P. v. Beck
Filed 4/26/13
P. v. Beck CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
FRED DALE BECK,
Defendant and Appellant.
F064570
(Super.
Ct. No. 10CM8957)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
Woodrow
Edgar Nichols, Jr., for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne
Le Mon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Appellant Fred Dale Beck was convicted by jury on
September 15, 2011, of one count of unlawfully
and knowingly possessing marijuana while in Avenal State Prison (Pen. Code,
§ 4573.6),
title="">[1] and the jury found true the allegation that he
had three prior strike convictions (§§ 667, subd. (b)-(i); 1170.12, subds.
(a)-(d)). After the trial court struck
two of Beck’s previous strikes, he was sentenced to the upper term of four
years in prison, doubled to eight years due to a remaining prior strike. His sentence was to run consecutively to his
current prison stay.
On appeal,
Beck contends that the trial court abused its discretion when it denied his
posttrial motion for disclosure of personnel records pursuant to
Cal.3d 531 (Pitchess), in support of
a new trial motion based on ineffective assistance of his trial counsel. The People concede that the trial court did
not make an informed exercise of discretion in denying the motion as to two of
the three officers at issue, and that a conditional reversal is necessary for
the court to hold a new hearing on the motion.
We accept the concession and remand for such a hearing.
STATEMENT OF THE FACTS
On
September 26, 2010, Officers Jason Robles and Annette Raygoza were working in
Facility 6, a visiting area for inmates’ families and friends at Avenal State
Prison. Robles had approximately nine
years’ experience in the job, Raygoza had approximately eight and one-half
years’ experience. Beck and Kenneth
Lane, another inmate, were working as porters with Officers Robles and Raygoza. Porters clean Facility 6 and help visitors
with using the vending machines and taking pictures, etc.
All inmates
leaving the visiting facility are strip-searched before being taken back to
their respective housing units in the prison to ensure that no contraband or
weapons are on their person. At
approximately 3:45 p.m., after Beck and Lane completed their shift, they were
searched by Officer Robles. Officer
Raygoza, who was a few feet away around a corner, searched Beck and Lane’s
personal and work effects.
Officer
Robles, who had worked with Beck for at least two years, thought Beck’s
behavior was unusual compared to previous strip searches; he was talkative and
appeared nervous. Officer Robles noticed
a lump in each of Beck’s socks and, when he asked him what it was, Beck
replied, “I think it’s tobacco, boss.â€
Upon Officer Robles’s request, Beck removed two small bindles wrapped in
latex glove tips, one from each sock.
Beck then said he “really messed up.â€
Officer Robles called to Officer Raygoza, who entered the room in time
to see Beck remove the items from his socks and hand them over to Officer
Robles. Both officers recognized that
the two bindles appeared to be marijuana.
Officer
Raygoza handcuffed Beck and placed him in a holding cell and escorted Lane to a
separate visiting room. She then placed
the two bindles into an evidence bag, sealed it, and placed it in the evidence
room. The two bindles were later
transported by correctional officer Alejandro Cortez to the Department of
Justice for testing and found to be marijuana.
Beck
testified in his own behalf that he and Officer Robles initially had a good
working relationship which eventually soured when Beck would no longer provide
the officer with information about illegal activity he witnessed or heard in
the prison. Officer Robles then began to
engage in acts that effectively amounted to harassment. On one occasion, Officer Robles locked Beck
in a closet after he asked him to retrieve a floor buffer. According to Beck, he was in the closet for
over an hour and fell asleep. Officer
Robles took a Polaroid picture of Beck while he was sleeping and showed it to
Officer Raygoza and Beck’s mother.
Officer Raygoza testified that she never saw the alleged photo; Beck’s
mother said she was shown a regular photo, not a Polaroid; and Officer Robles
denied the incident ever occurred.
Beck also
claimed that Officer Robles pepper sprayed him on about four separate
occasions, while he defecated when at work.
Beck did not report any of the harassment to prison officials, because
doing so would only have made matters worse.
Officer
Robles did admit to drawing a cartoon caricature of Beck, depicting the
scenario resulting in the loss of one of Beck’s fingers as a child, because
Beck suggested that Officer Robles make the drawing. Officer Raygoza, Beck, and Beck’s parents all
laughed when shown the drawing.
Beck
claimed he saw Officers Robles and Raygoza watching pornography on a cell phone
while they were working. Officer Robles
testified that it is against prison policy for officers to bring personal cell
phones to work.
On the day
of the incident in question, before being processed to return to their cells,
Beck testified that Officer Robles asked him to pick something off the floor
and Beck said that the items were not his.
Lane claimed the items looked like trash. Beck testified that he complied and handed
the items from off the floor to Officer Robles, who then asked Lane to leave
the room.
Beck
testified that he did not know for certain where Officer Raygoza was at this
point. He also testified that Officer
Robles radioed Officer Raygoza to let Lane out of the room. After Lane left the room and Officer Raygoza
entered, Officer Robles showed Beck two bindles and said, “Look what he have
here†and “ Look what our friend had on him.â€
Beck said he told the officers, “You know that’s not mine.†Beck denied telling Officer Robles that he
“screwed up,†and he knew he would be searched before being sent back to his
cell.
On
rebuttal, Officer Robles testified that anyone in the visiting room would have
felt the effects of pepper spray even if only a small amount was released in
the room. He would never pepper spray
Beck as a practical joke while Beck defecated in the restroom because he would
feel the effects as well. There was one
occasion when Officer Robles accidentally deployed pepper spray in the visiting
room when the can caught a door handle.
Beck, Officer Raygoza and another porter were all working at the time. Officer Robles immediately exited the
facility because of the spray’s effect and when he returned, Officer Raygoza
told him Beck was in the restroom.
Officer
Robles liked the visiting area kept clean.
On the day in question, Officer Robles made sure the area was clean of
debris. Officer Robles would never have
strip-searched Beck and Lane before their cleaning duties were completed
because that would allow them to retrieve something after the fact.
Avenal
State Prison discontinued use of Polaroid cameras in October or November of
2008.
DISCUSSION
Beck’s only
argument on appeal is that the trial court abused its discretion when it denied
his posttrial Pitchess motion.
Background Proceedings
15, 2011
Immediately
after the jury began deliberations, Beck’s trial counsel informed the trial
court that Officer Cortez, the court liaison officer, allegedly signaled
witnesses Officer Robles and Officer Raygoza while on the witness stand. Although the trial court stated that it did
not witness the alleged signaling during trial, it did grant the People’s motion
to preserve the courtroom video of the trial surrounding the alleged witness
signaling to exonerate Officer Cortez (hereinafter referred to as the
video).
Beck’s
trial counsel then moved for a mistrial based on witness misconduct,
prosecutorial misconduct, and due process violation. After argument on the motion, the trial court
denied the motion, but stated that it would request that the video be
preserved. The trial court also informed
Beck that it would entertain any future written motions and would reconsider
its prior decisions. The jury
subsequently found Beck guilty as charged.
Before
sentencing, Beck retained Woodrow E. Nichols, Jr., to substitute in for the
purpose of filing a motion for new trial.
29, 2011
Nichols
filed a motion for new trial alleging witness interference by correctional
officers and ineffective assistance of counsel for trial counsel’s failure to
make a timely Pitchess motion.
19, 2011
The trial
court continued sentencing to determine whether or not a Pitchess motion could be made post-trial.
January 13, 2012
Nichols
filed a posttrial Pitchess motion
seeking review of Officers Cortez’s, Robles’s, and Raygoza’s personnel
files. The California Department of
Corrections opposed the motion. In his
motion, Beck noted that his defense at trial was that Officers Robles and
Raygoza planted marijuana on him, resulting in his being falsely arrested. His Pitchess
motion alleged that Officers Robles and Raygoza committed perjury at trial and
that witness interference occurred when Officer Cortez, who was allowed to
remain in the courtroom during trial, signaled Officers Robles and Raygoza
during their testimonies so that their versions of the events coincided with
each other. The motion requested a
review of the three officers’ personnel files
to determine if they had previously engaged in similar acts, which would
support the motion for new trial based on a claim on ineffective assistance of
counsel.
March
16, 2012
At the hearing
on the Pitchess motion, counsel
argued that the first prong of a Pitchess
motion was met because both Beck and his parents witnessed Officer Cortez
signaling Officers Robles and Raygoza while they testified to ensure their
testimonies coincided with each other.
Beck’s defense was that Officer Robles told him to pick the items off
the floor in the visiting area, which he claimed were never in his socks and
were later determined to be bindles of marijuana. Officer Raygoza testified at trial that she witnessed
Beck hand the bindles to Officer Robles, although Beck and Lane both testified
that she was not in the room to witness the event.
The People
opposed the motion, arguing that Beck and his parents’ assertions that they
witnessed the alleged signaling were insufficient. The People also argued that the motion failed
to specify and explain which particular statements of the officers were
misrepresented or incorrect.
Both
parties then agreed that the trial court could make its ruling based on the video,
Beck’s declarations on his Pitchess
motion, and argument at the hearing. The
trial court then stated that it had already reviewed the video from September
14, 2011,
The video was not continuous, but instead a frame-by-frame freeze of
courtroom events. The trial court stated
that it specifically focused on the testimonies of Officers Robles
transcripts to determine when the alleged signaling occurred. Based on its review, the trial court stated
it did not notice anything abnormal because multiple parties’ movements in the
courtroom, such as leaning back and forth in their chairs, were similar to the
movements of Officer Cortez. Determining
that no signaling occurred, the trial court denied Beck’s Pitchess motion.
The trial
court then heard argument and denied Beck’s new trial motion, which was based
on the same arguments as those made at his Pitchess
motion.
Applicable Law and Analysis
To compel
discovery of confidential materials in police personnel files, a defendant must
file a motion supported with affidavits that demonstrate good cause under the
criteria of materiality to the present litigation and the reasonable belief
that these records are in the possession of the police agency; the showing
needs to meet only a relatively low threshold to compel discovery. (Evid. Code, § 1043, subd. (b)(3);
Cal.4th 1011, 1019.) Because Beck had
already been convicted, the present litigation at issue was his new trial
motion based on a claim of ineffective assistance of counsel. (People
v. Nguyen (2007) 151 Cal.App.4th 1473, 1475, 1478.) Upon finding good cause, the trial court must
then review the records in camera and disclose “only that information falling
within the statutorily defined standards of relevance.†(Warrick
v. Superior Court, supra, 35 Cal.4th at p. 1019.)
To
determine what constitutes materiality, defense
counsel must propose a defense logically linked to the pending charges that
involves a plausible and specific scenario of police misconduct, and articulate
with specificity the type of evidence of misconduct the motion seeks, as well
as the manner in which it would support the defense with admissible evidence
(or lead to admissible evidence supporting the defense), or impeach the
accounts of any officers involved in the defendant’s arrest. (Warrick
v. Superior Court, supra, 35 Cal.4th at pp. 1021, 1026-1027.)
A trial
court’s decision on a Pitchess motion
is reviewed under an abuse of discretion standard. (People
v. Jackson (1996) 13 Cal.4th 1164, 1220-1221, citing People v. Breaux (1991) 1 Cal.4th 281, 311-312.) The exercise of such discretion “must not be
disturbed on appeal except on a showing
that the court exercised its discretion in an arbitrary, capricious or patently
absurd manner that resulted in a manifest miscarriage of justice.†(People
v. Jordan (1986) 42 Cal.3d 308, 316.)
Beck
contends that the trial court abused its discretion in denying his
acts of dishonesty by Officers Cortez, Robles and Raygoza. We agree as to Officers Robles and Raygoza,
and respondent concedes the issue.
Officers
Robles and Raygoza testified that they were present at the time marijuana was
found on Beck’s person. Beck alleged in
his Pitchess motion that the officers
planted the evidence against him. This
claim meets the “relatively low threshold for discovery ….†(City
of Santa Cruz v. Municipal Court (1989)
49 Cal.3d 74, 83.) There is a
logical link between Beck’s defense, that the marijuana was planted on him, and
the claim of ineffective assistance based on the claim that had trial counsel
made the Pitchess motion during trial
it would have resulted in discoverable information that would have helped
support his defense of impeaching the officer’s version of the events. (Warrick
v. Superior Court, supra, 35 Cal.4th at p. 1021.) Respondent accordingly concedes that Beck
established good cause to review Pitchess
material relating to acts of dishonesty by Officers Robles and Raygoza.
“[T]he
proper remedy when a trial court has erroneously rejected a showing of good
cause for Pitchess discovery and has
not reviewed the requested records in camera is not outright reversal, but a
conditional reversal with directions to review the requested documents in
chambers on remand†and grant any appropriate discovery. (People
v. Gaines (2009) 46 Cal.4th 172, 180.)
Here, that discovery would consist of any information that would lead to
a different trial result. (
at p. 1478.)
But
respondent disagrees, as do we, that the trial court erred when it refused to
review Officer Cortez’s personnel files.
Beck did not claim Officer Cortez helped plant the marijuana on him or
that he was present at the time of the incident. And although Beck claims he was entitled to
discovery of Officer Cortez’s personnel file because he allegedly signaled Officers
Robles and Raygoza during trial, the trial court reviewed the video several
times, focusing on Officers Robles’s and Raygoza’s testimonies, and
specifically found that no signaling occurred.
We cannot say that the trial court abused its discretion when it refused
to review Officer Cortez’s personnel records.
The
judgment is conditionally reversed and remanded. The trial court is directed to conduct a new
conduct an in camera review of any records relating to alleged acts of
dishonesty by Officers Robles and Raygoza and order discovery of any
discoverable information that would lead to a different trial result. (People
v. Nguyen, supra, 151 Cal.App.4th at p. 1478.) If there is no discoverable information or
prejudice to Beck from the denial of the original motion, the judgment and
order shall be reinstated as of the date of its ruling to that effect.
name="_ftn1" title="">* Before
Kane, Acting P.J., Franson, J., and Peña, J.
name="_ftn2" title="">[1] All
statutory references are to the Penal Code.
