Dickerson
Filed 6/24/13 P. v. Dickerson CA5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. TYRELL D. DICKERSON, Defendant and Appellant. | F063809 (Super. Ct. No. BF137473B) |
APPEAL
from a judgment of the Superior Court
of
Kenneth C. Twisselman II, Judges.
Julia J.
Spikes, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On appeal, defendant Tyrell D. Dickerson asks this
court to review the material disclosed at the in
Next, defendant contends the evidence is insufficient to support his
conviction for burglary. Additionally,
defendant maintains his due process rights
were violated when the trial court instructed the jury with CALJIC
No. 2.15. Lastly, defendant asserts
that the October 1, 2011, amendments to Penal Code
judgment in its entirety.
PROCEDURAL HISTORY
By amended
information, defendant and his codefendant Jovon Jackson were charged with
burglary (§ 460, subd. (a); count 1) and receiving stolen property
(§ 496, subd. (a); count 2). Each
count further alleged defendant had a prior strike conviction within the
meaning of section 667, subdivisions (c) through (j), and he had served a prior
prison term within the meaning of section 667.5. The burglary count also alleged defendant had
suffered a prior serious felony conviction within the meaning of section 667,
subdivision (a). Defendant subsequently
pled not guilty to all counts and denied all allegations.
On August 8, 2011, defendant filed a
Pitchess motion. The motion was opposed by the City of Bakersfield
and Officer Peter Beagley. On September 2, 2011, the trial
court heard and granted defendant’s motion.
Following proceedings in camera, it ordered certain information be
disclosed to defense counsel.
Jury trial
commenced September 26, 2011. On September 28,
2011, the jury found defendant guilty of felony burglary and the
court dismissed count 2 on its own motion as a lesser included offense. That same date, following a court trial, the
further allegations were found true.
Thereafter,
on October 27, 2011,
defendant was sentenced to a total of 13 years in state prison.
FACTS
On the
evening of July 1, 2011,
at about 7:15 p.m., Michael George
and his girlfriend Katy Munoz left their residence to have dinner at a local
restaurant. When they left the home,
both the front and the sliding glass doors were locked.
Shortly
after returning home between 9:45 and
10:00 p.m., the couple realized
certain belongings were missing and the home had been ransacked. A Samsung 50†plasma television, a PlayStation
3 video game console and various video games, two laptop computers in accessory
bags, a red duffel bag, and Munoz’s costume jewelry and jewelry box were
missing. Although the front door was
locked when they returned home, the couple noticed the sliding glass door was
slightly ajar.
Police
officers responded to the couple’s report of a break-in. They dusted for fingerprints and noted pry
marks on the front door. Officer Juan
Orozco testified that although the scene was processed for fingerprints, no usable
prints were obtained. While on scene,
Orozco was contacted by other officers who indicated the property taken from
the George/Munoz residence may have been recovered.
At about 9:00 p.m. that same evening, Officer Peter
Beagley and his partner conducted a traffic stop at Madison and Watts Avenues
in Bakersfield. This location was approximately eight to ten
miles from the victims’ residence, or 20 to 25 minutes’ driving time. When the officers stopped the vehicle in
which defendant was a passenger, several electronic items and accessories could
be seen in the vehicle’s backseat. None
of the items appeared to be brand new.
After a vehicle search, the officers located laptop computers, a
PlayStation 3 video game console, a red duffel bag containing a jewelry box,
and DVD’s and video games strewn about in the backseat. In the vehicle’s trunk was a large Samsung
flat-screen television. A second search
of the trunk revealed a screwdriver with a bent tip; it also appeared to
contain brown paint residue.
George and
Munoz subsequently identified the items found in that vehicle as the
possessions missing from their home.
They also testified they did not know defendant and that he did not have
permission to be in their home. All
items were returned that same evening.
The television was heavy; two persons were required to lift it.
For the
defense, criminalist Jeanne Spencer testified she examined the screwdriver for
trace evidence or evidence of a paint transfer to compare to samples provided
of the victims’ front door. None were
found on the screwdriver. On
cross-examination, she testified such a result did not mean the screwdriver
could not have been used in the crime.
Rather, it meant only that no trace evidence remained on the screwdriver
had it been used in the crime.
DISCUSSION
I. Review of Materials
Following Pitchess Motion
Defendant
asks this court to review the materials disclosed in camera in response to his
and that it is not clear the “court itself made the determination of what was
‘discoverable.’â€
We begin
with the well-settled standards for disclosure of confidential personnel
records pursuant to Pitchess, which
established that “a criminal defendant could ‘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 (
Evid. Code, §§ 1043–1045.)
“… To
initiate discovery, the defendant must file a motion supported by affidavits
showing ‘good cause for the discovery,’ first by demonstrating the materiality
of the information to the pending litigation, and second by ‘stating upon
reasonable belief’ that the police agency has the records or information at
issue. [Citation.] This two-part showing of good cause is a ‘relatively
low threshold for discovery.’
[Citation.]
“If the
trial court finds good cause for the discovery, it reviews the pertinent
documents in chambers and discloses only that information falling within the
statutorily defined standards of relevance.
[Citations.] The trial court may
not disclose complaints more than five years old, the ‘conclusions of any
officer’ who investigates a citizen complaint of police misconduct, or facts
‘so remote as to make [their] disclosure of little or no practical benefit.’ [Citations.]
Typically, the trial court discloses only the names, addresses, and
telephone numbers of individuals who have witnessed, or have previously filed
complaints about, similar misconduct by the officer. [Citation.]
That practice ‘imposes a further safeguard to protect officer privacy
where the relevance of the information sought is minimal and the officer’s
privacy concerns are substantial.’
[Citation.]†(
“[T]he
standard governing discovery of personnel records is not whether the
information discovered is ultimately admissible at trial. ‘[Evidence Code s]ection 1043 has no such
precondition. Quite to the contrary, the
Legislature has determined that the moving party must show only that the personnel
records are material to the subject
matter in the pending litigation.’
[Citation.]†(
Cal.App.3d 25, 31–32.) When there is
“discoverable information in the officer’s file,†the defendant should be
“given an opportunity to determine if the information would have led to any
relevant, admissible evidence that he could have presented at trial. [Citation.]â€
(People v. Hustead (1999) 74
Cal.App.4th 410, 419.)
When the
court finds good cause and conducts an in camera review pursuant to
will permit future appellate review. (
1229-1230; People v. Guevara (2007)
148 Cal.App.4th 62, 69.) The court may
preserve the record either by copying the documents and placing them in a
confidential file, preparing a sealed list of the documents it reviewed, or
“simply state for the record what documents it examined†and seal that
transcript. (Mooc, supra, at p. 1229.)
The trial
court has broad discretion in ruling on both the good cause and disclosure
components of a Pitchess motion. Its ruling will not be disturbed absent an
abuse of that discretion. (
Cal.4th 1033, 1039; People v. Hughes
(2002) 27 Cal.4th 287, 330; Haggerty v.
Superior Court (2004) 117 Cal.App.4th 1079, 1086.)
On appeal,
we are required to review the “record of the documents examined by the trial
court†and to determine whether the trial court abused its discretion in
refusing to disclose the contents of the officer’s personnel records pursuant
to Pitchess. (People
v. Mooc, supra, 26 Cal.4th at p.
1229; see People v. Hughes,
appellate review†of the confidential files that were before the superior court
when it denied the Pitchess motion
for disclosure. (Mooc, supra, at p. 1228.)
If the
appellate court determines that the superior court abused its discretion by
denying disclosure of confidential records it had reviewed, reversal is not
required unless the error was prejudicial under the standard of
836. (See People v. Gaines (2009) 46 Cal.4th 172, 182–183;
110.) The determination of whether the
court’s error was prejudicial “involves an assessment or weighing of the
persuasive value of the evidence that was presented and that which should have
been presented. [Citations.]†(Gaines,
supra, at p. 182.) There must be a reasonable probability of a
different outcome if the potential impeachment evidence had been
disclosed. (Ibid.)
Here,
defendant filed his motion on August 8, 2011, seeking personnel records
regarding Bakersfield police officer Peter Beagley. More particularly, defendant sought reports,
complaints or investigation documents pertaining to “[f]alsifying informationâ€
and “[d]ishonesty as [to] the reporting of investigations.†The City of Bakersfield and Officer Beagley
opposed the motion. On September 2,
2011, the trial court granted the motion and proceeded to hold an in
part: “Cause proceeds with in camera
hearing. [¶] The court makes the
following findings and/or orders: [¶] Court orders discoverable items, if
any, are to be disclosed and provided to the defense within ten days. Protective order granted.†(Some capitalization omitted.)
We have
examined Officer Beagley’s personnel records and all materials provided during
the in camera proceedings. The trial
court preserved the record in a sealed transcript by stating for the record the
documents it examined. (
Following its review, the trial court ordered the release of certain
relevant information to defense counsel, subject to a protective order. Otherwise, it determined that the materials
reviewed in camera were not discoverable.
Following our review, we conclude that the trial court did not abuse its
discretion.
II. Sufficiency of the Evidence
Defendant
contends the evidence was insufficient to support his conviction for
burglary. More specifically, he contends
there was insufficient evidence he had
conscious possession of the stolen property.
In
assessing a claim of insufficiency of the evidence, the reviewing court’s task
is to review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—evidence that is reasonable,
credible, and of solid value upon which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
The standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence.
It is the jury, not the appellate court, which must be convinced of a
defendant’s guilt beyond a reasonable doubt.
If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the
judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see also
317-320; People v. Johnson (1980) 26
Cal.3d 557, 578.)
In
reviewing a challenge to the sufficiency of the evidence, appellate courts do
not determine the facts. We examine the
record as a whole in the light most favorable to the judgment and presume the
existence of every fact the trier of fact could reasonably deduce from the
evidence in support of the judgment. (
1053, overruled on other grounds in People
v. Rundle (2008) 43 Cal.4th 76, 151.)
If the verdict is supported by substantial evidence, a reviewing court
must accord due deference to the trier of fact and not substitute its
evaluation of a witness’s credibility for that of the fact finder. (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Unless the testimony of a single witness is physically impossible or
inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
An
appellate court must accept logical inferences that the jury might have drawn
from circumstantial evidence. (
396.) Before the judgment of the trial
court can be set aside for insufficiency of the evidence, “it must clearly
appear that on no hypothesis whatever is there sufficient substantial evidence
to support the verdict of the jury.†(
423, 429; see People v. Conners
(2008) 168 Cal.App.4th 443, 453.)
Here,
defendant argues the evidence in support of his burglary conviction is
insufficient because the People failed to present any evidence that he
possessed the items, either actually or constructively. We disagree.
Defendant
relies upon People v. Zyduck (1969)
270 Cal.App.2d 334 in support of his argument.
Zyduck was the front seat passenger in a vehicle stopped on a highway in
a logging area. The court held that the
mere presence of a stolen chainsaw in the backseat did not support Zyduck’s
conviction of receiving stolen property.
That court held that “[d]ominion and control are essentials of
possession, and they cannot be inferred from mere presence or access. Something more must be shown to support
inferring of these elements. Of course,
the necessary additional circumstances may, in some fact contexts, be rather
slight. [Citations.]†(Id.
at p. 336.)
In this
case, unlike People v. Zyduck,
defendant was not convicted based upon his mere presence as a passenger in the
vehicle, nor on the basis that Jackson’s vehicle contained a heavy object. Rather, there exists other evidence to
support the inference of possession.
The
George/Munoz residence was burgled after 7:15 p.m. on July 1, 2011. Less than two hours later, and about 25
minutes driving time away, defendant was a passenger in a vehicle with Jackson,
the only other occupant. The vehicle had
been stopped by police and found to contain the victims’ possessions. One of those possessions—a 50-inch Samsung
plasma television—could not be carried by a single individual. The evidence adduced at trial revealed that
due to the bulk and weight of the television, two persons were needed to lift
and carry it. Here, the fact defendant
was in the presence of recently stolen property shortly after the burglary must
have occurred, coupled with the fact one of the stolen items could not be
lifted and carried by a single individual and there were only two occupants in
the vehicle, is the “something more†that supports an inference of
possession. The jury logically inferred
that defendant was aware the items in the backseat and trunk of Jackson’s car
were stolen. It is also logical to infer
from that same evidence that defendant burgled the victims’ home.
We disagree
with defendant that his case is similar to the facts of People v. Smith (1954) 128 Cal.App.2d 706. In Smith,
more than 24 hours following the burglary of a jewelry store in Oakland, the
defendant and two other men were playing pool at a pool hall in Merced. One of the other men left briefly and
returned with a brown paper bag. The
contents of the bag—watches and rings—were emptied onto a pool table and the other
two men asked patrons whether they were interested in purchasing the items. Smith was nearby, dancing to music from the
juke box. (Id. at p. 707.) After the
three men left the pool hall, they were pulled over by law enforcement. Questioned separately, all three denied ever
having seen the jewelry found in the vehicle.
(Id. at pp. 707-708.)
The
appellate court reversed Smith’s conviction for possession of stolen property,
finding the evidence of possession was sufficient as to the other two men, but
insufficient as to Smith. (
that he “was associating with someone who had possibly just burgled an
apartment,†and that while that association “may be a very suspicious
circumstance,†it is not evidence he possessed stolen property. As detailed above however, unlike
the jury’s finding that defendant possessed stolen property. Unlike Smith,
more than 24 hours and 130 miles had not passed between the time of the
burglary and the time in which Smith was found in the presence of the stolen
property. Rather, here, defendant was
found in Jackson’s vehicle within two hours of the burglary and only eight to
ten miles away from the scene of the burglary.
Additionally, there was evidence that one of the items taken during the
burglary could not be handled by a single individual. These facts distinguish this matter from
Moreover,
defendant argues, without any citation to legal authority, that because CALJIC
No. 2.15 “has a temporal component factored into it by virtue of using the
phrase ‘recently stolen,’†the “prosecutor cannot use that same circumstantial
evidence as corroborating evidence.†We
have not identified any authority in support of defendant’s assertion. We note, however, that “‘the attributes of
the possession—time, place, and manner—may furnish the additional quantum of
evidence’†needed to establish possession.
(People v. Reyes (1997) 52
Cal.App.4th 975, 985.) Here, the
attributes of possession—time (within two hours of the burglary), place (eight
to ten miles from burgled residence), and manner (item taken could not be
carried by single individual)—provided proper corroboration.
We conclude
this record contains additional facts beyond defendant’s mere presence as a
passenger in a vehicle. Those additional
facts gave rise to a logical inference that defendant had possession of the
stolen property and had committed the crime of burglary.
III. CALJIC No. 2.15
Defendant
maintains the trial court erred in instructing the jury with CALJIC
No. 2.15
title="">[3] because, as a
possessed stolen property. As we have
already determined there was sufficient evidence to establish that defendant
had possession of stolen property, we find no error.
The general
rule is that the trial court must instruct on the “principles of law relevant
to the issues raised by the evidence [citations] and has the correlative duty
‘to refrain from instructing on principles of law which not only are irrelevant
to the issues raised by the evidence but also have the effect of confusing the
jury or relieving it from making findings on relevant issues.’ [Citation.]â€
(People v. Saddler (1979) 24
Cal.3d 671, 681.) It is well settled
that a jury may infer guilt of a theft-related crime from the fact a defendant
is in possession of recently stolen property, when coupled with slight
corroboration by other inculpatory circumstances that tend to show guilt. (People
v. Barker (2001) 91 Cal.App.4th 1166, 1173.)
The
California Supreme Court has concluded CALJIC No. 2.15 may properly be
given regarding charges of robbery, burglary, and other theft-related offenses
in cases in which there is sufficient evidence to support findings the
defendants possessed recently stolen property.
(People v. Prieto (2003) 30
Cal.4th 226, 249 [“[w]e have approved the use of CALJIC No. 2.15 with
respect to theft offensesâ€]; People v.
Smithey (1999) 20 Cal.4th 936, 976–977; People
v. Holt (1997) 15 Cal.4th 619, 677.)
As
previously discussed, although defendant asserts he was merely a passenger in
the vehicle and thus could not be found to have possessed stolen property, we
have determined the evidence logically suggests otherwise.
In this
case, the trial court instructed on a principle of law relevant to an issue
raised—possession of recently stolen goods.
Here, over and above defendant’s proximity to the victims’ property at
the time of the stop, there was evidence in the form of time, place, and manner
that spoke to defendant’s opportunity to commit burglary and have knowing
possession of recently stolen goods. The
instruction was clearly relevant to the issues raised at trial. (People
v. Saddler, supra, 24 Cal.3d at
p. 681.)
Defendant
argues the jury may have been confused by the instructions given by the trial
court but fails to cite to the record to support this possibility. He claims “the jury might have assumed that
[his] mere presence in the vehicle with the stolen items constituted
possession†and that such a misconception was not remedied by the instructions
given. We cannot agree with defendant’s
assertion as it is based on rank speculation.
Defendant points to nothing in the record to support such an assumption.
In sum, the
trial court did not err by instructing the jury in the language of CALJIC
No. 2.15. The instruction explained
to the jury that it could not find defendant guilty of burglary unless it first
found that defendant “was in conscious possession of recently stolen propertyâ€
and then found additional corroborating evidence to infer guilt.
IV. Section 4019 Credits
Finally,
defendant contends he should be awarded additional presentence credits based
upon the amendments to section 4019 that became operative on October 1,
2011. He argues failure to award
retroactive credit constitutes a violation of equal protection principles. He further argues he should receive enhanced
credits for the actual time spent in custody after October 1, 2011,
claiming the statutory language is ambiguous.
This court has previously addressed, and rejected, the specific
arguments raised by defendant in our decision in People v. Ellis (2012) 207 Cal.App.4th 1546 (Ellis). We reject them again here. (See also People
v. Brown (2012) 54 Cal.4th 314; People
v. Kennedy (2012) 209 Cal.App.4th 385.)
Subdivision
(h) of section 4019 specifically states the increased conduct credit amendment
applies prospectively only. In Ellis, we concluded the intent of the
Legislature “was to have the enhanced rate apply only to those defendants
who committed their crimes on or after October 1, 2011. [Citation.]â€
(Ellis, supra, 207
Cal.App.4th at p. 1553.) It is
undisputed that defendant committed his crime prior to October 1, 2011,
or, on July 1, 2011.
“The
concept of equal protection recognizes that persons who are similarly situated
with respect to a law’s legitimate purposes must be treated equally. [Citation.]â€
(People v. Brown, supra,
54 Cal.4th at p. 328.) Reviewing
courts determine whether groups are “similarly situated†in the specific
context of the law being challenged, not whether the groups are “similarly
situated†in all respects. (Ellis, supra, 207 Cal.App.4th at p.
1551.)
In
California Supreme Court noted that the purpose of section 4019 is to authorize
incentives for good behavior.
name="_ftnref4" title="">[4] This goal is not served “‘by rewarding
prisoners who served time before the incentives took effect and thus could not
have modified their behavior in response.…’â€
(Ellis, supra, 207
Cal.App.4th at p. 1551, quoting People v.
Brown, supra, 54 Cal.4th at pp.
328–329.) Therefore, prisoners who
served time before and after amendments to section 4019 are not “similarly
situated†for equal protection purposes.
(Ellis, supra, at
p. 1551.) Because defendant fails to
show section 4019 treats “similarly situated†groups unequally, he asserts no
cognizable equal protection claim.
To the
degree defendant argues his right to
equal protection was violated by the denial of conduct credits for the
presentence time he served between October 1 and October 27, 2011,
the court in People v. Rajanayagam
(2012) 211 Cal.App.4th 42 rejected a similar claim. Although the Rajanayagam court found that defendants who served time in jail on
or after October 1, 2011, regardless of the date they committed their
offenses were indeed similarly situated for purposes of equal protection, it
nevertheless concluded there was no equal protection violation as there was a
rational basis for the legislative classification. (Id.
at pp. 53-56.) As the court explained,
the legislative purpose behind the amendment at issue is “‘to reduce recidivism
and improve public safety, while at the same time reducing corrections and
related criminal justice spending.’†(
question does bear a rational relationship to cost savings.†(Ibid.) Therefore, the defendant’s equal protection
rights were not violated. (
similarly situated with persons who do benefit from the legislation, we agree
with the court in Rajanayagam that
there is a rational basis for the classification. No equal protection violation occurred.
Likewise,
we reject defendant’s argument that he is entitled to enhanced conduct credits
for the period between October 1, 2011, and the date he was subsequently
sentenced on the ground the wording of the statute is ambiguous. As we explained in Ellis, the statutory language on this point is not ambiguous. (Ellis,
supra, 207 Cal.App.4th at pp.
1552-1553.) Thus, for the reasons stated
in Ellis, we reject defendant’s
claim.
The trial
court properly awarded defendant a total of 58 days of custody credit and 119
days of actual custody credit, for a total of 177 days.
DISPOSITION
The
judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:
________________________________
KANE, Acting P.J.
________________________________
FRANSON, J.
name="_ftn1" title="">[1]
Cal.3d 531 (Pitchess).
name="_ftn2" title="">[2]All
further statutory references are to the Penal Code unless otherwise indicated.
