P. v. Garcia
Filed 5/15/13 P. v. Garcia CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
ALEXIS GARCIA,
Defendant and Appellant.
B237920
(Los Angeles
County
Super. Ct.
No. BA261764)
APPEAL from
an order of the Superior Court
of
County. Robert J.
Perry, Judge. Affirmed.
Corona
& Peabody and Jennifer Peabody
for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant General, Lance E.
Winters, Assistant Attorney General, Eric E. Reynolds and Ana R. Duarte, Deputy
Attorneys General, for Plaintiff and Respondent.
___________________________________
>
Defendant
Alexis Garcia was retried for the murder
of Ricardo Castro (Pen. Code, § 187, subd. (a))
by a vote of six to six. During his
second trial, the jury found defendant guilty of murder during the commission
of which he personally and intentionally discharged a firearm, causing great
bodily injury and/or death (id., §
12022.53, subd. (d)). The jury further
found that he committed the murder for the benefit of a criminal street gang (
to life.
Defendant
appealed, contending among other things that he was denied access to important
exculpatory evidence when the trial court denied his Pitchess
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insufficient to establish his guilt beyond a reasonable doubt because there
were numerous inconsistencies between the principal eyewitnesses’ trial
testimony, preliminary hearing testimony and pretrial statements. We concluded the jury was entitled to credit
the eyewitnesses’ identification of defendant as the shooter despite the
inconsistencies in their statements but the trial court erred in denying his
remanded the matter to the trial court for the limited purpose of conducting an
in camera inspection of police personnel records and, if the files contained
discoverable information, affording defendant an opportunity to establish that
he was prejudiced by the denial of his motion.
(People v. Garcia (Sept. 15, 2008, B197695) [nonpub.
opn.].)
On remand, the trial court examined
the police records in camera, concluded several complaints found therein
against one of the investigating detectives were discoverable, and disclosed
the information to defendant. Defendant
then moved for new trial based on the newly discovered evidence, contending the
complaints against the detective could have been used at trial to impeach his
testimony and cast doubt on identifications made by the two eyewitnesses, which
would have resulted in a different verdict.
The trial court denied the motion and reinstated the judgment.
We conclude the trial court
properly denied defendant’s motion for new trial, and therefore affirm.
BACKGROUND
We draw the operative facts from
our prior opinion. (People v. Garcia, supra,
B197695.) On the evening of March 5,
2004, Julieta Flores and her friend Maria Figueroa met Ricardo Castro, also
known as Solo, at Main and Vernon Streets in Los Angeles. The group then proceeded to a liquor store at
Wall and Vernon. A green Chevrolet
Suburban was parked in front of the store.
As she approached the store, Flores saw a man, later identified as Jose
Rodriguez, walking out of the liquor store with a case of beer. Figueroa asked the man if she could have a
beer; he said no. A second man, whom
Flores identified as defendant, then exited the liquor store behind the man
with the beer. Defendant, whose “whole
face†Flores could see, appeared surprised to see Castro and “went straight to
[Castro’s] face.†The two men appeared
to be talking, but Flores could not understand what was being said. The confrontation between defendant and
Castro lasted 15 seconds, after which defendant pulled a gun from his waistband
and shot Castro.
Flores heard four shots. After the last shot, Castro grabbed his chest
and walked into the store. Flores went
outside to call for an ambulance and saw the green Suburban driving away. Castro was taken to the hospital, where he
died from his injuries. Unbeknownst to
Flores, Castro was a member of the Playboys gang. During a car wash held in his honor days
after the shooting, Flores saw a picture of him in which his gang tattoos were
visible.
Flores spoke with police after the
shooting. She described the shooter as a
20- or 21-year-old Hispanic man, 5 feet 8 inches to 5 feet 10 inches tall,
weighing 160 to 170 pounds and wearing a blue sweater with hood and dark
jeans. Flores described the man carrying
the beer as having a mustache, goatee and a “chunky†build. He was wearing a baseball hat with a white
T-shirt.
Three days after the shooting, on
March 8, 2004, Los Angeles Police Detective Richard Arciniega interviewed
Flores at her home. Flores described the
shooter this time as a Hispanic male, 5 feet 8 inches or 5 feet 9 inches tall,
with a medium build and a light complexion.
His gun was a semi-automatic handgun.
Flores also described the man carrying the beer as Hispanic, 5 feet 7
inches to 5 feet 8 inches tall, with a “chunky†build, light complexion, a
mustache and goatee. Flores did not
mention seeing a green Suburban leaving the scene.
According to Flores, she described
the shooter to Detective Arciniega as a Hispanic man, 5 feet 8 inches to 5 feet
10 inches tall, with a light complexion and medium build. She estimated the shooter’s age at 20 or 21
years, his weight as 160 to 170 pounds, and described his gun as black. Flores described the man carrying the beer as
having a “chunky†build, a light complexion, a mustache and goatee. He was 5 feet 7 or 8 inches tall and wore a
baseball cap and a white shirt.
Also on March 8, 2004, Detective
Arciniega went to Figueroa’s home and discussed the incident with her. Figueroa stated she had spoken to the man
carrying the beer. It was the other man
who confronted Castro. Figueroa
mentioned that she had been at a car wash the previous day and heard people say
that members of 41st Street gang were responsible for the shooting. Based on what Figueroa overheard at the car
wash, Detective Arciniega arranged for an array of photographs of members of
the 41st Street gang to be compiled.
Detectives also interviewed Eduardo
Cabrera, who was working in the liquor store on the night Castro was shot. According to Cabrera, the people who bought
beer were 41st Street gang members and had been in the store previously. Cabrera viewed a photographic array comprised
of 16 pictures and identified the man in photograph 1 as the person who
purchased the beer and the man in photograph 16 as the person who accompanied
the man with the beer. Cabrera also
stated that the individual in photograph 16 had been wearing a hood and a
sweatshirt.
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The next day, March 9, 2004,
Figueroa was interviewed further at the police station. After viewing the photograph array, Figueroa
identified the man in photograph 1 as the man who purchased the beer and
defendant, who was depicted in photograph 16, as the man who argued with
Castro. Figueroa reviewed her statement
and signed it.
Rodriguez was the man in photograph
1. According to Detective Arciniega,
Rodriguez was about 5 feet 6 inches tall and had a “stocky, chunky†build. At the time of the shooting, Rodriguez was 24
or 25 years old.
Also on March 9, Flores was brought
to the police station and interviewed.
She too selected the man in photograph 1 as the one who bought beer and
identified defendant, pictured in photograph 16, as the man who shot
Castro. Flores also reviewed her
statement and signed it. At trial, both
Figueroa and Flores identified defendant as the man who shot Castro.
In an interview held on March 9,
Cabrera again identified the person in photograph 1 as the man who purchased
the beer. With regard to the man in
photograph 16, Cabrera said he had been “wearing a hood and sweatshirt and was
with the guy who bought beer.†Cabrera
described Castro as a regular customer and a young gang member. Cabrera had
seen defendant and Rodriguez together in the past.
According to Los Angeles Police
Officer Jose Calzadillas, a gang expert, the 41st Street gang and the Playboys
gang were rivals with “a lot of bad blood†between them. Officer Calzadillas opined that the shooting
was committed for the benefit of the 41st Street gang. The liquor store at which the shooting
occurred was “right on the border†between Playboys and 41st Street territory,
and each gang considered the liquor store to be part of its territory. Defendant is an admitted member of the 41st
Street gang and displays 41st Street gang tattoos. The presence of a rival gang member in gang
territory would be considered a challenge to the gang.
Officer Calzadillas viewed the
photographic array shown to the witnesses.
The officer recognized Rodriguez, the man depicted in photograph 1, as
“Thumper.†This individual had several
large tattoos signifying his membership in the 41st Street gang.
Defendant was arrested on June 24,
2005. At the time, he was in possession
of glasses but was not wearing them.
Defendant also was in possession of an identification card and check-cashing
card, bearing his picture, but issued in the name of Antonio Alvarez. In neither picture was defendant wearing
glasses. Arresting Officer Todd Bracht,
who was familiar with defendant as a result of prior contacts, observed that
defendant was 20 or 30 pounds heavier than he had been in the past.
At trial, Marta Martinez,
defendant’s mother, testified defendant has worn glasses since 1994 or
1995. Defendant’s supervisor testified
that defendant always wore glasses at work.
No eyewitness had described defendant as wearing glasses.
Prior to his retrial, defendant
filed a Pitchess motion, seeking to
examine the personnel records of Detective Arciniega for accusations of
misconduct, arguing the eyewitnesses identifications in the first trial had
been “tainted by collusion with other witnesses and by Police suggestion and
intimidation.†Defendant further argued
there was “evidence that officers had manipulated witness statements and
withheld evidence from the defense.†The
trial court denied the motion, but we reversed, concluding defendant had made a
sufficient showing of good cause to warrant the trial court’s in camera review
of Detective Arciniega’s police personnel records. We remanded with directions for the trial
court to conduct an in camera hearing and disclose to defendant any
discoverable information. We also
instructed the trial court to afford defendant an opportunity to establish that
he was prejudiced by any denial of discoverable information and, if he
succeeded in doing so, order a new trial.
The court reviewed Detective
Arciniega’s personnel records on January 9, 2009. It found eight pertinent complaints had been
made against him between 1997 and 2006 for filing false police reports, giving
false testimony, tampering with photographic identification lineups, and
coercing confessions. Of particular note
was a complaint by the wife of one Marcelos
Moore, who alleged that in 1997 Arciniega showed several mug books to
witnesses to a home invasion robbery.
The witnesses identified an individual other than Moore as the
perpetrator, but Arciniega failed to include those identifications in his
police reports. Moore had raised the
issue at trial and cross-examined Arciniega about the mug photos, but was
nevertheless convicted of robbery and sentenced to eight years in prison.
On January 9, 2009, the trial court
ordered the Los Angeles Police Department’s custodian of records to disclose to
defendant the eight pertinent complaints and the contact information of the
complainants. On February 2009, the department
produced the information as ordered.
A year and a half later, On July
30, 2010, defendant’s counsel filed a motion for new trial. Counsel argued that in several cases
Detective Arciniega was alleged to have fabricated false police reports, given
false testimony, and withheld exculpatory portions of witness interviews. For example, in one instance documented in an
internal report created by the Los Angeles Police Department, Arciniega,
“[a]ccording [to] the witnesses,†fabricated a false confession. In another instance, which resulted in a
civil lawsuit, Arciniega “allegedly used excessive force against [a suspect]
and then participated in a cover-up.â€
Defendant’s counsel also cited a criminal trial where the defendant’s
counsel alleged Arciniega engaged in “‘“psychological intimidationâ€â€™â€ of the
defendant. In “another serious†but
otherwise unidentified criminal case, defendant’s counsel argued Arciniega
maintained selective recordings of interviews and lied to the defendant. Finally, defendant’s counsel argued Arciniega
gave false testimony in two more criminal cases. “Beyond the above,†counsel argued, “there
are complaints of police misconduct of dishonesty by Detective Arciniega [by]
several other witnesses,†all of whom counsel intended to call at the September
hearing on the motion for new trial.
Defendant argued he was prejudiced in the second trial because the
court’s denial of his Pitchess motion
rendered him unable to call these witnesses to impeach Arciniega’s testimony
and cast doubt on the eyewitness identifications.
In opposition to the motion for new
trial, the People argued none of defendant’s allegations of misconduct by
Arciniega was supported by evidence. (§
1181 [“When a motion for a new trial is made upon the ground of newly
discovered evidence, the defendant must produce at the hearing, in support
thereof, the affidavits of the witnesses by whom such evidence is expected to
be given, . . .â€].) Defendant had
produced no evidence of any kind, the People argued, merely allegations.
On the morning of October 28, 2010,
shortly before the hearing on defendant’s motion for new trial and more than a
year and a half after Arciniega’s records were produced, defendant filed a
reply to the People’s opposition and a declaration by Moore that was dated two
days prior. Defendant’s counsel argued
that in yet another criminal case, which counsel identified as “People v.
Miguel Chavez #BA263421,†the “defendant was acquitted after a tape was played
while Arciniega was on the stand which directly contradicted his assertion of a
Defendant’s admissions off-tape.â€
In his declaration, Moore stated he
had had two negative encounters with Detective Arciniega in 1997. In the first, Arciniega and other officers
physically assaulted Moore during an arrest and falsely reported that he had shot
at them. In the second, Arciniega showed
a robbery victim an array of photographs that contained Moore’s photo. The victim positively identified Moore as one
of the robbers. Moore admitted he had
participated in the robbery but argued the victim never saw his face because
before he entered the victim’s residence, his accomplice had ordered the victim
to lie “down on the ground with his face facing the floor.†It was therefore “impossible†for the victim
to have identified Moore “because he was never in a position to have seenâ€
him. Furthermore, after Arciniega
arrested Moore, he placed a bag of rock cocaine and a gun in his lap and
threatened to charge him with possession of the cocaine and the gun if Moore did
not implicate other accomplices in the robbery.
When Moore refused to implicate anyone, Arciniega removed the items and
booked him only on the robbery.
At the hearing on defendant’s
motion for new trial, his counsel argued that his personal experience with
Detective Arciniega, the number of complaints against the officer, and the
weakness in the case against defendant established prejudice.
The trial court disagreed. It found the number of complaints was not
dispositive and defendant offered little admissible evidence of wrongdoing by
Detective Arciniega, and that which was offered failed to establish that
defendant would have taken a different approach at trial or that the jury would
have reached a different verdict had the evidence been obtained earlier. This was so because at trial the defense
relied heavily on the theory that Flores and Figueroa had been coached, and
defense counsel ably and aggressively explored the issue in his
cross-examination of the two witnesses and Arciniega. The court observed that the jury discredited
the defense theory, and no reasonable probability existed that a different
result would have been reached had the jury been aware of Moore’s
complaint. It thus denied the motion.
DISCUSSION
“Evidence Code sections 1043
through 1045 codify Pitchess v. Superior
Court[, supra,] 11 Cal.3d
531. ‘The statutory scheme carefully
balances two directly conflicting interests:
the peace officer’s just claim to confidentiality, and the criminal
defendant’s equally compelling interest in all information pertinent to the
defense.’ [Citation.] The legislation achieves this balance
primarily through a procedure of in camera review, set forth in section 1045,
subdivision (b), whereby the trial court can determine whether a police
officer’s personnel files contain any material relevant to the defense, with
only a minimal breach in the confidentiality of that file.†(People
v. Jackson (1996) 13 Cal.4th 1164, 1220.)
Here,
defendant argued eyewitness identifications in the first trial were tainted by
police suggestion, intimidation, and manipulation, and requested discovery of
complaints of police misconduct, witness manipulation, and withheld
evidence. Defendant’s request was
denied, and he was subsequently convicted in a second trial.
We reversed the judgment of
conviction for the limited purpose of affording defendant an opportunity to
demonstrate he was prejudiced by denial of discovery or the prosecution’s
failure to disclose exculpatory material.
We instructed the trial court as follows: “The matter is remanded to the trial court
for the limited purpose of (1) conducting an in camera inspection of
Detective Arciniega’s and Detective Villa’s police personnel records and
ordering the disclosure of relevant information, if any, and (2) granting
defendant’s Brady request and giving
defendant an opportunity to establish prejudice resulting from the
prosecution’s withholding of any potentially exculpatory evidence. If the trial court concludes that the
detectives’ personnel files contain discoverable Pitchess information and defendant establishes that he was
prejudiced by the denial of its discovery or defendant establishes he was
prejudiced as a result of the prosecutions’ failure to disclose the
directed to order a new trial. If there
is no discoverable Pitchess
information in the detectives’ personnel files or if defendant is unable to
establish he was prejudiced at trial as a result of the improper denial of his
judgment and the judgment is affirmed.â€
(People v. Garcia,
Defendant requests that we
independently review the resulting in camera proceedings below to determine
whether the trial court properly exercised its discretion in ordering or
denying discovery. (People v. Mooc (2001) 26 Cal.4th 1216, 1228; People v. Wycoff (2008) 164 Cal.App.4th 410, 414-415.) We have done so, and find no abuse of
discretion. (People v. Mooc, supra, 26
Cal.4th at p. 1228.) On remand, only
complaints by persons who alleged coercive techniques in identification
procedures were relevant to defendant’s theory that the witness identifications
were unreliable. The trial court
nevertheless reviewed all complaints in Detective Arciniega’s personnel file
and found eight that were relevant.
Based on our review of the reporter’s sealed transcript of the
proceedings, this was proper.
The real issue is whether the
initial denial of discovery of the eight relevant complaints in Arciniega’s
file prejudiced defendant. We conclude
it did not.
“[A] defendant who has established that the
trial court erred in denying Pitchess
discovery must also demonstrate a reasonable probability of a different outcome
had the evidence been disclosed.†(
182.) One possible different outcome
would be a hung jury. (
491, 521.) To assess whether a different
outcome was reasonably probable the court must “‘“consider the non-disclosure
dynamically, taking into account the range of predictable impacts on trial
strategy.â€â€™ [Citation.]†(People
v. Gaines, at p. 184.) “[W]e must find both (1) a reasonable
possibility defense counsel would have presented the mitigating evidence had he
received the discovery he requested (otherwise the error would not have
affected the trial at all), and (2) a reasonable possibility the verdict would
have been different had defendant presented the mitigating evidence.†(People
v. Gonzalez (2006) 38 Cal.4th 932, 961.)
Here, defendant’s counsel was armed
with some dozen complaints and possible complaints against Arciniega, eight
from the Pitchess proceedings and
several more from counsel’s own experience or knowledge. Yet after approximately a year and a half
counsel was able to generate only one piece of evidence: the declaration of Moore, an admitted robber,
to the effect that a photographic identification of him in 1997—an accurate
identification—must have been fabricated because during the robbery in question
the victim was “down on the ground with his face facing the floor,†and could
not have seen him.
We will assume for the sake of
argument that it is reasonably possible the defense would have offered Moore’s
testimony at trial had it received Moore’s wife’s complaint against Detective
Arciniega in a timely fashion. This may
be a generous assumption, as it apparently took defense counsel more than a
year and a half after the Pitchess
hearing to obtain Moore’s declaration.
Even had Moore testified at trial, no reasonable probability exists that
the verdict would have been different.
The gist of Moore’s evidence would
have been that in 1997 Detective Arciniega caused a witness to falsely identify
him, implying Arciniega did the same here with Flores and Figueroa. Moore’s evidence would have been of
negligible weight. His only expressed
reason for thinking the 1997 identification was manipulated was not that he was
innocent but that the witness was face down throughout the subject robbery, and
therefore could not have got a good look at Moore’s face. The weakness and unreliability of such
testimony is patent. In any event, the
jury already possessed circumstantial evidence, albeit weak, that Flores and
Figueroa had been coached in their identifications: The identifications evolved over time. The jury also knew about defendant’s theory
that the discrepancies resulted from Arciniega’s coaching. The jury nevertheless believed Flores and
Figueroa accurately identified defendant as the person who shot Castro. Because Moore’s speculation regarding the
genesis of his own admittedly accurate identification 10 years before the trial
in this case would have added little to what the jury already knew about
Flores, Figueroa and Arciniega, we cannot conclude any reasonable probability exists
that it would have made a difference.
Accordingly, the trial court was
well within its discretion to find that defendant suffered no prejudice as a
result of having been denied Pitchess
discovery.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CHANEY,
J.
We concur:
MALLANO,
P. J.
ROTHSCHILD, J.
the Penal Code.
v. Superior Court (1974) 11 Cal.3d 531.
