P. v. Rubin

Filed 1/21/09 P. v. Rubin CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Sam Ohta, Judge. Affirmed.

Thomas Owen, 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, Senior Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Appellant Mario Rubin pled guilty to one count of carrying a concealed weapon in violation of Penal Code[1]section 12015, subdivision (a)(2). In a consolidated case, appellant was convicted, following a jury trial of one count of shooting at an occupied motor vehicle in violation of section 246 and one count of assault with a firearm in violation of section 245, subdivision (a)(1).[2] The jury found true the allegation that appellant personally used a firearm in the commission of the assault within the meaning of section 12022.5, subdivision (a)(1). Appellant admitted that he had suffered a prior sustained juvenile petition for carjacking. He also admitted that he committed the section 245 and 246 offenses while released on bail within the meaning of section 12022.1. The trial court sentenced appellant to a total term of 16 years, 8 months in state prison for the two cases.

Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his Pitchess motion and request to bifurcate the gang enhancements, and further contending that the prosecutor committed misconduct. Appellant also contends that the trial court erred in using his juvenile adjudication as a strike and in denying his motion to strike his prior conviction. We affirm the judgment of conviction.

Facts

The facts of the gun possession charge are not disputed and not relevant to any issue on appeal and are accordingly omitted.

On September 6, 2005, around 10:00 p.m., Jonny Linares was waiting in his parked white Toyota SUV with his pastor's wife for the pastor to meet them. A green car pulled up next to the SUV and appellant got out of the passenger side of the car. He was wearing a Michael Jordan Washington Wizards jersey and had a gun in his hand. Appellant walked up to the driver's side window of Linares's SUV and asked Linares where he was from. Linares replied: "Nowhere." The pastor's wife leaned forward. Appellant said, "Sorry, sorry, sorry," returned to his car and left.

Linares went inside his house, called his brother to warn him to be careful. His brother contacted the police, who went to Linares's house. Linares gave Los Angeles Police Officers Montes and Perez a description of appellant, including the observation that he was wearing the Jordan Wizards jersey.

While Linares was speaking with police, Linares's neighbor, Felipe Basulto, drove up in his white Jeep Cherokee. Basulto's wife was with him. One of the Jeep's tires was "popped." Basulto explained that he had been driving on Greenwood Street when he saw appellant standing in the street next to a green car. Appellant was wearing a white Wizards jersey and long shorts. Appellant tried to wave Basulto down, but Basulto kept driving. Appellant got into the green car and followed him. Basulto saw appellant with a gun, heard a shot and saw a flash from a gun in the green car. Basulto continued to drive and appellant continued to follow him. Appellant pulled up next to Basulto and shot his tire. Basulto drove home and discovered police talking with Linares.

The police asked Basulto if he had heard gunshots. Basulto replied that gunshots had been fired at him. He gave police a description of appellant and the green car.

About 1:50 a.m., Officers Montes and Perez saw a green car which matched the description given by Linares and Basulto. They conducted a traffic stop. When the green car pulled over, a man carrying a revolver got out of the passenger's side and fled. Appellant, who was driving, remained in the car. He was wearing a white Wizards jersey. His right arm was wrapped in a gauze bandage. Appellant was arrested.

About 2:00 a.m., Linares identified appellant from a field show-up. He was unable to identify the other man.

Appellant told Detective Esparra that on September 6 about 10:00 p.m., he left Mike's Bar where he had been drinking with a female friend. He saw a black Toyota drive down the street. There were several Hispanics inside who yelled "Fuck Putas Barratos" and fired a gun at him. Appellant was hit in the arm. He drove himself to County USC Medical Center and was treated. He did not call the police. When appellant left the hospital, a male Hispanic pointed a gun at him and got into appellant's car. The man fired a round into the air. Appellant started driving. Two minutes later he was stopped by police.

At trial, the People offered the testimony of gang expert Officer Hector Marquez that appellant was a member of the Playboys gang until at least 2002. In 2004, appellant was no longer claiming membership in the Playboys gang. In 2005, appellant attempted to remove some of his gang tattoos. Mike's Bar is a Playboys hang-out. The crimes in this case occurred in territory claimed by Mara Salvatrucca. Mara Salvatrucca is a rival gang of the Playboys gang. Officer Marquez opined that the shooting was retaliation by appellant for being shot by a Mara Salvatrucca gang member and was for the benefit of the Playboys gang.

In his defense, appellant offered the testimony of gang expert Kimi Scudder that a gang member would normally yell the name of his gang when doing a retaliatory shooting. Scudder described the efforts involved in a person leaving a gang. She believed that appellant had made such efforts, including moving out of his neighborhood, going to school, getting a job, finding religion and trying to remove his tattoos.

Appellant also offered testimony from several individuals on his involvement in the SGI group of Buddhism.

The jury convicted appellant of shooting at an occupied vehicle and assault with a firearm involving Linares and Basulto. The jury found not true the gang enhancement to the shooting at an occupied vehicle and was unable to reach agreement on the gang enhancement to the assault charge.

The People also offered evidence of another shooting which occurred on September 6, 2005 about 10:00 p.m. The victims in that case were Maurilio Lopez and Jose Lopez. Maurilio told police that his assailant was wearing a dark, long-sleeved sweatshirt and a cap. Maurilio identified appellant at field show-up in the early morning hours of September 7, but did not identify him at trial. The jury acquitted appellant of the assault and attempted murder charges involving the Lopezes.

Discussion

1. Pitchess motion

Appellant contends that the trial court abused its discretion in denying his motion for discovery of police officer personnel records. We do not agree.

A trial court's ruling on a motion for discovery of police officer personnel records is reviewed for an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 832.)

Evidence Code section 1043, which codifies Pitchess, provides that the party seeking discovery of law enforcement personnel records must submit an affidavit showing "good cause" for their discovery, setting forth the materiality of the requested documents and stating "upon reasonable belief" that a governmental agency actually has them. (Evid. Code,  1043, subd. (b)(3).) Once "good cause" is shown, the trial court examines the material sought in camera to determine its relevance to the case according to the guidelines in Evidence Code section 1045.

A showing of good cause requires a defendant to demonstrate the relevance of the requested information by providing a "specific factual scenario" which establishes a "plausible factual foundation" for the allegations of officer misconduct committed in connection with defendant. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86.) Although the factual scenario and foundation must be set forth in an affidavit or declaration, there is no requirement of personal knowledge on the part of the declarant or affiant. (Id. at pp. 86-89.) The threshold showing of good cause and materiality the defense must make to justify an in camera review of the records is "relatively low" or "relatively relaxed." (Id. at pp. 83-84.)

"[A] showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021.)

"[A] plausible scenario of officer misconduct is one that might or could have occurred." (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1026.)

Here, appellant sought discovery of prior incidents of evidence fabrication, fabrication of police reports, false testimony and perjury. To support this request, appellant asserted in his declaration that his defense to the charges would be misidentification, and that Officers Perez and Montes fabricated evidence and gave false testimony to buttress the witnesses' identification and the case against appellant. Specifically, appellant claimed that Officer Perez lied at the preliminary hearing when she testified that appellant was wearing shorts at the time of his arrest in order to match appellant's clothing to the witnesses' descriptions. He based his claim of falsehood on Officer Montes's statement in his police report that appellant was wearing sweatpants when he was arrested. Appellant also claimed that the officers falsely claimed in the police report that the witness stated that the assailant was wearing a white Michael Jordan Washington Wizards jersey. Appellant acknowledges that he was wearing such a jersey when he was arrested. Appellant bases his claim of falsehood on the fact that the pre-arrest police broadcast of the assailant's description did not mention such a jersey.

We find that appellant failed to establish a plausible factual foundation for his scenario of officer misconduct. We see no basis to infer that the officers falsely added the Jordan jersey to the witnesses' description after appellant was arrested. Mere omission of the jersey from a police broadcast does not support such an inference. Appellant points to nothing else concerning the jersey.

Appellant has identified a difference in the two officers' description of the pants which appellant was wearing. A description of clothing is subjective, and the same garment could be viewed by one person as long shorts and another as short pants. However, even assuming for the sake of argument that the two descriptions are mutually exclusive, appellant offered no evidence as to which one was correct. Appellant does not explain what, exactly, he was wearing when arrested.[3] If he was wearing shorts, then under appellant's theory, it was Officer Montes who was mistaken when he wrote that appellant was wearing sweat pants. But such a mistake could not be part of an attempt to buttress the identifications, since the witnesses apparently stated that appellant was wearing shorts.

Since appellant failed to show the possibility of evidence fabrication, false police reports, false testimony or perjury related to his defense, the trial court did not err in denying his request for discovery of prior incidents of such behavior. Since there was no showing of fabricating evidence in this case, appellant would have no basis for introducing any other instances of evidence fabrication he might have discovered through his Pitchess motion.

Appellant additionally sought discovery of prior incidents of failures to preserve evidence by Officers Perez and Montes. In support of this request, appellant stated that part of his defense was that he was being treated in a hospital emergency room until minutes before his arrest and so could not have been the assailant. He further stated that when the officers returned appellant to the hospital for further treatment after his arrest, they encountered the doctor who had treated appellant earlier. He asked the officers to write down the doctor's name or to get the medical records for his earlier visit. They refused. Appellant describes this refusal as a failure to preserve exculpatory evidence.

We find that appellant failed to establish a plausible factual foundation for his scenario of failure to preserve evidence. The hospital would certainly retain records of appellant's treatment. No intervention by the police was required. The doctor's name was known to appellant and would in any event be in the hospital's records. There was no failure to preserve evidence. Thus, the trial court did not err in denying his request for discovery of prior incidents of such behavior.

Appellant also sought discovery of incidents of excessive force by all the officers present at his arrest. To support this request, appellant's counsel stated that the officers had beaten appellant when they arrested him. Appellant was charged only with shooting at non-police victims. Thus, evidence of excessive force was irrelevant to the pending charges. (See, e.g., People v. Hustead (1999) 74 Cal.App.4th 410, 416 [prior complaints of excessive force by arresting officer "irrelevant" after charge of resisting arrest was dropped and remaining charge was evasion of arrest in an automobile].) Thus, the trial court did not err in denying his request for discovery of prior incidents of such behavior.[4]

We note that appellant did not claim in his motion or at the hearing that the beating was done to elicit information.

Appellant further sought evidence of prior incidents of false testimony by Officer Marquez, the gang expert in this case. In support of this request, appellant's counsel stated that Officer Marquez falsely testified at the preliminary hearing that appellant admitted his gang membership to Officers Mares and Gutierrez when they arrested appellant on a prior occasion. Appellant bases his claim of falsehood on the fact that the report prepared by Officers Mares and Gutierrez does not mention appellant's gang admission.

We find that appellant failed to establish a plausible factual foundation for his scenario of false testimony by Officer Marquez. The preliminary hearing testimony shows that Officer Marquez testified that he spoke with Officers Mares and Gutierrez, and that they told him of appellant's admission. Omissions in Officer Mares's and Gutierrez's police report does not support an inference that Officer Marquez lied about his oral communication with those officers. Thus, the trial court did not err in denying his request for discovery of prior incidents of such behavior.

2. Prosecutorial misconduct

Appellant contends that the prosecutor committed misconduct during closing argument when he commented on appellant's failure to call witnesses, specifically percipient witnesses and police officers.[5] We see no misconduct.

The general rule is that prosecutorial misconduct violates a defendant's federal constitutional right to due process when a prosecutor's behavior amounts to a pattern of egregious misconduct that infects the trial with unfairness. Prosecutorial misconduct violates California law when a prosecutor uses deceptive or reprehensible methods to persuade a jury. (People v. Stanley (2006) 39 Cal.4th 913, 951.)

Argument is "traditionally vigorous and therefore accorded wide latitude." (People v. Fierro (1991) 1 Cal.4th 173, 212.) A prosecutor may comment upon the state of the evidence, including the failure of the defendant to introduce material evidence or call witnesses. (People v. Brown (2003) 31 Cal.4th 518, 554; People v. Boyette (2002) 29 Cal.4th 381, 434; People v. Mincey (1992) 2 Cal.4th 408, 446.)

Appellant contends that the prosecutor's argument was deceptive and reprehensible because the prosecutor and the court effectively barred appellant from calling such witnesses by denying his Pitchess motion. He contends that the denial of the Pitchess motion deprived him of the impeachment evidence which would give him a basis for calling and contradicting the police officers and impugning their effect on the percipient witnesses.

As we have discussed, supra, appellant was not entitled to the discovery he sought in his Pitchess motion. But the denial of that motion only prevented appellant from learning of any instances of misconduct by the relevant officers which occurred in other cases. It did not prevent him from presenting evidence of any misconduct which occurred in this case.

As we discuss above, one of appellant's theories was that police officers falsified their report to show that witnesses described their assailant as wearing a Jordan jersey when in fact the witnesses gave no such description. Two of those witnesses, Linares and Basulto, were witnesses for the prosecution in this case. Both testified that the assailant wore a Jordan jersey and that they told police about the jersey. Appellant was free to cross-examine them or call them as his own witnesses to inquire on this subject. Further, appellant could have called the pastor's wife and Mrs. Basulto and asked them about the clothing the assailant was wearing, if he thought they would provide a different description of the assailant's clothing which would impeach Linares, Basulto, Officer Perez and Officer Montes. Similarly, another of appellant's theories of misconduct was that Officer Marquez lied when he claimed that Officers Mares and Gutierrez told him that appellant had admitted gang membership. Nothing prevented appellant from calling Officers Mares and Gutierrez to testify that they never told Officer Marquez about appellant's gang admission to impeach Officer Marquez's claim that they had.

Had appellant produced such evidence, it would have been powerful support of his theories that police fabricated evidence to buttress shaky identifications and to prove that he was a gang member, and would have undercut Linares's and Basulto's identifications.[6] The prosecutor was permitted to comment on appellant's failure to call such witnesses.

Appellant's reliance on People v. Varona (1983) 143 Cal.App.3d 566 is misplaced. In that case, the prosecutor argued that the defense had failed to introduce evidence to support the defense theory which the prosecutor knew had been excluded by the court and also argued that the defense theory (that the victim was a prostitute) was false when the prosecutor knew it was true. That was not the case here. As we discuss, supra, the evidence mentioned by the prosecutor was not excluded. The prosecutor made no false statements.

It was appellant's own failure to provide a factual foundation for his motion that resulted in a denial of that motion.

To the extent that appellant contends that the prosecutor's argument that some defense witnesses had been called to generate sympathy for appellant, this was fair comment on the evidence. To the extent that appellant contends that the prosecutor's comments that the witnesses were for "jury nullification" was improper, we see no pattern of misconduct. The comment was brief, appellant's objection was sustained, and the prosecutor did not repeat the reference. Further, this was simply a shorthand way of saying what the prosecutor had already properly argued: that the witnesses were called for sympathy, but that it would be improper for the jury to base its verdict on sympathy.

3. Failure to bifurcate gang allegation

Appellant contends that the trial court abused its discretion in denying his motion to bifurcate the gang allegation because none of the victims were gang members and no gang names were used in the crimes. We do not agree.

"[A] criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense." (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) Thus, less need for bifurcation generally exists with a gang allegation than with a prior conviction allegation. (Ibid.)

Even absent a gang allegation, evidence of gang membership is often relevant to, and admissible regarding the charged offense. Evidence of gang affiliation "can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) Thus, when evidence of gang affiliation would be admissible at a trial of guilt, any inference of prejudice from that evidence would be dispelled. (Id. at pp. 1049-1050.)

Here, the prosecutor stated that he intended to offer evidence showing that appellant was shot by someone who used a derogatory name for appellant's gang, appellant left the hospital after being treated for his wound without talking to police and went to an area claimed by a rival gang. Appellant asked at least one of the victims where he was from, which is a gang challenge.

The evidence identified by the prosecutor showed that appellant's gang affiliation was the motive for his otherwise pointless shootings. The gang evidence was thus intertwined with the charged offenses. The trial court did not abuse its discretion in denying the motion to bifurcate. Further, even assuming that the trial court erred, any error was clearly not prejudicial to appellant as the jury acquitted him on four of the six charges, including the two most serious charges of attempted murder.

4. Cumulative error

Appellant contends that the cumulative effect of the error in his trial deprived him of due process and a fair trial. We have not found error, so there can be no cumulative effect.

5. Prior juvenile adjudication

Appellant contends that the use of his prior juvenile adjudication as a prior conviction for purposes of the "Three Strikes" law violated his rights to a jury trial and due process under the Sixth and Fourteenth Amendments to the U.S. Constitution.

Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 and U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187, appellant contends that a juvenile adjudication may not be considered a prior serious felony because a juvenile is not given the right to a jury trial when his delinquency case is adjudicated. We and other California Courts of Appeal have consistently rejected that argument. (See People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Superior Court (2003) 113 Cal.App.4th 817, 834; People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1077-1078; People v. Bowden (2002) 102 Cal.App.4th 387, 391-394; People v. Fowler (1999) 72 Cal.App.4th 581, 586.)

This issue is currently before the California Supreme Court in People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted, October 10, 2007, S154847. Pending a decision in that case, we decline to depart from the consistent analysis of the Courts of Appeal.

6. Denial of motion to strike

Appellant contends that the trial court abused its discretion in refusing to strike his prior juvenile adjudication. We see no abuse of discretion.

Rulings on motions to strike prior convictions are reviewed under the deferential abuse of discretion standard. Under that standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling. (People v. Carmony (2004) 33 Cal.4th 367, 373.)

Appellant contends that his juvenile adjudication was over 10 years old, the intervening years were "relatively crime free" and he had renounced his gang life and turned to the practice of Buddhism.

The trial court noted that the juvenile adjudication was not appellant's first contact with law enforcement. The court pointed out that carjacking was not one of the less serious of the violent and serious felonies included under the Three Strikes law. The court found that since the juvenile adjudication, appellant violated his probation and was sent to the California Youth Authority. Later, as an adult, appellant had a minor driving offense and a more serious gun offense. Then, he had a gun conviction in the consolidated case. The court also found that the current convictions involved two separate shootings, which involved different victims and different locations, and so did not fall outside the spirit of the Three Strikes law. The court considered the mitigating factors that appellant had renounced gang life and begun practicing Buddhism. The court commented: "And so if a person is apparently practicing Buddhism yet shooting at people, I do not see the fact that he practices Buddhism as mitigation."

The trial court's comments indicate that it properly considered the nature and circumstances of appellant's current and prior convictions and the particulars of his background, character and prospects, and reached an impartial decision. (People v. Williams (1998) 17 Cal.4th 148, 161-164.) Thus, the trial court did not abuse its discretion.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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[1] All further references are to the Penal Code unless otherwise indicated.

[2] While appellant was on bail following his plea in the concealed weapon case, he was involved in the shootings which resulted in the jury verdicts in the second case.

[3] If anything, appellant implies that he was wearing shorts.

[4] We also note that on appeal appellant suggests that the officers improperly influenced identifications made by percipient witnesses by suggesting that the officers believed that the man they had captured was the shooter. Appellant did not make this claim as part of his Pitchess motion, and so has forfeited it on appeal. The testimony that appellant cites occurred during trial, long after the Pitchess motion was decided.

[5] We do not agree with respondent that appellant forfeited this claim by failing to object. Appellant did object immediately after the prosecutor argued that appellant did not call any percipient witnesses or police officers to testify about the descriptions.

[6] We note appellant was acquitted on counts 1, 2, 4 and 5. Marilio Lopez, one of the two victims on those counts, identified appellant in a field line-up as the shooter, but could not identify him at trial. Lopez's pre-arrest description of the shooter's clothing did not match the clothing which appellant was wearing when arrested; Lopez told police that the shooter was wearing a black shirt and a baseball cap.