P. v. Escobar

Filed 8/22/08 P. v. Escobar CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Shari K. Silver, Judge. Affirmed.

Cheryl Barnes Johnson, 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 Sonya A. Roth, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

Francisco J. Escobar appeals from his convictions of assault on a peace officer and assault with force likely to produce great bodily injury. He argues the court erroneously denied his Pitchess[1]motion requesting that the court review the personnel files of the officers involved in his arrest. We conclude that denial of this motion was appropriate because appellant failed to articulate a specific factual scenario involving officer misconduct and failed to link the scenario to a proposed defense. Appellant also argues that he is entitled to a new trial due to prosecutorial misconduct. This is based on the prosecutor allowing the jury to see an unflattering photo of appellant. We find no reversible error and affirm the conviction.

FACTS AND PROCEDURAL SUMMARY

On February 24, 2007, appellant got into an argument with his girlfriend, Regina Diaz, at her house, prompting her mother to call the police. When police arrived, Regina was on the front porch crying and holding her hands to her face. There was a shattered gumball machine on the front lawn and other signs of a disturbance. The evidence is disputed as to what happened before police arrived. Regina testified appellant threw the gumball machine into the yard, but not at her. Officer Saul Esquivel, one of the responding officers, testified that Regina told him appellant had thrown the gumball machine at her, but it did not hit her. A district attorney investigator testified that Regina said the gumball machine was thrown in her direction. Appellants conviction of assault by means likely to produce bodily injury (Pen. Code, 245, subd. (a)(1)), is based on the theory that he threw the gumball machine at Regina.

After the gumball machine incident, Officer Esquivel went looking for appellant in his patrol car. He found appellant a block away, walking on the sidewalk. When Officer Esquivel approached him, appellant fled on a bicycle. Officer William Bailey joined Officer Esquivel in pursuit. Toward the end of the chase, appellant looked at Officer Bailey and threw a 40-ounce beer bottle at Baileys head. The bottle hit the officer on the forehead. Officer Bailey still managed to catch appellant and subdue him until other officers arrived. Officer Bailey was taken to a hospital emergency facility and treated for his injuries. The charge of assault on a police officer (Pen. Code, 245, subd. (c)), is based on appellants throwing the beer bottle at Officer Bailey.

Appellant was convicted on both counts. He previously had been convicted of a serious felony, which was a basis for the enhanced sentence he received. He has filed a timely appeal.

DISCUSSION

I

During trial, appellant brought a discovery motion seeking the personnel records of Officer Esquivel. The trial court denied this motion, explaining to defense counsel: Theres no denial of the charges by your client. Theres no explanation of how your request here supports any defense. In other words, theres no scenario in your declaration, for example, that the defendant was acting in self-defense when he assaulted Officer Bailey. The court went on to say, Youre claiming theres a false police report, but theres no explanation how this ties in with the defense of the defendant. All youve submitted were a few sentences here that Officer Esquivel punched your client, that he used excessive force, and he falsified an arrest report when he wrote that Officer Bailey utilized the control hold. But I dont see how this ties in with any kind of defense to the charge here, which is an assault on Officer Bailey. Defense counsel responded that the discovery motion was meant to demonstrate that Officer Esquivels omission of his use of force in the police report indicated that he also may have falsified the victims statements contained in the report. Defense counsel never specified which statements in the police report were falsified, what they would tend to prove, and to what defense scenario they would be relevant.

The court gave defense counsel another opportunity to explain when it asked whether, because Officer Esquivel did not include the fact that he punched your client in his arrest report[,] therefore he may be falsifying other things with regard to what he said the victim told him or what the witnesses told him? Is that sort of your theory here? Defense counsel responded yes. Defense counsel did not expand on this theory or go into any other detail. After this colloquy, the court denied the motion for lack of good cause due to the perfunctory nature of the motion. The court explained that the defense must set forth a specific factual scenario that establishes a plausible factual foundation for the officers misconduct. It noted that defendants motion was not factually specific and tailored to support the defendants claim of officer misconduct. No explanation is provided as to what particular statement or statements are incorrect in the police report, nor in what respect the statements were incorrect, nor what had been fabricated or how that is material to the defendants defense. . . . Theres been no denial on the defendants part of any of the charges or statements in the police report.

[U]nder Pitchess a criminal defendant is entitled to discover certain information from a police officers personnel records that would support a defense to the charge against the defendanta holding that the Legislature codified in 1978. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1020 (Warrick).) On a showing of good cause a criminal defendant is entitled to discovery of relevant documents or information in the personnel records of a police officer accused of misconduct against the defendant. (Evid. Code, 1043, subd. (b).) Good cause for discovery exists when the defendant shows both materiality to the subject matter of the pending litigation and a reasonable belief that the agency has the type of information sought. (Cityof Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84.) A showing of good cause is measured by relatively relaxed standards that serve to insure the production for trial court review of all potentially relevant documents. (Ibid.) (Warrick, supra, at p. 1016, fn. omitted.) A Pitchess motion must proffer a defense to the pending charge and articulate how the requested discovery may lead to relevant evidence or may itself be admissible direct or impeachment evidence. (Warrick, supra, 35 Cal.4th at p. 1024.) Counsels affidavit must also describe a factual scenario supporting the claimed officer misconduct. (Id. at p. 1024.) We conclude that a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. . . . Once that burden is met, the defendant has shown materiality under section 1043.[2] (Warrick, atp. 1026.)

Assertions in the affidavits may be on information and belief and need not be based on personal knowledge [citation], but the information sought must be requested with sufficient specificity to preclude the possibility of a defendants simply casting about for any helpful information. (Garcia v. Superior Court (2007) 42 Cal.4th 63, 70, quoting People v. Mooc (2001) 26 Cal.4th 1216, 1226.) If the defendant clears this modest bar, the trial court must conduct in camera review of the documents and discloses only that information falling within the statutorily defined standards of relevance. (Warrick, supra, 35 Cal.4th at p. 1019.)

The standard of review for this kind of discovery motion denial is abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)

Appellant did not satisfy the Pitchess motion requirements as outlined in Warrick because he failed to articulate a specific factual theory as to how evidence of officer misconduct contributes to a proposed defense theory. Appellants notice of motion for pretrial discovery is largely boiler-plate; only a few sentences relate to appellants case. The trial court apparently understood that the proposed defense had to do with the assault on Officer Bailey rather than the assault on appellants girlfriend. Although defense counsel later explained that the defense pertained to the assault on appellants girlfriend, she made no attempt to amend the motion or supporting declaration.

Appellant also claims his not guilty plea is sufficient to satisfy the scenario and denial requirement. That premise, if accepted, would lead to the conclusion that Pitchess is satisfied by simply proceeding to trial. As Warrick explains, that is not the case.

Appellant makes a related claim, under Brady v. Maryland (1963) 373 U.S. 83 (Brady). He contends that caserequires disclosure of the personnel files if they serve to assist a defendant in proving innocence. A prosecutors duty under Brady to disclose material exculpatory evidence applies to evidence the prosecutor, or the prosecution team, knowingly possesses or has the right to possess that is actually or constructively in its possession or accessible to it. (Italics added.) Because . . . the prosecutor does not generally have the right to possess and does not have access to confidential peace officer files, [defendants] argument for routine review of the complete files of all police officer witnesses in a criminal proceeding necessarily fails. (People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1475.) The argument that the statutory Pitchess scheme offends constitutional due process by requiring that a defendant establish good cause for the disclosure of evidence the prosecution is already under a pre-existing obligation to provide, is likewise unavailing. (Gutierrez, at p. 1475.)

Appellant seems to argue that under Brady, the prosecutor has an affirmative duty to seek out and review any possible exculpatory evidence in the personnel records. The court in People v. Gutierrez, supra, 112 Cal.App.4th 1463 rejected this argument, and we agree. A prosecutor does not have access to police personnel files other than by bringing a Pitchess motion, and as such, has no greater access to the files than the defense. Brady does not require the prosecution to seek out and review such files. (See People v. Gutierrez, supra, 112 Cal.App.4th 1475-1476; see also Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57-59 & fn. 15.)

II

Appellant argues the prosecutor committed prejudicial misconduct by displaying a photograph which showed appellant with a shaved head and no shirt. The picture apparently was a booking photograph of appellant in which he was not wearing a shirt, had a shaved head, and a ring of tattoos on his chest. The tattoo had writing in a kind of script commonly associated with gangs, but was never identified as being a gang marking. It was not admitted into evidence, and once the prosecutor displayed it to the jury, defense counsel quickly objected. The court properly ordered the prosecutor to stop displaying the photo. The exposure of the photo to the jury lasted only a few seconds.

Immediately after it occurred, the court ordered a recess and spoke to counsel. The prosecutor tried to convince the court that defense counsel knew he was going to display the photo, but the trial court did not believe him. The trial court stated that displaying the photo was absolutely improper and proceeded to poll the jury in order to ascertain the harm, if any, from the prosecutors conduct.

The court inquired of the jurors as to whether any of them had seen the photograph. One juror and two alternates raised their hands indicating they had seen it. The court admonished the jury, telling them the display was improper and that they must disregard anything they saw. The court then spoke to each of the three jurors privately and separately, asking each what he or she had seen. For our purposes, we disregard the alternate jurors perceptions about the image as they did not participate in the verdict. The juror who saw the photo said what he saw was a color image of an individual, whom he did not recognize because the photo was only displayed for a short time. The court again admonished the juror and asked whether the juror could continue without the picture impacting his view of the evidence. The juror replied that he could disregard the photo. The court found the prosecutors act to be misconduct, but based on the jurors perception of the photo, did not order a mistrial.

We agree with the trial court that it was improper for the prosecutor to allow the photo, which was not admitted into evidence, to be seen by the jury. The photo implies that appellant was in a gang, which was not in evidence. But we find no prejudice from the brief display that occurred. Only one juror saw the photo and he did not recognize the person in the photo as the defendant. Additionally, the photo itself is not particularly prejudicial. Finally, whatever harm that could have come from a mere glimpse of the photo was cured by the courts admonishment to the entire panel and the two admonishments it gave to the one juror who saw the image. We presume the jury heeds the trial courts admonitions and we assume that any prejudice was avoided. (People v. Jones (1997) 15 Cal.4th 119, 168, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL RECORDS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531. The holding of this case has been codified. See Evidence Code section 1043 et seq.

[2] Additionally, the courts suggested inquiry to determine good cause is as follows: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? If defense counsels affidavit in support of the Pitchess motion adequately responds to these questions, and states upon reasonable belief that the governmental agency identified has the records or information from the records ( 1043, subd. (b)(3)), then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant. (Warrick, supra, 35 Cal.4th at pp.1026-1027.)