P. v.
Pereyra
Filed 12/12/12 P. v. Pereyra CA4/2
TO BE PUBLISHED IN 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE
PEOPLE,
Plaintiff and Respondent,
v.
HENRY
GABRIEL PEREYRA,
Defendant and Appellant.
E053632
(Super.Ct.No. RIF147603)
O P I N I O N
APPEAL
from the Superior Court of
reversed in part with directions.
Stephen
M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Gil Gonzalez, Vincent P.
LaPietra, and Melissa Mandel, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
A
jury found defendant Henry Gabriel Pereyra guilty as charged of battery with
injury on a peace officer, forcibly or violently resisting a peace officer in
the performance of his duties, and unlawfully using a controlled substance,
methamphetamine. (Pen. Code,
§§ 243, subd. (c)(2), 69; Health & Saf. Code, § 11550, subd. (a);
counts 1, 2, & 3.) Defendant was
sentenced to three years on count 1, a consecutive eight-month term on count 2,
and 90 days in jail on count 3. The
crimes occurred on December 18,
2008, when defendant confronted several police officers who were responding
to a 911 call involving defendant’s brother.
In this appeal, defendant claims
his misdemeanor conviction in count 3 must be set aside. We agree and reverse defendant’s conviction
in count 3. No evidence supporting the
charge was adduced at the preliminary hearing on the felony charges in counts 1
and 2, and the information was erroneously amended to add the misdemeanor
charge before trial, over defense counsel’s objection. (Pen. Code, § 1009.)
Defendant also claims the court
abused its discretion in refusing to continue the trial for two weeks, after
the jury was selected, to allow him to locate a defense witness. We find no abuse of discretion or due process
violation in the denial of the continuance.
Next, defendant claims that the cumulative effect of multiple trial
errors deprived him of his fundamental right to a fair trial. We find no individual or cumulative trial
error. We also reject defendant’s claim
that his separate sentence on count 2 should have been stayed under section
654.
Lastly, defendant claims and the
People agree that defendant is entitled to monetary credit against his fines
for excess presentence custody credits.
(§ 2900.5.) We agree and
modify the judgment to deem defendant’s $380 in fines paid in full.
II. FACTUAL
BACKGROUND
A. Prosecution
Evidence
Around 10:00 p.m. on December 18, 2008, Riverside Police
Officer Daniel Floyd received a dispatch that Alvaro Pereyra, defendant’s
brother and a parolee at large, had assaulted his daughter in Riverside. Officer Floyd believed that defendant may
have been living at the home and knew that defendant had a history of violent
contacts with the police. A police
helicopter was called to watch the perimeter of the home because there was an
outstanding warrant for Alvaro’s arrest, and Officer Floyd believed that Alvaro
might attempt to escape.
As the police helicopter circled overhead, Officer Floyd
approached the home, along with his partner Officer Evan Wright and a third
officer, Camillo Bonome, Jr. Before
approaching the home, the officers met nearby and developed a plan of action
due to the potential for violence against themselves and other police
officers. They discussed a “team take
down†if it became necessary. When the
officers approached the home, the front door was open but a metal security door
was closed. Officer Bonome knocked on
the door, and defendant eventually answered.
As defendant approached the door, Officer Bonome said hello
and told defendant they needed to speak to Alvaro Pereyra. From behind the metal security door,
defendant said, “Fuck you. What the fuck
do you want?†and “My name is Henry Pereyra, motherfuckers, fuck you.â€
Defendant then swung the metal security door open with
enough force to cause it to hit the house and bounce back and stepped out onto
the porch area “in a fighting stance.â€
Defendant was highly agitated, breathing heavily, and his fists were
“balled up†in front of him.
Thinking he and the other officers were about to be
attacked, Officer Floyd grabbed defendant’s right arm and put him in a
wristlock, but defendant broke free of the officer’s grip. Officer Bonome got behind defendant and tried
to place defendant in a carotid restraint.
Defendant pushed Officer Bonome against the wall, and Officer Wright
began punching defendant in the face.
Defendant continued to resist the officers and fell to the ground with
Officers Wright and Bonome. On the
ground, defendant tried to head-butt Officer Bonome and bit the officer’s
finger. Officer Floyd then struck
defendant twice on his left leg with his baton and punched him in the
assisted the other officers in restraining defendant.
Defendant was handcuffed, placed in a police car, and
transported to the hospital for evaluation.
The officers denied hitting defendant with a scooter that was on the
porch or using a taser or pepper spray to restrain him.
Officer Bonome was treated at the hospital for a bite injury
to his finger. At the hospital,
defendant told Officer Bonome he had hepatitis C and hoped he had given it to
the officer.
Defendant had a blood-alcohol content of 0.13 percent. He also had methamphetamine and its
metabolite, amphetamine, in his system at concentrations indicating he had
recently used methamphetamine.
Toxicologist Ola Bawardi testified that methamphetamine is known to
cause aggressive and violent behavior.
In June 2008, Officers Floyd and Wright attempted to serve
defendant with a warrant at his home. When
they arrived at the home, a process server who had just attempted to serve
defendant with a domestic violence restraining order was “running down the
driveway†and told the officers that defendant was in the home and was armed
with a sword or a spear. Using tear gas,
a SWAT (Special Weapons and Tactics) team forced entry into the home and took
defendant into custody.
In January 2008, Officer Jeffrey Adcox assisted another
officer who had detained defendant in a traffic stop. Defendant was very irate and “almost out of
control†and was put in handcuffs. After
the detaining officer decided to release defendant and defendant’s handcuffs
were removed, defendant swung his elbow at the officer who had detained him. He also hit Officer Adcox twice in the chest
and once in the neck area with his elbow.
B. Defense
Evidence
The defense claimed the officers used
excessive force and defendant struck the officers in self-defense during the
December 18, 2008 incident. Defendant’s
niece and two nephews, Raquel, Angel, and Abel Pereyra, each testified that
they saw the officers pull defendant out of the doorway and beat him.
Defendant testified that the officers ripped open the door,
pulled him out of the house, and began beating and choking him after he came to
the door and identified himself.
Defendant denied biting one of the officers. Defendant admitted he “could have†been high
on methamphetamine on December 18, but he was not drunk.
Defendant also claimed that Officer Adcox beat him while he
was in handcuffs during the traffic stop incident in January 2008. In the June 2008 SWAT team incident, he did
not want to answer his door when the warrant was being served because he was
fearful of the police.
III. DISCUSSION
A. Defendant’s
Misdemeanor Conviction in Count 3 Must be Reversed
On the first day of trial in December 2009, the prosecutor
moved to amend the information to add count 3, the misdemeanor charge of
unlawfully using methamphetamine.
(Health & Saf. Code, § 11550, subd. (a).) Citing People
v. Thiecke (1985) 167 Cal.App.3d 1015, defense counsel objected to the
amendment on the ground that no evidence supporting the charge was adduced at
the preliminary hearing on the felony charges, counts 1 and 2. The prosecutor conceded that no evidence supporting
count 3 was adduced at the preliminary hearing, but argued that none was
necessary because count 3 was a misdemeanor.
Over defense counsel’s objection, the court granted the motion and
ordered the amended information filed.
Defendant claims his conviction in count 3 must be set aside
because no evidence supporting the charge was adduced at the
Felonies must be prosecuted by indictment or information,
based on a showing of probable cause at a preliminary hearing and an order
holding the defendant to answer the charge.
(Cal. Const., art. I, § 14; Pen. Code, §§ 737-739, 872;
750, 758 [explaining process of charging felonies by information].) Misdemeanors, by contrast, may be prosecuted
by written complaint without an order holding the defendant to answer based on
a showing of probable cause at a preliminary hearing. (Pen. Code, § 740; Medellin v. Superior Court (1985) 166 Cal.App.3d 290, 292.)
But when, as here, a misdemeanor charge is prosecuted by
information as part of a “felony case†(§ 691, subd. (f) [defining felony
case as including criminal action in which misdemeanor is charged in
conjunction with felony]), the misdemeanor charge must be supported by a
showing at a preliminary hearing of probable cause to believe the defendant is
guilty of the charge and an order holding the defendant to answer the charge
based on the probable cause showing. (
Cal.App.4th 943, 953-954; §§ 737-740, 872.) As the Griffith
court put it, “no crime, be it a felony
or a misdemeanor, can be included in an information unless it has been
supported by a showing of probable cause at the preliminary hearing. (§§ 737-740, 871-872.)†(Griffith
v. Superior Court, supra, at p. 954, italics added.)
In addition, section 1009 expressly prohibits amending an
information “to charge an offense not
shown by the evidence taken at the preliminary examination.†(Italics added.) Felonies and misdemeanors are “public
offenses.†(§§ 15, 16.) Thus, by necessary implication, section 1009
prohibits amending an information to add a felony or a misdemeanor charge
unless the charge is supported by a showing of probable cause at a preliminary
hearing. (§§ 738-739, 872,
1009.)
Relying on People v.
Pompa-Ortiz (1980) 27 Cal.3d 519, 529, the People argue that defendant is
entitled to a reversal of his misdemeanor conviction in count 3 only if he can
show “he was deprived of a fair trial or otherwise suffered prejudice†as a
result of there having been no evidence adduced to support the misdemeanor
charge at the preliminary hearing on the other felony charges. The People further argue that defendant has
not shown he was prejudiced by the amendment of the information to add count 3
immediately before trial. We disagree
that defendant was required to show he was prejudiced by the amendment in order
to be entitled to a reversal of the conviction.
The issue in Pompa-Ortiz
was whether the defendant’s rape conviction was reversible per se—that is,
without a showing of prejudice—given that the defendant was deprived of his
right to a public preliminary hearing
on the charge. (People v. Pompa-Ortiz, supra, 27 Cal.3d at pp. 522, 526.) The court concluded that the conviction was
not reversible per se, but was reversible only if the defendant could show the
denial of his right to a public preliminary hearing prejudiced him at his
subsequent trial. (Id. at pp. 529-530.)
because it did not involve a violation of section 1009, or the amendment of an
information to add a felony or misdemeanor charge not supported by evidence
taken at the preliminary hearing.
Indeed, “[i]t is as a matter of law irrelevant whether a defendant is
prejudiced by being prosecuted for an offense not shown by the evidence at the
preliminary hearing.†(
378.)
As aptly stated by the court in People v. Graff (2009) 170 Cal.App.4th 345, 364: “‘“‘Before any accused person can be called
upon to defend himself on any charge prosecuted by information, he is entitled
to preliminary examination upon said charge, and the judgment of the magistrate
before whom such examination is held as to whether the crime for which it is
sought to prosecute him has been committed, and whether there is sufficient
cause to believe him guilty thereof.
These proceedings are essential to confer jurisdiction upon the court
before whom he is placed on trial.’â€â€™â€
Within this context, “jurisdiction†“refer[s] to the situation where a
court that has jurisdiction over the subject matter and parties ‘has no
“jurisdiction†(or power) to act except in a particular manner, or to give
certain kinds of relief, or to act without the occurrence of certain procedural
prerequisites.’ [Citation.]†(People
v. Burnett, supra, 71 Cal.App.4th
at p. 179.) And while the court has
jurisdiction in the fundamental sense, the action by the court is viewed as
being in excess of its jurisdiction. (
As applied here, the trial court could not “act without the occurrence
of certain procedural prerequisitesâ€; that is, it could not entertain a
criminal charge not shown by the evidence at the preliminary hearing.
An act in excess of the court’s
jurisdiction is not void but is only voidable.
As such, the doctrine of waiver may apply. (People
v. Burnett, supra, 71 Cal.App.4th at p. 179.) Here, however, the defendant did not waive or
forfeit his claim that the information
was unlawfully amended to add count 3.
As indicated, defense counsel opposed the prosecutor’s motion to amend
the information to add count 3 on the ground that no evidence was adduced to
support the misdemeanor charge at the preliminary hearing. This preserved the claim for appeal. (Evid. Code, § 353.) Because the court acted in excess of its
jurisdiction in allowing the information to be amended to add count 3, the judgment
of conviction on count 3 must be reversed.
B. The
Court Properly Refused to Continue the Trial for Two Weeks, Following Jury
Selection, to Allow the Defense to Locate a Witness
In June 2009, six months before trial in
December 2009, a Pitchess
was granted, allowing the defense to discover the names, addresses, and
telephone numbers of any persons who had, within five years prior to December
18, 2008, filed complaints of excessive force against Officers Floyd, Wright,
and Bonome. The discovery led to the
identification of Ms. Solario as a defense witness. Ms. Solario was a defendant in a case
involving a claim of excessive force on the part of Officer Floyd, Wright, or
Bonome.
In the present case, Ms. Solario appeared in court in response
to a subpoena and was placed on call.
Then, after the jury selection but before any evidence was presented,
the defense was unable to locate her. At
that point, defense counsel told the court he believed Ms. Solario was a
material defense witness and asked the court to continue the trial for two
weeks so the defense could locate her.
Counsel also told the court that defendant was objecting to any further
continuances.
The court refused to grant the continuance, finding that Ms.
Solario was not necessarily a material witness for the defense, and there was
no showing of good cause for the continuance in part because defendant was
objecting to any further continuances.
Defendant now claims the court abused its discretion and violated his
Fifth, Sixth, and Fourteenth Amendment rights to present relevant exculpatory
evidence in refusing to continue the matter as his counsel requested. We find no abuse of discretion or
constitutional violation.
A continuance of a trial may be granted only upon a showing
of good cause (§ 1050, subd. (e)) and the party requesting the continuance
bears the burden of demonstrating good cause (Cal. Rules of Court, rule
4.113). When as here, a continuance is
sought to secure the attendance of a witness, the defendant must show: (1) he exercised due diligence to secure the
witness’s attendance; (2) the witness’s expected testimony was material, not
cumulative; (3) the testimony could be obtained within a reasonable time; and
(4) the facts to which the witness would testify could not otherwise be
proven. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
In determining whether to grant or deny a continuance, the
court “‘“must consider not only the benefit which the
moving party anticipates but also the likelihood that such benefit will result,
the burden on other witnesses, jurors and the court and, above all, whether
substantial justice will be accomplished or defeated by a granting of the
motion.â€â€™â€ (People v. Fudge (1994) 7 Cal.4th 1075, 1105.) The
determination whether to grant
or deny a continuance rests within the sound discretion of the court and is
reviewed for an abuse of discretion. (
687.) “‘[A]n order of denial is seldom
successfully attacked.’†(
1003.)
On rare occasions, the denial of a request for continuance
“may be so arbitrary as to deny due process.â€
(People v. Beames (2007) 40
Cal.4th 907, 921.) In determining
whether the denial of a continuance is so arbitrary as to deny due process, we
look to the particular circumstances of the case and the reasons presented for
the request. (People v. Frye (1998) 18 Cal.4th 894, 1013.)
Here there was no abuse of discretion or due process
violation in the court’s denial of the requested two-week continuance to locate
Ms. Solario. First, there was no showing
that Ms. Solario would likely be available to testify in two weeks’ time, or
any reasonable time. There was no
showing of her willingness to testify or that her appearance was likely to be
procured, despite her earlier appearance in response to the subpoena. Given this circumstance, the court reasonably
denied the continuance based on its inconvenience to the jurors and the court. (People
v. Fudge, supra, 7 Cal.4th at p. 1105.)
Moreover, Ms. Solario’s expected testimony—that one of the
three officers who restrained defendant used excessive force against her on
another occasion—did not amount to material, exculpatory evidence. Ms. Solario did not witness the incident in
which the officers allegedly used excessive force in restraining
defendant. Thus, her testimony could
have been easily impeached, and the court reasonably determined that the
defense was unlikely to benefit from her testimony. (
Cal.4th at p. 1105.) As the court put
it, “. . . I disagree necessarily that she may be material or could
be important to your defense . . . .â€
Thus here, the denial of the
continuance was not an abuse of discretion.
(People v. Livingston (1970) 4
Cal.App.3d 251, 255 [no abuse of discretion in refusing to continue trial when
no showing that witness’s testimony was material to the defense or that witness
could be located within a reasonable time].)
For the same reasons, the denial did not deprive defendant of his due process
right to present material, exculpatory evidence in his defense.
C.
Defendant next claims that
several cumulative errors undermined the fundamental fairness of his trial in
violation of his Fifth, Sixth, and Fourteenth Amendment rights, mandating
reversal of all of his convictions. In
addition to the denial of his request for a two-week trial continuance to
procure the testimony of Ms. Solario, defendant claims the prosecution
committed a Brady
Bonome’s belt recorder to the defense until the middle of trial. Defendant also claims the court erroneously
denied his request to recall Officer Bonome to impeach him with statements he
made, as recorded on the belt recorder, and erroneously denied his request to
instruct the jury pursuant to CALCRIM No. 306 that it could consider the late
disclosure of the belt recorder in weighing the officer’s testimony. We address these claims in turn and find no
individual or cumulative error.
1. Background
Officer Bonome testified on
December 9, 2009. He said he was wearing
a belt recorder, or audio recorder on his belt, when he and the other officers
restrained defendant, but he did not activate or turn on the belt recorder
until he was at the hospital. The
defense presented its case the next day, December 10. On the morning of December 11, the prosecutor
told the court and counsel that she had just received a copy of Officer
Bonome’s belt recording from the Riverside Police Department. The prosecutor had requested a copy of the
recording in January 2009, a month after the incident, but the police
department advised her there was no recording.
The prosecutor explained that, after Officer Bonome testified that he
turned on the recorder at the hospital, she again asked the police department
for a copy of the recording, obtained it, and promptly gave it to defense
counsel.
The audio recording showed
that the belt recorder was not initially activated at the hospital as Officer
Bonome testified, but was turned on as defendant was being placed in the patrol
car and before Officer Bonome and defendant were at the hospital. Defense counsel moved for a mistrial based on
the late discovery of the recording, and the court denied the motion. The court noted that although it was
“disturbed†by the time it took the police department to turn over the
recording to the district attorney’s office, the prosecutor promptly turned the
recording over to the defense as soon as it was available. The court also denied counsel’s request to
instruct the jury on the late discovery of the recording.
Alternatively, defense
counsel sought to recall Officer Bonome to impeach him with statements he made
after the incident, as recorded on the belt recorder. After a transcript of the recording was made,
the court denied counsel’s request. The
court ruled that the recording contained nothing inconsistent with Officer
Bonome’s or the other officers’ testimony, and the recording was not
exculpatory to the defense but was “collateral impeachment at best.â€
2. There
Was No Brady Violation
As indicated, defendant
claims the prosecution committed a Brady
violation in failing to discover and turn over Officer Bonome’s belt recorder
to the defense until the middle of trial.
We find no Brady violation,
because the belt recording was not material to the question of defendant’s
guilt or punishment.
Brady claims involve mixed questions of law and fact
and as such are subject to independent review on appeal. (People
v. Salazar (2005) 35 Cal.4th 1031, 1042 (Salazar).) The trial court’s
findings of fact, though not binding on appeal, “are entitled to great weight
when supported by substantial evidence.â€
(Ibid.)
Under Brady, “the suppression by the prosecution of evidence favorable to
an accused . . . violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.†(
encompasses impeachment and exculpatory evidence (United States v. Bagley (1985) 473 U.S. 667, 676), exists even in
the absence of a request by the defense (United
States v. Agurs (1976) 427 U.S. 97, 107), and extends to evidence known
only to police investigators and not to the prosecutor (Kyles v. Whitley (1995) 514 U.S. 419, 438). Thus, under Brady, a prosecutor “has a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case, including
the police.†(Kyles v. Whitley, supra, at p. 437; see also In re Brown (1998) 17 Cal.4th 873, 879.)
Evidence is favorable to the
defendant or material to his or her guilt or punishment “‘if there is a
reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’†(Kyles
v. Whitley, supra, 514 U.S. at pp. 433-434.) Thus, “strictly speaking, there is never a
real ‘Brady violation’ unless the nondisclosure was so serious that
there is a reasonable probability that the suppressed evidence would have
produced a different verdict. There are
three components of a true Brady violation: The evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.â€
(Strickler v. Greene (1999)
527 U.S. 263, 281-282.)
“Prejudice, in this context,
focuses on ‘the materiality of the evidence to the issue of guilt or
innocence.’ [Citations.] Materiality, in turn, requires more than a
showing that the suppressed evidence would have been admissible [citation],
that the absence of the suppressed evidence made conviction ‘more likely’
[citation], or that using the suppressed evidence to discredit a witness’s
testimony ‘might have changed the outcome of the trial’ (ibid.). A defendant instead ‘must show a “reasonable
probability of a different result.â€â€™
[Citation.]†(
1043.)
Here,
the prosecutor did not violate Brady
in failing to discover the belt recording at an earlier date, because the
recording did not constitute material impeachment evidence. (Salazar,
supra, 35 Cal.4th at pp. 1049-1052.)
In other words, it is not reasonably probable that defendant would have
realized a more favorable result had the recording been discovered earlier and
had defense counsel been able to use it to impeach any of the officers’
testimony. (Ibid.)
To be sure, defendant is
heard crying on the recording and saying he had just been beaten up by the
officers, and the officers are heard laughing as they placed defendant in the
patrol car. Defendant, his niece, and
two nephews each testified that the officers pulled defendant out of the
doorway and began beating him.
But Officer Bonome is heard
saying on the recording that defendant swore at the officers when defendant
answered the door, and that defendant “came
out and challenged us.†(Italics
added.) The recording thus corroborated
the officers’ testimony that defendant physically challenged them when he
answered the door.
name="_ftnref6" title="">[6]
In sum, defendant has not
established the third element of his Brady
claim—that the belt recording contained material
evidence in the sense that a different result was probable had the defense been
allowed to use the recording as impeachment evidence. (Salazar,
supra, 35 Cal.4th at p. 1052.)
3. The
Refusal to Allow the Impeachment Evidence
Independent of his
abused its discretion in refusing to allow his counsel to recall Officer Bonome
to impeach the officer with the contents of the belt recording. There was no abuse of discretion. Under Evidence Code section 352, a court has
broad discretion “to prevent criminal trials from degenerating into nitpicking
wars of attrition over collateral credibility issues.†(People
v. Wheeler (1992) 4 Cal.4th 284, 296.)
As the court concluded, the contents of the belt recording were
collateral to whether the officers used excessive force and whether defendant
challenged the officers to a fight, because the recorder was not activated
until after the officers restrained defendant and were placing him in the
patrol car. Additionally, whether the
officers used excessive force and whether defendant stepped onto the porch and
challenged the officers to a fight was explored at length through the testimony
of Officers Floyd, Wright, and Bonome; defendant; his niece; and two
nephews.
4. The
Refusal to Give the Late Discovery Instruction
As his fourth and final claim
of cumulative trial error, defendant claims the court erroneously refused to
give a modified version of CALCRIM No. 306 concerning the late disclosure of
the belt recording. Here, too, we find
no error.
As modified by the defense,
CALCRIM No. 306 would have told the jury:
“Both the People and the defense must disclose their evidence to the
other side before trial, within the time limits set by 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.
[¶] An attorney for the People failed to disclose: the existence of a belt recording made by
Officer Bonome that began after [defendant] was handcuffed and prior to transport
to the hospital 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.†(Italics added.)
Defendant claims the
instruction was erroneously refused because, though the prosecutor promptly
turned over the belt recording to the defense as soon as she was able to obtain
it from the police department, the police department unreasonably delayed in
turning over the recording to the prosecutor.
Defendant is mistaken. By its
terms, CALCRIM No. 306 addresses a party’s
failure to comply with the disclosure requirements of section 1054.1 et
seq. (Bench Notes to CALCRIM No. 306
(2009-2010) p. 87 [“[t]his instruction addresses a failure to comply with Penal
Code requirements.â€].) It is not
directed to the failure of an investigating agency, such as the Riverside
Police Department, to promptly turn over discoverable evidence to a party.
Indeed, section 1054.5,
subdivision (b) gives the court discretion to advise the jury of
evidence in violation of section 1054.1 et seq.
(See Bench Notes to CALCRIM No. 306, supra,
p. 87.) Nothing in the discovery
statutes gives the court discretion to advise the jury that an investigating agency,
such as the police department, failed to timely turn over evidence to a
party.
Further, section 1054.1
requires the prosecutor to disclose “[a]ll relevant evidence seized or obtained
as a part of the investigation of the offenses charged†(§ 1054.1, subd.
(c)) provided the evidence is “in the possession of the prosecuting attorney or
if the prosecuting attorney knows it to be in the possession of the
investigating agencies†(§ 1054.1).
There was no showing that the prosecutor knew the police department had
the recording. When the prosecutor
requested the recording in January 2009, she was told it did not exist. She requested the recording again after
Officer Bonome testified he activated his belt recorder at the hospital. The prosecutor complied with section 1054.7
in turning the recording over to the defense as soon she became aware of its
existence.
In refusing to give the
instruction, the court said, “I don’t find that the People acted
inappropriately,†The court was correct
and did not err in refusing to give CALCRIM No. 306.
5. No
Cumulative Trial Error
Because we have rejected
defendant’s claims of individual trial error, we perforce reject his claim of
cumulative trial error. (
335.)
D.
Properly Not Stayed (§ 654)
Defendant claims his
consecutive eight-month term on count 2 should have been stayed as a matter of
law under section 654, because he indisputably had the same intent and
objective in obstructing the officers in the performance of their duties
(§ 69; count 2) as he had in biting Officer Bonome’s finger, that is, as
he had in committing battery with injury on Officer Bonome (§ 243, subd.
(c)(2); count 1). We conclude that
separate punishment was properly imposed on count 2.
Section
654 precludes multiple punishment for two or more offenses that are part of an
indivisible course of conduct. (
162.) Offenses are part of an
indivisible course of conduct if the defendant harbored a single intent and
objective in committing the offenses. (
criminal objectives is a factual question for the court, and the court’s
findings will be upheld on appeal if they are supported by substantial
evidence. (Ibid.; see also People v. Liu
(1996) 46 Cal.App.4th 1119, 1135-1136.)
In imposing a three-month
term on count 1 and a separate eight-month term on count 2, the court
implicitly determined that defendant harbored separate intents and objectives
in committing counts 1 and 2.
Substantial evidence supports this determination.
After Officer Bonome knocked
on defendant’s front door, and as defendant was approaching the door, Officer
Bonome told defendant that he and the other officers needed to speak to
defendant’s brother, Alvaro Pereyra. Defendant
then swore at the officers, swung open the metal security door, stepped out
onto the porch area, and, with his fists balled up in front of him, physically
challenged the officers. The court could
have reasonably concluded that, in confronting and challenging the officers,
defendant intended to obstruct and delay the officers in locating Alvaro. Officer Floyd also testified that he was
concerned that Alvaro, a parolee, would flee the residence, and for that reason
a helicopter was called to the scene.
Additionally, the court could have reasonably
determined that defendant harbored a separate intent and objective in biting
Officer Bonome’s finger—that of inflicting injury on the officer (count
1). It was unnecessary to bite Officer
Bonome’s finger in order to obstruct or delay the officers in locating Alvaro
(count 2). The evidence also showed that
defendant had a history of fighting with police officers and disliked police
officers.
E. Monetary
Credit for Excess Presentence Custody Credits
The court imposed
a total of $380 in fines against defendant, including a $90 court security
fine, a $200 parole revocation fine, and a $90 criminal conviction assessment
fee. Defendant was entitled to 875
actual custody credits and 874 days of presentence custody credit. (§ 4019.) After application of the 875 days of actual
custody credits, the court applied 460 days of the 874 credits toward
defendant’s three-year eight-month prison term.
Defendant claims, and the People agree, that the
other 414 days of presentence custody credits should have been applied against
defendant’s fines at the rate of $30 per day, or $12,420, rendering his $380 in
fines paid in full. We agree.
At the time defendant was sentenced in May 2011,
section 2900.5, subdivision (a) provided, in pertinent part: “In all felony and misdemeanor convictions
. . . when the defendant has been in custody, . . .
all days of custody of the defendant, including days . . . credited
to the period of confinement pursuant to Section 4019 . . . ,
shall be credited upon his or her term of imprisonment, or credited to any fine
on a proportional basis . . . at the rate of not less than thirty
dollars ($30) per day . . . .
In any case where the court has imposed both a prison or jail term of
imprisonment and a fine, any days to be credited to the defendant shall first
be applied to the term of imprisonment imposed, and thereafter the remaining
days, if any, shall be applied to the fine on a proportional basis, including,
but not limited to, base fines and restitution fines.†(See People
v. McGarry (2002) 96 Cal.App.4th 644, 647.)
In accordance with section 2900.5, we modify
the judgment to deem defendant’s $380 in fines paid in full.
IV. DISPOSITION
Defendant’s
misdemeanor conviction for unlawfully using a controlled substance,
methamphetamine (Health & Saf. Code, § 11550, subd. (a)) is
reversed. The judgment is also modified
to deem defendant’s $380 in fines paid in full.
The trial court is directed to prepare an amended abstract of judgment
reflecting these modifications and to forward a copy of the amended abstract to
the Department of Corrections and
Rehabilitation. The judgment is
affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
RAMIREZ
P.
J.
HOLLENHORST
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] At oral argument, the Attorney General
conceded the issue.
