P. v. Williams

Filed 7/14/09 P. v. Williams CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Larry Williams and Rodney Davis appeal from judgments entered after a jury convicted them of second degree robbery (Pen. Code,  211), and possession of a firearm by a felon ( 12021, subd. (a)(1)).[1] Davis was also found guilty of evading an officer while operating a motor vehicle, in violation of Vehicle Code section 2800.1.[2]The jury also found true the allegation that Williams personally used a firearm in committing the robbery ( 12022.53, subd. (b)). In a bifurcated proceeding, Davis admitted two prior strike convictions ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and one prior serious felony conviction ( 667, subd. (a)(1)). The court also found true the allegation that Williams had one prior strike conviction that also qualified as a serious or violent felony under section 667, subdivision (a)(1). Williams was sentenced to a total term of 25 years in state prison. Davis was sentenced to a total term of 16 years, 10 months. Davis asks us to independently review the sealed transcripts of the in camera hearing on his motion for a disclosure of police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531. He also contends the court erred in imposing a consecutive sentence on the evading an officer count. Williams contends (1) the evidence is insufficient to support his robbery conviction; (2) the court erred in finding that his prior federal conviction for attempted bank robbery qualified as a serious or violent felony; and (3) he was erroneously sentenced to the upper term.

We conditionally reverse the judgment as to Davis and remand for a new Pitchess hearing in which the proper procedure is followed. The judgments are otherwise affirmed.

STATEMENT OF FACTS

At 2:30 p.m. on December 14, 2007, Williams approached Alfred Brooks in front of a check cashing store in Compton. Brooks, the owner of the store, was carrying a green bag that contained $4,000 in cash. Williams pointed a handgun at Brooks and said, "'Give me the damn bag,'" then grabbed the bag from his shoulder and ran to a white Chevrolet Tahoe parked nearby. As soon as Williams got into the back seat, the Tahoe sped away. Shortly thereafter, a witness gave Brooks the Tahoe's license plate number, which Brooks then gave to the police.

Los Angeles County Deputy Sheriff, Juan Tobias, was driving to the scene in response to a 911 call when he saw the Tahoe travelling eastbound on El Segundo Avenue approaching Alameda Avenue. Deputy Tobias activated his emergency lights and siren, but the Tahoe did not stop. The deputy pursued the Tahoe for several blocks to a housing project. Williams and Davis, who was subsequently identified as the driver, suddenly exited the Tahoe while it was still moving and ran in different directions. Davis was holding a black handgun as he ran, while Williams was carrying a green bag. Deputy Tobias followed Davis into the housing project, where he was apprehended by another officer shortly thereafter. Williams was also detained as he was running westbound through the same housing complex. The bag of money was found along the path Williams had travelled and was subsequently returned to Brooks. No handguns were located.

Davis testified in his own defense. He claimed he merely agreed to give Williams a ride to cash his check and that he never intended to assist him in committing a robbery. According to Davis, he parked in a manner that prevented him from seeing the front of the check cashing store. While he may have sped away, he only did so to avoid oncoming traffic. He was on his way back to his sister's house when he saw Deputy Tobias take a "hard look" at him and then make a "frantic" U-turn. At that point, Davis first noticed that Williams had a green bag lying on top of a shiny silver handgun. When Williams told him to get him to the projects, he began to think that Williams had done something. He did not stop when he saw the lights and sirens because he "panicked," yet he was unable to explain why he got out of the car and ran away. He denied having a gun.

DISCUSSION

Davis

I.

Pitchess

Prior to trial, Davis filed a Pitchess motion seeking discovery of complaints and allegations against Officers Tobias and Torres regarding, among other things, fabrication of evidence and filing of false reports. Davis based the motion on his representation that both officers had lied about him possessing a handgun, which was never found. The court found that Davis had made a prima facie showing of good cause for the requested discovery, held an in camera hearing, and concluded that no such information existed. Davis asks us to independently review the sealed transcript and records produced in response to his discovery motion. (People v. Samuels (2005) 36 Cal.4th 96, 110 [standard of review].) The People do not oppose the request. Having reviewed the sealed transcript, we conclude that the matter must be conditionally reversed for a new Pitchess hearing in which the custodian of records testifies under oath and either provides the court with the officers' entire personnel files or summarizes their contents for the court's review. "Although the custodian of records was required to submit for review only those documents that were potentially responsive to the discovery request, our Supreme Court has directed that '[t]he custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion.' [Citation.] Moreover, 'if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court.' [Citation.] [] Accordingly, in cases such as this where the custodian of records does not produce the entire personnel file for the court's review, he or she must establish on the record what documents or category of documents were included in the complete personnel file. In addition, if it is not readily apparent from the nature of the documents that they are nonresponsive or irrelevant to the discovery request, the custodian must explain his or her decision to withhold them. Absent this information, the court cannot adequately assess the completeness of the custodian's review of the personnel files, nor can it establish the legitimacy of the custodian's decision to withhold documents contained therein. Such a procedure is necessary to satisfy the Supreme Court's pronouncement that 'the locus of decision making' at a Pitchess hearing 'is to be the trial court, not the prosecution or the custodian of records.' [Citation.] It is for the court to make not only the final evaluation but to make a record that can be reviewed on appeal." (People v. Guevara (2007) 148 Cal.App.4th 62, 68-69.) The custodian must also be placed under oath before responding to the court's questions during the in camera proceeding. (People v. Mooc (2001) 26 Cal.4th 1216, 1230, fn. 4.)

Here, the custodian of records who testified at the in camera hearing did not do so under oath. (People v. Mooc, supra, 26 Cal.4th at p. 1230, fn. 4 ["[C]riminal defendants are protected by the fact that a representative of the custodian of records is placed under oath before responding to a trial court's questions during the in camera inspection of records"].) Moreover, the record does not reflect whether the custodian provided the court with the officers' entire personnel files, nor is there any record of any documents or category of documents that were not produced for the court's review. In light of these errors, we must conditionally reverse the judgment and remand the matter for a new Pitchess hearing in which the proper procedure is followed. (People v. Guevara, supra, 148 Cal.App.4th at p. 69; see also People v. Wycoff (2008) 164 Cal.App.4th 410, 415.)

II.

Section 654

Davis asserts that the court sentenced him to a consecutive six-month term for his evading an officer conviction (Veh. Code, 2800.1) in violation of section 654 because the crime was part of an indivisible course of conduct and was committed pursuant to the same intent and objective as the robbery. We disagree.

Subdivision (a) of section 654, provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 applies not only to a single act, but also to an indivisible course of conduct committed pursuant to the same criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [] If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.) "The defendant's intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. [Citation.]" (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)

The record here supports the imposition of punishment on both counts. The trial court could reasonably conclude that Davis had separate criminal objectives when he fled the scene of the robbery, and then evaded the officer several blocks away. While appellant argues that he had not yet reached a place of temporary safety from the robbery when the officer began his pursuit, substantial evidence supports the court's implicit finding to the contrary. (See People v. Haynes (1998) 61 Cal.App.4th 1282, 1291-1292.) Because the record supports the conclusion that appellant's intent to escape the police was a distinct criminal objective, separate from his intent to facilitate the robbery, multiple punishment for the crimes was not barred under section 654.

III.

Sufficiency of the Evidence

Williams contends the evidence is insufficient to support his robbery conviction because there is no evidence from which the jury could have found that he took possession of the victim's property by means of force or fear. This claim is without merit.

In assessing the sufficiency of evidence to support a judgment, we review the entire record to determine whether reasonable and credible evidence supports the decision of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1180.) We view the evidence and draw all reasonable inferences therefrom in favor of the judgment. (Ibid.) We do not redetermine witness credibility or resolve conflicts in the evidence. (Id. at p. 1181.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]" (Ibid.) The testimony of a single witness, if believed by the factfinder, is sufficient to support a conviction. (Ibid.)

The evidence is sufficient to support the finding that Williams used force or fear in taking the property upon which his robbery conviction is based. The victim's testimony that Williams pointed a gun at him, standing alone, is sufficient to sustain the conviction. (People v. Young, supra, 34 Cal.4th at p. 1181.) Williams nevertheless asserts that this testimony was "inherently impossible or incredible" because no gun appears to be visible on the videotaped recording of the crime that was captured on a surveillance camera and played for the jury. As the People correctly note, however, "any number of factors, i.e., the quality of the video, appellant's body blocking any view of the pistol, the size of the pistol, etc., could have prevented the pistol from being visible in the video. Indeed, trial counsel admitted that, 'It doesn't really show it. It just shows kind of the side, [Williams'] right side, walking up, the grab, turn and run.'"

Williams also ignores Davis's testimony that Williams had a gun when he returned to the Tahoe with the victim's property. He also fails to appreciate that the jury separately convicted him of possessing the gun, and he does not challenge that conviction on appeal. In any event, Williams fails to establish that the facts he concedes to be true, i.e., confronting the victim and demanding, "'Give me the damn bag,'" grabbing the bag from his shoulder, and running away, are insufficient to sustain a finding that he took the bag by force or fear as contemplated by section 211. His claim that the evidence is insufficient to sustain his conviction under that section accordingly fails.

Williams

I.

Prior Federal Conviction for Attempted Armed Bank Robbery

Williams asserts the court erred in finding that his prior federal conviction for attempted bank robbery under 18 United States Code section 2113 (hereafter 18 U.S.C. 2113), subdivision (a), qualified as a serious or violent felony under the three strikes law and section 667, subdivision (a)(1). We disagree.

Subdivision (a) of 18 U.S.C. 2113 identifies two distinct offenses in separate paragraphs. The first offense prohibits the taking of money or other property from a bank "by force and violence, or by intimidation," while the second criminalizes entry into a bank with the intent to commit "any felony affecting such bank."[3] (Ibid.) The first offense, but not the second, constitutes a serious felony under the three strikes law. (People v. Miles (2008) 43 Cal.4th 1074, 1081-1082.)

When a prior conviction is for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. (People v. Miles, supra, 43 Cal.4th at p. 1083.) While the mere fact of a conviction under 18 U.S.C. 2113, subdivision (a) is insufficient to prove that the defendant was convicted under the first paragraph of the statute, evidence describing the nature and circumstances of the conviction is admissible to establish that he or she was so convicted. (People v. Miles, supra, at p. 1082.) "Absent rebuttal evidence, the trier of fact may presume that an official government document, prepared contemporaneously as part of the judgment record, and describing the prior conviction, is truthful and accurate. Unless rebutted, such a document, standing alone, is sufficient evidence of the facts it recites about the nature and circumstances of the prior conviction. [Citation.]" (Id. at p. 1083.)

The evidence presented by the prosecution is sufficient to prove that Williams's prior conviction under 18 U.S.C. 2113, subdivision (a), qualified as a strike. Miles is instructive. The evidence in that case, a certified judgment and commitment order issued by a federal court judge, reflected that the defendant had entered a guilty plea to "Armed Bank Robbery" in violation of 18 U.S.C. 2113, subdivisions (a) and (d). (People v. Miles, supra, 43 Cal.4th at p. 1077.) The Supreme Court deemed this evidence sufficient to prove that the prior federal conviction qualified as a strike. The court reasoned, among other things, that the judge's "official notation describing the offense committed under section 2113(a) as 'bank robbery' . . . most likely refers to the forcible taking form of the offense" (id. at p. 1087) and "gives rise to the strong prima facie inference that defendant pled to, and was convicted of, a crime California considers a serious felony" (id. at p. 1092). The court found further support in the fact that the defendant was found to have "put[] in jeopardy the life of [a] person by the use of a dangerous weapon or device within the meaning of section 2113(d) . . . . [Fn. omitted.]" (Id. at p. 1088.) The court explained: "It is highly unlikely that one charged and convicted under section 2113(a) only for entering a bank with felonious or larcenous intent, without an attempted or actual taking of property by force and violence or intimidation, would also be found, in the course of the offense, to have placed a victim's life in jeopardy by use of a dangerous weapon . . . . [Fn. omitted.] In the absence of any rebuttal evidence as to the nature of the prior conviction, the trial court was entitled, prima facie, to draw the more reasonable inference that it was for committing the California serious felony of bank robbery. [Fn omitted.]" (Ibid.)

We reach the same conclusion here. The prosecution submitted certified records, including a judgment and commitment order signed by United States District Judge, Dean Pregerson, that states Williams had pled guilty to "Attempted Armed Bank Robbery (Count 1) in Violation of 18 USC 2113 (a) (d), Use or Carrying of a Firearm During Crime of Violence (Count 2) in Violation of 18 USC 924 (c) as charged in the indictment." The court's reference to "robbery" strongly supports the inference that Williams pled guilty to the forcible taking form of the offense. His conviction under 18 U.S.C. 2113, subdivision (d), coupled with his guilty plea to a violation of "18 U.S.C. 924 (c),"[4] further bolster this conclusion. Because Williams failed to rebut this evidence, the court did not err in finding true the allegation that his prior federal conviction under 18 U.S.C. 2113, subdivision (a), qualifies as a strike under California law.

III.

Upper Term

Williams contends the court erred in sentencing him to the upper term on the robbery count "by virtue of relying on numerous prior convictions it found [him] to have committed in direct contradiction to the evidence before it that [he] had not committed those crimes." He bases this contention on the fact that his probation report lists a prior conviction for statutory rape ( 261.5) on January 14, 2000, and another for being an accessory ( 32) on April 29, 1999. According to Williams, he could not have suffered these convictions because he was in custody for the federal attempted armed bank robbery from the date of his arrest on February 18, 1998, until his release from federal prison on September 24, 2007. He further asserts that "it is not probable or certain that the trial court would have imposed the upper term absent its erroneous reliance on the inapplicable priors . . . ." We reject both claims.

While both parties identify the standard of review for his claim as abuse of discretion, Williams actually challenges the sufficiency of the evidence supporting the court's finding on aggravating circumstances. Such findings are upheld on appeal "if 'supported by available, appropriate, relevant evidence.' [Citations.]" (People v. Black (2007) 41Cal.4th 799, 818, fn. 7.) Aggravating circumstances need only be proven by a preponderance of the evidence, and may be obtained from the probation officer's report. (Cal. Rules of Court, rule 4.420(b); People v. Sandoval (2007) 41 Cal.4th 825, 839.)

At the sentencing hearing, Williams's attorney stated that he had "a problem" with the probation report's reference to the statutory rape and accessory convictions "because [Williams] was already in custody on the [prior] bank robbery. . . . I don't know how those come about on this defendant being that he had been committed for federal custody in '99." The prosecutor responded, "[M]y understanding of it, I'm guessing, . . . is that the date of offenses were prior to his commitment and these were just subsequent convictions in which the time was concurrent." The court replied, "Probably true." Defense counsel subsequently reiterated his belief that the statutory rape and accessory convictions identified in the probation report did not belong to Williams, and added that he had never been on probation for the statutory rape as stated in the report. The court replied, "Well, so the preplea report is wrong and it shows he was convicted of P.C. 32." The court then stated, "Well, I find that he has been convicted of other crimes. He was committed three months before he committed this bank robbery. I don't think there's any mitigating circumstances. He deserves the high term of five years and that's what you're going to get on count I."

There was no error. The court did not specify which of the prior convictions it found to be true, and appeared to accept defense counsel's claim that the report erroneously referred to the statutory rape charge. As to the prior conviction under section 32, Williams offered nothing to rebut the plausible explanation that he had committed the crime prior to his federal commitment. Substantial evidence therefore supports the court's finding that Williams had been convicted of other crimes.

In any event, Williams fails to demonstrate the court would have imposed a different sentence had it not relied on the prior convictions identified in the probation report. In addressing the aggravating circumstances, the court was primarily concerned with the prior attempted armed robbery conviction, as well as the fact that Williams committed the instant offenses less than three months after he was released from a lengthy prison sentence for that conviction. The court also noted that it was imposing the upper term based in part on its decision to refrain from imposing a consecutive sentence on the charge of being a felon in possession of a firearm. Under the circumstances, there is no basis for us to conclude that the court would have sentenced Williams to a lesser term in the absence of the prior convictions he now challenges.

DISPOSITION

The judgment as to Davis is conditionally reversed. The cause is remanded to the trial court with directions to hold a new hearing on Davis's Pitchess motion in conformance with the procedures described herein. If the trial court finds there are discoverable records, they shall be produced and the court shall conduct such further proceedings as are necessary and appropriate. If the court finds there are no discoverable records, or that there is discoverable information but Davis cannot establish he was prejudiced by the denial of discovery, the judgment as to Davis shall be reinstated as of that date. The judgment as to Williams is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Gary E. Daigh, Judge

Superior Court County of Los Angeles

______________________________

Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant Davis.

Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant Williams.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All further undesignated statutory references are to the Penal Code unless stated otherwise.

[2] Vehicle Code section 2800.1, subdivision (a), punishes as a misdemeanor "[a]ny person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing police officers motor vehicle . . . ."

[3] Subdivision (a) provides in its entirety:

"Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or

"Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny --

"Shall be fined under this title or imprisoned not more than twenty years, or both."

[4] Subdivision (c)(1)(A) of 18 U.S.C. 924, in pertinent part, provides for increased punishment of "any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm . . . ."