, J.

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Analysis and review provided by Chula Vista Property line Lawyers.

^[1] There was a reference to a saw that morning, but it was easy to miss. Just after a break, before the jury returned, the prosecutor said she had looked through the four boxes of evidence during the break. She intended to introduce into evidence all of the numerous items that were in those boxes. She invited defense counsel to look through the boxes. She verbally listed the items, such as the backpack, tools, an extension cord, a cell phone, clothes, and other items. She did mention a saw in the middle of that list. She did not say that, unlike the other items, the saw had first been discovered earlier that morning.

^[2] The instruction stated: Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by the law. [] Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [] The prosecution failed to disclose the hand saw within the legal time period. [] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.